Assange Wins Right to Appeal on 1st Amendment Issue

JUSTICE, 27 May 2024

Joe Lauria | Consortium News – TRANSCEND Media Service

Assange supporters crowd in front of Royal Courts of Justice in London on Monday 20 May 2024.  (Joe Lauria)

The High Court in London ruled today that Julian Assange can appeal his extradition to the U.S. on the grounds that he is being denied his First Amendment rights. 

20 May 2024 – The High Court in London today granted Julian Assange the right to appeal the order to extradite him to the United States on the grounds that the U.S. did not satisfy the court that it would allow Assange a First Amendment defense in a U.S. court.

“We spent a lot of time listening to the United States putting lipstick on a pig, but the judges didn’t buy it,” Stella Assange told reporters outside the court building. “As a family we are relieved but how long can this go on? The United States should read the situation and drop the case now.”

Assange has been imprisoned in London’s notorious Belmarsh Prison for more than five years on remand pending the outcome of his extradition.  He must now spend an untold number of more months in the maximum security prison awaiting the start of his appeal.

In that sense it was a bitter victory for Assange. He gets to stay in prison another year or more, Joe Biden doesn’t have to worry about a journalist showing up in chains in Alexandria, VA during a presidential campaign and of course Assange could lose his appeal and arrive in the U.S. at a more opportune time for Biden.

In another sense, it was a victory for the supremacy of European law when it comes to free speech,

Background to Monday’s Action

The High Court in London on March 26 had ruled that Assange had three grounds to appeal, because 1). his extradition was incompatible with his free speech rights enshrined in the European Convention on Human Rights; 2.) that he might be prejudiced because of his nationality (not being given 1st Amendment protection as a non-American) and 3). because he had inadequate protection against the death penalty. (Without such protection Britain cannot extradite him.).

Rather than proceed with the appeal on those three grounds, the High Court gave the U.S. the chance, fours years after the extradition process began, to promise it would not use the death penalty, and to guarantee his free speech rights.

Because it is an executive branch decision, the U.S. was able to assure the British government that it would not seek the death penalty, and Assange’s lawyers on Monday said they did not contest that.  Left unexplained, however, was why the British home office waited four years to seek what is normally a routine assurance in an extradition case.

US Loses an Argument

Gabriel and John Shipton, Julian Assange’s brother and father, arriving to court Monday.

(Joe Lauria)

The free speech issue was more complicated because a decision about Assange asserting a First Amendment defense at trial will be up to a U.S. federal court and not the Department of Justice. Therefore the DOJ could not issue such an assurance on the free speech issue.

That ultimately led the two judges, Justice Jeremy Johnson and Victoria Sharp, to allow Assange to launch a formal appeal of his extradition because of an apparent violation of British extradition law, based on the European Convention on Human Rights, that requires the receiving country to allow an extradited person the right to free speech.

Johnson and Sharp did not buy the convoluted argument of James Lewis KC for the United States, on why the U.S. should get their hands on Assange despite being unable to guarantee his freedom of expression.

Edward Fitzgerald KC, and Mark Summers KC, barristers for Assange, easily picked apart three pieces of Lewis’ somewhat desperate presentation:

• pointing out how Lewis had misled the court by saying the U.S. assurance would allow Assange to rely on the First Amendment, when in fact it says he can “seek to rely” on it;
• how none of a slew of case law Lewis cited to supposedly bolster his argument actually dealt with a trial, which of course Assange will, if he goes to the U.S.;
• that saying Chelsea Manning was not able to invoke First Amendment rights in defense of leaking classified defense information meant Assange shouldn’t either was “nonsense” because Manning was a government whistleblower who had signed non-disclosure agreements and Assange is a publisher.

The judges apparently also rejected a drawn-out, arcane and overly lawyered argument from Lewis about the difference between citizenship and nationality that to most laymen was nearly incomprehensible.

A Watershed Moment

“This was a watershed moment in this very long battle,” said WikiLeaks Editor-in-Chief Kristinn at an event following the hearing. “Today marked the beginning of the end of the persecution.  The signaling from the courts here in London was clear to the U.S. government: We don’t believe your guarantees, we don’t believe in your assurances.”

1st Amendment & Espionage Act

The First Amendment is at the core of the unconstitutionality of the Espionage Act, which makes no exception for a journalist to possess and disseminate defense information.

The Assange case could lead to a constitutional challenge of it, said Marjorie Cohn, former president of the National Lawyers’ Guild. That may be one reason the Department of Justice does not want Assange to invoke the First Amendment in court.

The U.S.-U.K. Extradition Act “bars extradition if an individual might be prejudiced due to his nationality and due to the centrality of the First Amendment to his defense,” Cohn told CN Live! last month.  “If he’s not permitted to rely on the First Amendment because of his status as a foreign national, he’ll thereby be prejudiced, potentially very greatly prejudiced by reason of his nationality.”

Assange contends that if he’s given First Amendment rights, “the prosecution will be stopped,” Cohn said. “The First Amendment is therefore of central importance to his defense.”

Cohn added: ‘If he has the right to free expression and freedom of speech, then what he did, what he’s accused of doing, would not violate the law.”

See: 1st Amendment Authorized Assange’s Possession of Classified Data

Though allowing First Amendment rights at trial would be ultimately a judge’s decision, and not the executive branch’s, Assistant U.S. Attorney Gordon Kromberg, who is prosecuting Assange, has not only not indicated that he wouldn’t file a motion against it in court, but has said explicitly that non-U.S. citizens do not have First Amendment rights in the U.S. for acts committed abroad.

A date has not yet been set for Assange’s appeal to begin.

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Joe Lauria is editor-in-chief of Consortium News and a former correspondent for The Wall Street Journal, Boston Globe and numerous other newspapers, including The Montreal Gazette and The Star of Johannesburg. He was an investigative reporter for the Sunday Times of London, a financial reporter for Bloomberg News and began his professional work as a 19-year old stringer for The New York Times. Email: joelauria@consortiumnews.com

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