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In a rebuke of the standing of Americans diplomatic assurances given by the London Embassy of the United States of America, the High Court in London has ruled to allow Mr. Julian Assange to appeal his extradition.
On Monday afternoon, two U.K. High Court judges ruled partially in favor of WikiLeaks founder Mr. Julian Assange, in his battle against extradition to the United States. Dame Victoria Sharp and Justice Jeremy Johnson will allow Mr. Assange to appeal to the High Court on two remaining legal grounds, concerning whether Mr. Assange would be entitled to a First Amendment defence and whether he would be discriminated against on the basis of his nationality if tried in the United States of America.
“Obviously, this is a critical hearing because it could be Assange's last court appearance in the UK,” wrote Naomi Colvin, director for the non-profit charity Blueprint for Free Speech, when reached for comment. “The main issue being argued today is whether Assange would be entitled to First Amendment protections in the United States. Freedom of speech is a universal human right available to everyone, not a special privilege for US citizens. This seems to be lost on the US government, who are not willing to give this basic guarantee – in fact they're objecting to even being asked to. This just underlines how Assange could not expect to have any semblance of fair legal process in the United States.”
What Stella Assange said
Prior to entering the Royal Courts of Justice this morning around 10:00am London time, Mrs. Stella Assange thanked “the millions of people around the world who are supporting Julian and protesting. We hope that the courts do the right thing today and find in Julian’s favour, but if they don’t, we will seek an emergency injunction from the European Court of Human Rights.” Former U.K. Labour party leader Jeremy Corbyn also complimented the crowd of supporters, who have been ‘outside the prison, every court hearing, march, demonstration, and rally, all at their own expense,’ because “they believe very strongly that Julian must be freed.”
Starting at 10:30 London time and lasting for around two hours, the two High Court judges heard arguments and counter-arguments regarding whether the purported diplomatic assurances offered by the U.S. Embassy in London had sufficiently responded to the court’s concerns. A copy of the assurances, in the form of a diplomatic note, had been published on Twitter/X last month by New York Times’ London correspondent Megan Specia. At time of writing, an official copy of the assurances has still not been published directly by the Embassy, the U.K. government or the court. The U.S. State Department and the U.S. Embassy in London have so far failed to provide them, and other diplomatic notes referenced in the document, in response to a freedom-of-information (FOI) request.
Constitutional protections for foreign nationals in the US
Defence barrister Edward Fitzgerald KC opened the hearing by arguing that the U.S. government has not “promise[d] that the applicant can rely on the First Amendment, merely that he can raise and seek to rely on it.” As der Freitag reported on in April, this meant in practice that Mr. Assange ‘will be allowed to attempt to argue’ that he can rely on the First Amendment as part of his defence, but the U.S. court could simply deny this attempt. “Therefore this is plainly an inadequate assurance,” Mr. Fitzgerald confirmed.
To assist the court in understanding precedent in U.S. case law regarding the question of constitutional protections for foreign nationals, expert testimony from Dr. Elizabeth Grimm was submitted as evidence. Prof. Dr. Grimm is an associate professor at Georgetown University, a retired U.S. district judge, and previously held positions at “the State Department’s Diplomatic Security Service, the National Security Agency, the Department of Defense and the National Counterterrorism Center.” Her testimony was "supportive of Mr Kromberg’s assertion that a foreign national does not possess First Amendment rights, at least in relation to national security cases," the defence filing says. Federal prosecutor Gordon D. Kromberg, whose analysis the prosecution has heavily relied on throughout the case, has consistently stated that “‘concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protection under the First Amendment, at least as it concerns national defence information.’”
In addition to his nationality, another important factor concerns that the criminalized conduct occurred abroad and not on U.S. soil. Quoting Prof. Dr. Grimm, Mr. Summers stated: “Speech undertaken by non-US citizens on foreign soil is without First Amendment Protection.”
James Lewis KC, representing the U.S. government, made arguments regarding the test of the “serious possibility” of Mr. Assange being discriminated against. The ‘serious possibility’ standard of proof has commonly been used in extradition and asylum cases to weigh the risk of discrimination and persecution by the requesting State and/or country of origin, especially where refugee protections or the political offense exception have been invoked. Mr. Lewis essentially argued that the U.S. government assures that Mr. Assange could not be discriminated against based on his ‘nationality’ rather than his ‘citizenship,’ drawing the distinction that they are not synonymous because ‘nationality’ is narrower and relates to one’s place of birth. “The High Court was wrong to equate prejudice on grounds of foreign nationality with discrimination on grounds of foreign citizenship,” wrote the defence in summarizing the prosecution’s argument. And “if the Applicant was debarred from relying on the First Amendment, ‘his foreign citizenship would be just one factor’” in that decision. In his concluding reply, Mr. Fitzgerald said that this debate introduced too many new issues of fact and law for the court to determine today, and hence presented more necessity for an appeal hearing.
One demand to U.S. President Joe Biden
Ben Watson KC, representing the U.K. Home Secretary (SSHD), made a brief statement that the judges should dismiss Mr. Assange's request for leave to appeal her decision. Former Home Secretary Priti Patel had approved and authorized the U.S. extradition request back in June 2022.
Once the arguments from all parties had concluded, the judges spoke off-mic to each other and then called for a ten-minute break. Everyone remained in court while the judges conferred privately for longer than the expected ten minutes. Around 12:40, the judges announced that they had decided to grant partial leave to appeal, on the fourth and fifth grounds. The remaining ground concerning the death penalty was rejected, implying that they found the U.S. diplomatic assurance on that issue to be sufficient. They further established that the parties have until Friday afternoon on May 24th to file a case outline for a future appeal hearing before the High Court.
As Mrs. Stella Assange exited court with WikiLeaks’ acting editor-in-chief Kristinn Hrafnsson and advocate Joseph Farrell, she reiterated her demand to U.S. President Biden: “As a family, we are relieved. But how long can this go on? The United States should read the situation and drop this case now. Now is the moment to do it.”
