The UK high court has extended WikiLeaks founder Julian Assange’s hope to avoid espionage charges in the United States, allowing Assange to further challenge his extradition from the UK to the US.
In a ruling issued in London on Tuesday, two high court judges said that Assange will not be immediately extradited to the United States. In a press summary of the 60-page decision, the court said Assange has a “real prospect of success” in appealing his extradition order and that it requires the US and UK to make further “assurances” about his treatment if he were to be extradited.
“The Court has given the Government of the United States three weeks to give satisfactory assurances: that Mr Assange is permitted to rely on the First Amendment to the United States Constitution (which protects free speech), that he is not prejudiced at trial (including sentence) by reason of his nationality, that he is afforded the same First Amendment protections as a United States citizen and that the death penalty is not imposed,” the press summary says.
In what will be seen as a temporary reprieve for Assange, the judges said a further hearing will take place on May 20, 2024, after officials in the US have provided more information in response to the case. Judges Victoria Sharp and Adam Johnson said that if US officials cannot provide assurances about Assange’s treatment if he is extradited, then a full appeals hearing will take place. If this happens, there is a chance Assange will not be extradited.
The summary of the decision says that the UK government agrees there is a possibility Assange, who is Australian, “could” be charged with offenses that carry the death penalty, and, therefore, the court “considers it is arguable” the initial extradition order shouldn’t have been granted. The judges dismissed six of the arguments Assange’s lawyers made during the application to appeal, including that he faced prosecution based on his political opinions.
Assange’s extradition was first authorized by the British government in June 2022, more than three years after his arrest. The appeals process was repeatedly delayed by the Covid-19 pandemic and Assange’s own deteriorating health—a result, his doctors say, of his prolonged pretrial confinement and his previous stay in the Ecuadorian embassy in London, where he lived under asylum for nearly seven years.
The embattled WikiLeaks founder faces an 18-count indictment in the US, which alleges a conspiracy to commit computer crimes and, most significantly, violations of the Espionage Act for soliciting and publishing classified information related primarily to the US-led wars in Iraq and Afghanistan.
For Assange, his supporters, and the US government, Tuesday’s ruling has been a long time coming, culminating more than four years of legal battles in the UK. The extensive delay inevitably gave rise to a flood of analysis and conjecture from legal scholars, human rights defenders, and envoys of the US intelligence system, spawning myriad theories about the ultimate repercussions of his potential capture, trial, and imprisonment.
Free press advocates have argued the charges against Assange amount to an attack on legal journalistic activities, portrayed by prosecutors as crimes against the state. The right of journalists to publish stolen or leaked information, even when classified “secret,” has been repeatedly affirmed by the US Supreme Court.
US prosecutors allege that Assange in 2010 took matters a step further than what is legally permitted, encouraging then WikiLeaks source Chelsea Manning to violate the law further by stealing additional files, and by offering to help her crack a hashed password that would have, ostensibly, furthered her access inside a classified Defense Department network.
Though it is unclear whether any of Assange’s offers actually aided Manning or resulted in any additional files being leaked, under the scope of US law, legal experts widely agree, success is beside the point.
Manning, a former US Army intelligence analyst, confessed during a court martial in 2013 to leaking more than 725,000 documents to WikiLeaks, though her conviction pertains only to portions of hundreds of documents. Manning was accused but acquitted of “aiding the enemy.” Her 35-year prison sentence was commuted in January 2017 by former US president Barack Obama in one of his final acts of office.
The Espionage Act, under which Assange is charged, is among the most controversial in the nation’s criminal code, wielded by prosecutors against whistleblowers and national security leakers with the same intensity as any captured traitor or spy.
Speaking outside of the court following the ruling, according to the BBC, Stella Assange, the wife of Julian, said she is “astounded” by the decision, and that the court has invited “a political intervention from the US” by allowing for further assurances to be provided. She argued that the US should drop the potential prosecution of Assange. “This is a shame on every democracy,” she said.
Much of the US case is based on digital logs of conversations held between WikiLeaks associates and accounts allegedly manned by Assange himself. Ironically, most if not all of this evidence has itself been leaked over the years or otherwise amassed by independent researchers. Distributed Denial of Secrets (DDOS), a WikiLeaks successor, has compiled at least hundreds of thousands of pages of relevant documents from various confidential sources, including those targeted by FBI informers and by the bureau itself via search warrants.
A private database created by DDOS, reviewed by WIRED, currently contains roughly 100 GB of WikiLeaks material, including hundreds of thousands of internal emails and tens of thousands of chat logs, many bearing account names known to have been used by Assange personally.
Despite being rigorously cataloged by DDOS researchers, it remains difficult to quantify how many individuals’ communications were logged, due to the sheer volume of text. The anti-secrecy organization’s earliest files pertaining to Assange’s activities online date back 30 years.
Emma Best, a journalist and cofounder of DDOS, says it is believed the organization possesses all—or nearly all—of the recorded conversations cited in the US government’s indictment. A large percentage of internal WikiLeaks chatter is said to have been recorded by Sigurdur Thordarson, a former WikiLeaks associate, in the years and months prior to his betrayal of the organization.
Following his stint as an FBI informer in 2011, Thordarson faced multiple convictions in Icelandic court for sex crimes involving minors and for fraud in relation to funds embezzled from WikiLeaks. According to Best, a close inspection of the files would shed even further doubt as to Thordarson’s reliability, as he often mischaracterizes statements by Assange when communicating with other WikiLeaks associates and supporters.
Best says making the WikiLeaks files public is a priority due to the US’s aggressive moves in the case and the international repercussions, but distribution remains limited currently to trusted professionals, primarily for privacy reasons. WIRED’s review found that the documents identify countless individuals, including many who are not affiliated with WikiLeaks. Additionally, while the US and UK governments presumably have access to all or most of the same files, Best says, other governments, which could seek to act upon them legally, likely do not.
“The case against WikiLeaks and Assange is as misunderstood as it is secretive and important, problems worsened by the many liars involved and the largely vibes-based analysis of it,” she tells WIRED. “The first step to fixing this is simple: Leak the case.”
Assange’s case has garnered scrutiny from human rights groups, many evaluating the conditions inside US prisons as too brutal and lousy to be considered anything but cruel and inhumane.
Concerns over American prison conditions posed a major hurdle for US prosecutors in 2021 after the UK high court ruled the odds that they would result in Assange’s death by suicide as unacceptable. The court decided that the US successfully mitigated these concerns by offering assurances that Assange would not face certain treatments that, while commonplace in the US, are widely gauged to run afoul of international law, including the use of extreme isolation.
The US’s assurances did little to quell protests from rights groups and Assange family members, as they’d been offered in the past to little effect. Frequently highlighted is the case of British poet Syed Talha Ahsan, who was kept in solitary confinement for years in a Connecticut “supermax” prison known as the Northern Correctional Institution. The prison closed in June 2021.
A key assurance offered by the US is that Assange will never be confined at another supermax prison, Colorado’s ADX Florence, which currently cages more than 300 people. The use of prolonged isolation, common within the prison but employed throughout the US, has been labeled “torture” by current and past United Nations prison watchdogs. Repeated studies have shown prolonged isolation to have deleterious and potentially irreversible effects on the human brain, leading to significantly higher rates of suicide, homicide, and opioid dependence among incarcerated people upon their release.
Another assurance offered by the US is that Assange will not be subjected to “special administrative measures,” an Orwellian euphemism for the government surveilling a prisoner’s attorney-client communications. Among other justifications, the US can implement this procedure—known as SAM—by claiming the monitoring is necessary to “prevent the disclosure of classified information.”
If convicted, Assange’s lawyers say he faces a maximum of 175 years in prison, though US prosecutors have downplayed in the press the likelihood of him receiving such a lengthy sentence.
The ruling from the UK high court likely means that the long-running case will be extended even further. The US government has until April 16 to file any further assurances about Assange’s free speech rights, his nationality, and the potential for the death penalty. If the US doesn’t send the court any further assurances, Assange will be able to appeal his extradition in a full hearing. However, if further assurances are sent to the court, a hearing on May 20 will take place to consider whether an appeal will go ahead.
