UK: Legal arguments during the first week of Julian Assange’s extradition hearing highlight lack of US evidence

RSF conducted an unprecedented international trial-monitoring mission to the UK for Julian Assange’s US extradition hearing from 24-27 February, as the prosecution and defence presented their legal arguments at Woolwich Crown Court in London. RSF Secretary-General Christophe Deloire and RSF Germany Director Christian Mihr joined RSF UK Bureau Director Rebecca Vincent for the hearing, and Vincent was able to systematically monitor each sitting over the four days. RSF staff from London, Paris, and Berlin also staged an action outside the adjacent Belmarsh Prison - where Assange is being held - on 23 February, and joined protests outside the court on 24 February.

District judge Vanessa Baraitser presided over the hearing. James Lewis QC acted for the US government, and barristers Edward Fitzgerald QC and Mark Summers QC argued in Assange’s defence. US government representatives were present, but did not speak during the hearing. Assange did not take the stand, and his several attempts to speak from the secure dock he was held in at the back of the courtroom were interrupted by the judge, who stated that as he was “well represented,” he must speak through his lawyers.

Assange is being pursued under a US indictment on the basis of 17 charges under the Espionage Act and one charge under the Computers Fraud and Abuse Act, related to Wikileaks’ publication in 2010 and 2011 of several hundred thousand military documents and diplomatic cables leaked by Chelsea Manning. These charges carry a combined possible sentence of up to 175 years in prison. The publication of the leaked documents resulted in extensive media reporting on matters of serious public interest including actions of the US in Guantánamo Bay, Iraq and Afghanistan.

In the course of the prosecution’s argument, it became clear that the US still has no evidence for its claim that Assange had put sources at “serious and imminent risk,” but are pursuing the charges based on the risks that he is accused of knowingly causing. At one point the prosecution said the publication of the leaked documents had led to the disappearance of some sources - but with no apparent evidence in support of this claim. The prosecution argued that Assange had damaged the US’ defence and intelligence capabilities and hurt US interests abroad.

However, the defence argued that these proceedings constitute an abuse of process as the case is being pursued for ulterior political motives and fundamentally misrepresents the facts. They outlined that Wikileaks had worked for months with a partnership of professional media organisations to redact the leaked documents. The defence explained that as redaction was in progress, one of the media partners had published a book containing the password to the unredacted dataset, which led to its access and publication by other parties. The defence outlined how Assange had attempted to mitigate any risk to sensitive sources by notifying the White House and State Department that publication outside of Wikileaks’ control was potentially forthcoming, imploring them to take action to protect the named individuals.

“We were not surprised by the prosecution’s argument, which again confirmed the lack of evidence for the charges against Mr Assange. This week’s hearing confirmed our belief that he has been targeted for his contributions to public interest reporting. We call again for the UK not to extradite Mr Assange to the US, for the charges against him to be dropped, and for him to be released as a matter of urgent priority,” said RSF Secretary-General Christophe Deloire.

In arguments around extradition, the defence argued that the Anglo-US Extradition Treaty expressly prevents extradition on the basis of political offences, presenting a bar to Assange’s extradition. They presented that these rights were protected by domestic law as they constituted a cornerstone of the constitution and were enshrined in the Magna Carta, and were further protected by international law, including the European Convention on Extradition, the Model United Nations Extradition Treaty and the Interpol Convention on Extradition.

The prosecution countered that the Extradition Act 2003 contains no provision for extradition to be barred on the basis of political offences - and that Assange’s actions could not be interpreted as political under English law. They argued that as the Extradition Treaty had not been incorporated by parliament, rights could not be derived from it, with James Lewis QC stating at one point that it might surprise other states to know that treaties meant very little when signed by the British government; parliamentary sovereignty meant the rights were only enforceable in a domestic context if ratified by parliament.

RSF observers remain concerned for Assange’s wellbeing, as he appeared very pale and tired throughout the hearing, and complained several times that he could not follow proceedings properly or communicate easily with his legal team from the glass-partitioned dock. On day two, Assange’s lawyer reported that he had been mistreated at Belmarsh prison; after the first day of the hearing, he was strip-searched twice, handcuffed 11 times, moved holding cells five times, and had his legally privileged documents confiscated on entering and exiting the prison. The judge stated it was not a matter within her jurisdiction. On day four, she rejected his application to be allowed to sit with his lawyers in the courtroom when evidence is given in May, despite the fact that the prosecution did not object to the request.

“We remain extremely concerned for Mr Assange’s treatment and wellbeing, as he was clearly not well this week and struggled to participate properly in his own hearing. The reports of mistreatment at Belmarsh prison are alarming, and we expect that to be addressed as a matter of urgent priority. We also call for Mr Assange to be allowed to sit next to his legal team in the courtroom in accordance with international standards, and not held in a glass cage like a violent criminal. He is in a vulnerable position and presents no physical threat to anyone, and his rights under the European Convention must be respected,” said RSF UK Bureau Director Rebecca Vincent.

Two short procedural hearings are scheduled in the coming weeks: a mandatory call-in on 25 March to be heard at Westminster Magistrates’ Court with Assange joining via video link; and a hearing at Woolwich Crown Court on 7 April where case management and the issue of anonymity of two witnesses will be discussed. Assange will be required to attend the latter in person. Evidence is then expected to be heard over three weeks from 18 May at Woolwich Crown Court.

The UK and US are respectively ranked 33rd and 48th out of 180 countries on RSF’s 2019 World Press Freedom Index.

Press contact: Rebecca Vincent on [email protected] or +44 (0)207 324 8903.