UK High Court delays Assange appeal

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In a 66-page decision last week, a two-judge panel of the High Court in the United Kingdom delayed a final ruling on whether WikiLeaks founder Julian Assange can appeal his extradition to the United States on espionage and computer crime charges. The court halted proceedings until May 20, 2024, to give the U.S. government time to offer additional diplomatic “assurances” on how Assange’s prosecution would proceed. If the U.S. decides to do so, it must present them by mid-April. If it does not, then Assange will be able to continue to challenge his extradition in the U.K.

Specifically, the U.K. High Court asked the U.S. to “assure” three things: that Assange will be permitted to rely on the First Amendment; that he, as an Australian citizen, will not be prejudiced at trial (including his sentence) by reason of his nationality; and that he will not receive the death penalty.

The court’s reasoning behind requiring the first and second assurances is a bit in the weeds, and they’re closely interconnected.

The key thing to understand is that the U.K. courts would have to deny the extradition if it found that prosecuting Assange would constitute a “flagrant” violation of Article 10 of the European Convention on Human Rights, the qualified guarantee of free expression rights for members of the Council of Europe (not to be confused with the European Union), to which the U.K. still belongs. The court found that, were Assange afforded First Amendment protections as if he were a U.S. person, that would be enough to prevent a flagrant violation of Article 10. In other words, the First Amendment offers sufficiently analogous protections to Article 10.

(To be sure, the court did not find that Article 10 would bar prosecutions for publishing national security secrets, which makes sense given that the U.K. has an Official Secrets Act that permits exactly that.)

The issue that prompted the court to seek assurances is one that has been lurking in the background of the case from the beginning: whether First Amendment protections even apply to actions overseas by a non-U.S. person.

That is, in submissions to the lower court, one of the prosecutors wrote that the government has “arguments against potential” U.S. constitutional challenges to the prosecution by Assange, including “that foreign nationals are not entitled to protections under the First Amendment, at least as it concerns national defense information.” Importantly, that statement was made without “binding the United States to any position,” but the High Court found that the prosecutor wouldn’t have said it “unless [it] was a tenable argument that the prosecution was entitled to deploy with a real prospect of success.”

The court therefore found that Assange had made an “arguable” case that the decision by the lower court to send the extradition to the Home Secretary was wrong because Assange could be prejudiced by dint of his Australian nationality (based on the possibility that he would not be afforded First Amendment protections at trial). And “as a consequence of” that finding and “only as a consequence of” that finding, he had made an arguable case under Article 10.

It’s also worth noting that the preceding findings do not apply to the bulk of the charges against Assange. The second superseding indictment includes 18 charges that can be broken down into three buckets. Counts 1, 3-14, and 18 all charge various forms of conspiracy or other “inchoate” crimes to violate the Espionage Act based on Assange’s interactions with Chelsea Manning. Count 2 is a computer crime charge, alleging Assange conspired with Manning to hack classified government systems. But counts 15-17 are what we’ve been calling “pure publication” charges. That is, they charge Assange directly under the Espionage Act, 18 U.S.C. § 793(e), based exclusively on the publication of government secrets online.

The High Court found that those were the only counts that implicated Article 10 or the First Amendment, and that the other charges “may be described as ordinary criminal offences viz, in ordinary language, conspiracy to obtain national security information and hacking[.]”

In any event, the U.S. has until April 16 to offer those assurances. We’ll be watching closely to see what it does.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.