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Legitimised judicial captivity: The Assange case

  • 16 December 2021
  On 10 December, the High Court of England and Wales reversed the 4 January lower court decision to halt the extradition of Julian Assange to the United States. The US Department of Justice (DoJ) is seeking the extradition of the WikiLeaks founder to face 18 charges, 17 based on the US Espionage Act 1917.

The central contention of the prosecution is that Assange was complicit in illegal acts to obtain or receive voluminous databases of classified information; agreed and attempted to obtain such information through computer hacking and published classified documents that were unredacted, revealing the names of US informants, religious figures, dissidents and human rights advocates. The charges avoid the thorny issue that Assange, in releasing such classified material, exposed US atrocities, war crimes, torture and general human rights abuses.

This legal pursuit is disturbingly unique not only for using an archaic law against a non-US national; it is also the first instance of an international application of it against a publisher.

The law, if applied in the way suggested by the charges, criminalise the receipt, dissemination and publication of national security information, irrespective of motive. If the US Espionage Act 1917 were applied in this way, it would appear to subvert the free press provision in the United States Constitution.

Were the US to be successful — and the 10 December decision comes one step closer — it would give the green light to every other country to use laws of espionage to target publishers, in similar extradition proceedings, for revealing material that exposes atrocities and human rights abuses.

The 4 January decision by District Court Judge Vanessa Baraitser accepted the defence argument that extradition to the US would be ‘oppressive’ given ‘his mental condition’. The defence had adduced neuropsychiatric evidence that Assange was autistic and would be at serious risk of suiciding in the US prison system. The prosecutors were unsuccessful in convincing the court that he would not be subjected to Special Administrative Measures that would restrict his access to legal counsel, family, and place him in solitary confinement. They also failed to show that he would not, on being convicted, serve his time in the notorious ADX Florence supermax prison, known as the ‘Alcatraz of the Rockies’.

'The High Court judgment also makes no reference to the abundant evidence submitted by the defence at both the extradition hearing and the appeal: that US government officials had contemplated abducting and assassinating the