The High Court has granted WikiLeaks founder Julian Assange leave to appeal against extradition to the US to face charges under US espionage and computer crime laws.
The court granted the 52-year-old leave to appeal after defence lawyers questioned US assurances that Assange would not face discrimination in a US trial because of his nationality.
The 52-year-old is charged with 17 counts under the US Espionage Act 1917 and one count under the US Computer Fraud and Abuse Act over WikiLeaks’ 2010 publication of documents leaked by US Army whistleblower Chelsea Manning.
The hearing was attended by large numbers of Assange supporters who amassed outside London’s High Court with banners.
The decision came after the High Court sought diplomatic assurances from the US government in March 2024 that Assange would not face the death penalty if extradited and would be allowed to use the US First Amendment, which guarantees free speech, in his defence.
Edward Fitzgerald KC, representing Assange, told the court that he accepted that the US government had provided “an unambiguous promise” not to charge Assange with a capital offence, meaning that Assange was not at risk from the death penalty.
But he told the court that the US government had failed to give proper assurances that Assange would be able to rely on the US First Amendment, which gives rights to freedom of expression, as part of his defence.
Assange, who is an Australian citizen, would be discriminated against in the US because of his nationality and would not be allowed to rely on the First Amendment, the court heard.
“We say it’s a blatantly inadequate assurance,” he said. “It would cause the applicant prejudice on the basis of his nationality.”
The court heard that US prosecutor Gordon Kromberg had only given an assurance that Assange would be able “to seek to raise” the First Amendment at a trial in the US.
Kromberg or the prosecution had given no specific assurance that Assange would be allowed to rely on the US constitution in his defence in practice, the court heard.
Kromberg had created the concern by stating that a court in the US could find that a non-US citizen would not be able to argue the First Amendment in national security cases.
Defence expert professor Paul Grimm, a former US district judge with a military law background, had given “unimpeachable evidence” in a witness statement that the US government’s diplomatic assurance could not bind a US court.
Fitzgerald said prosecutors normally give assurance or undertakings, but that Kromberg’s silence – over Assange’s rights under the US constitution – was “deafening”.
He quoted examples of cases where the US government had given undertakings that prosecutors would not seek a life sentence but the court had reversed the undertaking.
In written submissions, Assange’s legal team argued that the US assurance that Assange would be able to raise the First Amendment if he was tried in the US was not an assurance at all.
“What needs to be conclusively removed is the risk that he will be prevented from relying on the First Amendment on grounds of nationality,” they argued, adding that without any assurance of how a prosecutor would respond to arguments made in a US court, “the ability to raise and rely on the First Amendment means nothing”.
They said there were “multi-fold” problems with the assurance, which did not rule out the US court barring Assange from relying on the First Amendment on the grounds that he is not a US citizen.
The assurance “does not bind the prosecution” to any position and a US court could over-turn any undertaking, the court heard.
“We say this assurance … cannot reassure the court there is no risk. The real risk remains,” said Fitzgerald.
US Espionage Act
The case is the first time the US has used the US Espionage Act 1917 against an individual for publishing leaked government documents for journalistic purposes.
Today’s hearing comes after a panel of two judges heard Assange’s appeal against extradition on 20- 21 February 2024.
Assange sought leave to appeal against the secretary of state’s decision to extradite him and a ruling by district judge Vanessa Baraitser in January 2021.
The High Court rejected six out of nine grounds for appeal in a ruling on 26 March 2024, including an attempt to introduce new evidence about an alleged CIA plot to kill Assange.
The court did, however, find there were three grounds on which Assange had prospects for success.
They included a refusal by the US to allow Assange First Amendment rights under the US constitution on the grounds he was not a US citizen, which the court said would interfere with his rights to freedom of expression under Section 10 the European Court of Human Rights.
Representing the US government at today’s hearing, James Lewis KC said Assange’s nationality was not at issue, but it was the legal factual matter that Assange was not a US citizen.
He said that Article 10 of the European Convention of Human Rights gives protection to journalists and whistleblowers subject to them acting “within the tenants of reasonable and responsible journalism”.
“One of the factors whether it is reasonable and responsible is where publication took place – inside a member state’s territory or outside a member state’s territory.”
He said there was a difference between a foreign spy publishing something abroad that damages national security and publishing something in The Times newspaper.
Lewis said the US diplomatic assurance made it clear that Assange would not be discriminated against because of his nationality and that he would be able to raise arguments about his First Amendment rights.
“The point is he will be able to rely on it but that does not mean the scope will cover the conduct he is accused of,” said Lewis.
He told the court that former US Army whistleblower Chelsea Manning, who had leaked documents to WikiLeaks, had no First Amendment protection whatsoever.
There was no possibility of First Amendment rights being extended to Assange, he suggested.
Responding for Assange, Mark Summers KC said the law prohibits discrimination in the trial and sentencing process.
“The fact that Chelsea Manning was found in the end to have no substantial First Amendment claims tells you nothing at all. She was a government employee not a publisher,” he said.
Fitzgerald said it was simply not correct that Assange would be able to rely on the First Amendment. It was clear he could “only seek to rely on it”.
He said there were too many issues of fact that remained unanswered, including the position of the prosecution and too many issues of law that are unresolved to take the irrevocable step of extraditing Assange.
Dame Victoria Sharp, who heard the case with Justice Johnson, granted leave to appeal following a half-day hearing.
She ordered the prosecution and defence to agree on a draft order by 6:00pm on 24 May 2024.
The appeal will be heard at a later date.