Assignment Assange

Q & A about Julian Assange with Greg Barns SC, adviser to the Australian Assange Campaign ... Charges ... Journalism ... Espionage Act ... First Amendment ... Extradition decision and the prospects of appeal ... Flight risk ... More from Wikileaks 

10 years of Julian Assange

What are the US charges facing Julian Assange?

Julian Assange is the first journalist and publisher to be prosecuted under the US Espionage Act 1917. The current 18 charge Indictment alleges Assange helped Chelsea Manning, a former US military intelligence analyst, crack a password on Defence Department IT. They also allege Assange obtained and disclosed "national defense information". 

What is the information released by WikiLeaks that relates to those charges?

The information included thousands of military documents concerning  the Iraq and Afghanistan wars, Guantanamo Bay detainee assessments and State Department cables. This information included what is known as the Collateral Murder video which is footage from a US Apache helicopter. It shows the killing in 2007 in a Baghdad suburb by the US military of over 11 people, including a Reuters' journalist and a cameraman, along with civilians. Two children were also seriously harmed. Interestingly, the "Collateral Murder" video is not mentioned in the summary of charges against Assange. The Iraq and Afghanistan war military documentation revealed US war crimes in those theatres of war.

Is Assange a journalist, a whistle blower, or a combatant in information warfare?      

Assange is a journalist and publisher. In 2019 the Walkley Foundation issued a statement referring to its 2011 Walkley Award to "Wikileaks, with Julian Assange as its editor," for "its outstanding contribution to journalism". Walkley judges said Wikileaks applied new technology to "penetrate the inner workings of government to reveal an avalanche of inconvenient truths in a global publishing coup". One of those many inconvenient truths" was the Collateral Murder video.

Do the charges suggest that journalists in the mainstream and legacy media should be concerned?

Yes. As the MEAA Media section Federal President Karen Percy said on June 17 this year:

"The actions of the US are a warning sign to journalists and whistleblowers everywhere and undermine the importance of uncovering wrongdoing."

Floyd Abrams, an American media lawyer told the Washington Post on May 23, 2019 that  the Assange case "does raise deeply threatening First Amendment issues for journalists who cover national defense, intelligence activities, and alike". Furthermore, the US is seeking to use a domestic law to prosecute a person who is not a US citizen, did not publish in the US and who has not set foot on US soil. This is dangerous extra-territorial reach that should concern all Australian journalists.

What are the prospects of a successful appeal against the UK Home Secretary's decision to send Assange to the US for trial?

One of the arguments that is potent in the Assange case is that the extradition breaches the political offence carve out of the US-UK Extradition Treaty. The Treaty forbids extradition in the cases of "political offences". The charges Assange faces are clearly political, because he embarrassed US administrations by revealing war crimes committed in Afghanistan and Iraq. Further the laying of disclosure charges by the Trump Administration was done as part of its attack on media critics. In addition section 81 of the UK Extradition Act 2003, bars extradition if it appears that ... 

(a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or

(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions. 

There is also a passage of time argument – s.82 of the UK Extradition Act bars extradition of it "it appears that it would be unjust or oppressive to extradite him by reason of the passage of time".

Finally Assange's declining mental and physical health are relevant factors. Section 91 of the UK Extradition Act bars extradition if "the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him". 

Barns: journalists beware

Does the First Amendment protect breaches of the Espionage Act?

Yes. This is why the publisher of The New York Times, which published the WikiLeaks material, has not been prosecuted. As Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University said in his evidence to the Assange extradition hearing in 2020-2021, while "American courts have not fully resolved the scope of the protection that the First Amendment provides to those who publish classified information without government authorization," the US Supreme Court has read its decision in the 1971 Pentagon Papers case broadly as having "upheld the right of the press to publish information of great public concern obtained from documents stolen by a third party". 

Why did Assange breach his bail conditions in England and go to the Ecuador Embassy?

Assange believed that if he were to be extradited to Sweden, where a prosecutor sought to question him in relation to a rape investigation, he would be quickly extradited to the United States. He sought and was granted asylum by the Ecuadorean government in 2012. Assange denied the allegations made by the Swedish prosecutor and in 2019 Sweden's Deputy DPP said the investigation would end because: 

"The evidence is not strong enough to form the basis of an indictment. In such a situation, the preliminary investigation should be discontinued, and that is what has happened."

Do you know who lost their bail surety and how much was at stake?

Nine individuals forfeited part of their surety - £93,500 out of £140,000. This included late former Australian journalist Phillip Knightley who forfeited £15,000 pounds but made it clear, as did others, he still supported Assange.

Is he now in HM's Belmarsh Prison because he is a flight risk pending the appeals concerning extradition?

Assange is perceived to be a flight risk only because of his 2012 bail breach to seek asylum.

Assange was stalled at the embassy for seven years. Would it have been better/wiser to go to Sweden with the prospect of successfully defending the alleged sex offences? 

There were never any offences. There was an investigation. Assange was prepared to be questioned, and in fact subsequently was by Swedish prosecutors, in 2016. He had previously spoken to police in Sweden in 2010 before the arrest warrant was issued. Assange was advised by his lawyers the threat of extradition to the United States from Sweden was a real threat.

Is it likely that Australia would negotiate an arrangement, as happened in David Hicks' case, where he does a small amount of prison time, both in the US and Australia, before being released?

Australia needs to ensure the case ends. To allow Assange, with poor mental and physical health, to enter the US jail system would be to put his life at risk. 

Was Assange a pawn of the Russians in publishing hacked information that damaged Hillary Clinton's presidential campaign in 2016?

No. It is also worth noting the extradition relates to the 2010 and 2011 publications, not 2016.

WikiLeaks doesn't seem to have published new revelations for some time. Can it continue effectively without Julian Assange?

WikiLeaks continues to operate and on August 5 last year published a trove of documents from Spanish and US based far-right organisations.