The only shock about the UK Home Secretary’s decision regarding the extradition of Julian Assange was that it did not come sooner. In April, Chief Magistrate Senior District Judge Paul Goldspring expressed the solemn view that he was ‘duty-bound’ to send the case to Priti Patel to decide on whether to extradite the WikiLeaks founder to the United States to face 18 charges, 17 grafted from the US Espionage Act of 1917, and one based on computer intrusion.
Prior to making her June 17 decision, the Home Secretary could not claim to be ignorant of the circumstances facing the Australian publisher. In April, an umbrella grouping of nineteen organisations dedicated to the press freedom and free speech urged Patel, in reviewing the case, to appreciate that Assange would ‘highly likely’ face isolation or solitary confinement in US conditions ‘despite the US government’s assurances, which would severely exacerbate the risk of suicide’.
The letter also warned that Assange ‘would be unable to adequately defend himself in the US courts, as the Espionage Act lacks a public interest defence.’ Prosecuting him ‘would set a dangerous precedent that would be applied to any media outlet that published stories based on leaked information, or indeed any journalist, publisher or source anywhere in the world.’
On June 10, a letter from the group Doctors for Assange, comprising 300 doctors, psychiatrists and psychologists, noted that the Home Secretary’s ‘denial of the cruel, inhuman treatment inflicted by upon Assange was then, and is even more so now, irreconcilable with the reality of the situation’.
Unfortunately for the relentless doctors, Patel could simply point to the whittling away of the mental health defence that has been so crucial to Assange’s lower court victory in January 4, 2021. District Judge Vanessa Baraitser, at first instance, ruled that Assange would be at serious risk of suicide given the dangers posed by Special Administrative Measures and the possibility that he would end his days in the ADX Florence supermax facility. The implication was clear in all its starkness: the US prison system could well prove lethal. Extraditing him, it followed, would be oppressive within the meaning of the US-UK Extradition Treaty.
'Evidently, overt politicisation, bad faith, and non-binding reassurances from the US Department of Justice on how Assange will be treated, do not constitute sufficient grounds to prevent extradition.'
In reaching her decision, Patel could not bring herself to make a personal announcement. ‘Under the Extradition Act 2003,’ a nameless spokesman for the Home Office stated, ‘the Secretary of State must sign an extradition order if there are no grounds to prohibit the order being made. Extradition requests are only sent to the Home Secretary once a judge decides it can proceed after considering various aspects of the case.’
Evidently, overt politicisation, bad faith, and non-binding reassurances from the US Department of Justice on how Assange will be treated, do not constitute sufficient grounds to prevent extradition. In this, the Home Office could rely on the findings of the High Court and Supreme Court, which accepted DoJ assurances that Assange would not face special administrative detention measures (SAMs) or permanent captivity in the ADX Florence supermax in Colorado.
In their December 2021 decision, the High Court refused to ‘accept that the USA refrained for tactical reasons from offering assurances at an earlier stage, or acted in bad faith in choosing only to offer them at the appeal stage.’ There was nothing suggesting that such assurances had been given other than in ‘good faith’. It followed that Assange’s suicide risk would be minimised, thereby removing a vital pillar of the defence.
Instead of delving into the matter, the Supreme Court found no basis to reverse the High Court’s ruling. In the words of the Deputy Support Registrar, ‘The Court ordered that permission to appeal be refused because the application does not raise an arguable point of law.’
It was all left to the Home Office to recapitulate the views of the judges. ‘In this case the UK courts have not found that it would be oppressive, unjust or an abuse of process to extradite Mr Assange.’
'In simple terms, the bill is a generous tribute to the US Espionage Act that forms the basis of the indictment against Assange.'
Another vital point was always going to disadvantage Assange’s appeal. Even as Prime Minister Boris Johnson faced a Conservative no-confidence vote in June, Patel’s National Security Bill passed its second reading in Parliament. The bill articulates an offence of ‘obtaining or disclosing protected information’ that includes ‘any information… which either is, or could reasonably be expected to be, subject to any type of restrictions of access for protecting the safety and interests of the UK.’
In simple terms, the bill is a generous tribute to the US Espionage Act that forms the basis of the indictment against Assange. The proposed law states that an offence is committed when a person ‘obtains, copies, records or retains protected information, or discloses or provides access to protected information’ for a purpose ‘that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom’ and if ‘the foreign power condition is met’. That requirement is met if the act is ‘carried out for or on behalf of a foreign power’, including instances where ‘an indirect relationship’ exists.
The co-chairs of the Courage Foundation’s Assange Defense Committee, Noam Chomsky, Daniel Ellsberg and Alice Walker, summarised their views on Patel’s decision in a statement. ‘It is a sad day for western democracy. The UK’s decision to extradite Julian Assange to the nation that plotted to assassinate him – the nation that wants to imprison him for 175 years for publishing truthful information in the public interest – is an abomination.’ The UK government had also ‘shown its complicity in this farce, by agreeing to extradite a foreigner based on politically motivated charges that collapse under the slightest scrutiny.’
Similar views were expressed by human rights organisation Amnesty International, which interpreted Patel’s determination as ‘a chilling message to journalists the world over’, while Reporters Without Borders saw it as ‘another failure by the UK to protect journalism and press freedom’. Nor were these views confined to the narrow sphere of activism or the periphery of Assange’s support base. Conservative MP David Davis, in condemning the US-UK Treaty as lopsided in favouring US citizens, was adamant that Assange was hardly likely to ‘get a fair trial.’
Assange’s legal team has appealed to the High Court, drawing attention to the overtly political nature of the case and the incongruous way the extradition law was read. But the same, previously unsympathetic judicial body must agree to hear the appeal before proceeding. The prospects for the Australian publisher, and for those publishing national security material, look bleak.
Dr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.
Main image: Protesters gather to demand Julian Assange's release outside the Home Office in London, England. A UK court formally approved the extradition of Julian Assange to the US on espionage charges in April. The ultimate decision on his extradition lay with the UK's Home Secretary, Priti Patel. (Dan Kitwood/Getty Images)