US in high-risk legal gamble as court grants Assange leave to appeal extradition
May 22, 2024
The US is playing a high-risk legal game in refusing to fold its tent and walk away from the prosecution of Australian citizen Julian Assange for exposing US war crimes.
A few weeks ago US President Joe Biden told reporters he was ‘considering’ Australia’s request to end the pursuit of WikiLeaks founder Julian Assange. The US has been seeking to extradite Assange over the publication by WikiLeaks of classified information in 2010 which revealed, among other things, US war crimes in Iraq. Last night’s decision by the UK High Court to allow Assange leave to appeal on grounds concerning his being discriminated against in a US court – by not being guaranteed the right to rely on a freedom of expression defence (the First Amendment of the US Constitution – because he is not a US citizen, should have President Biden moving to accede to Prime Minister Anthony Albanese’s request.
In essence, and this would trouble all Australians, not just lawyers, the US is saying Assange, as a non citizen, can argue the case for the First Amendment protections being a defence to the publications, but is not guaranteed this right. Can you imagine if a prosecutor in an Australian criminal trial argued that only Australian citizens can argue some defences as of right!
The risk now for President Biden and the US is that if it loses the full appeal, in respect of which no date has been set, it will be a monumental loss given the no doubt billions of dollars spent on resources in pursuing Assange for 14 years. Republican candidate Donald Trump would gleefully use it to further sharpen his attacks on Biden’s competence. Or he might get in first and announce he would pardon Assange, Time for the US to consider the smartest option and get out while it can. Drop the charges and allow Assange to live his life with his wife Stella and their two sons.
This is a line Mr Albanese, Foreign Minister Penny Wong and Attorney-General Mark Dreyfus can push with Washington. They can provide President Biden with political cover because they can point to overwhelming support in Australia for ending the case against Assange, reflected in Independent MP Andrew Wilkie’s motion in February this year in which 86 MPs voted for dropping the charges against Assange and only 42 opposed, many of whom were concerned only with the wording of the motion. In other words, we are from Australia, President Biden, and we are here to help.
The US case has always been, and is revealed to be even more so now, putting lipstick on a pig as Stella Assange said after the hearing yesterday. She is right. The reason that the New York Times and other news outlets that published the Wikileaks material fourteen years ago is because they would simply point to the First Amendment and it would be game over. To go after Assange based on his not being a citizen of the US is highly discriminatory. It is an anathema to the rule of law, one of the principles of which is equality before the law.
And as noted above the US is playing a high risk legal game in refusing to fold its tent and walk away. As Professor Holly Cullen from the University of Western Australia has put it in The Conversation this morning; “This appeal will be legally groundbreaking. The European Court of Human Rights has never decided a case arguing extradition would violate freedom of expression, so the High Court will be the first to decide whether a potential violation of freedom of expression could be a bar to extradition.”
And what about the UK? It is of course part of the AUKUS deal which cements further the relationship between the US, Australia and it. There is no reason for it not to get involved with Australia in lobbying the Biden Administration. While the UK is not pursuing Assange, the Sunak government must sign off on approving the extradition if Assange loses the appeal. So it has skin the game as well.
The Assange case has never been about anything other than the US seeking to deter other courageous publishers and journalists from revealing that nation’s serious wrongdoings around the world. If Assange had been flown to the US yesterday then there would have been sighs of relief in the Pentagon and the State Department. Fortunately that didn’t happen. But it’s not over. Which is why Australia must end this marathon attack on freedom of the press.
Greg Barns SC is National Criminal Justice Spokesman for the Australian Lawyers Alliance
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