This week’s decision not to extradite WikiLeaks founder, Julian Assange, to the USA to stand trial for charges of espionage came as welcome relief to Assange’s family and supporters. However, he remains detained at London’s high-security Belmarsh prison after the judge refused bail citing concerns he would abscond.
Before we consider the ruling against extradition as a victory for free speech it’s worth exploring the details of District Judge Vanessa Baraitser’s ruling which risk creating a chilling effect on public interest journalism.
Judge Baraitser’s ruling at no stage allowed for the protections governed by Article 10 of the UK Human Rights Act to halt the extradition. Instead, in denying the US Government’s request to extradite Assange, Baraitser concluded that “the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America”.
In doing so, the judge accepted the testimony of medical experts who said that Assange represented a potential suicide risk if he were to be incarcerated in the USA; Jeffrey Epstein’s suicide and Chelsea Manning’s attempted suicide are both mentioned in the ruling.
The risk was exacerbated because Assange would likely face so-called special administrative measures which would limit his communication with the outside world and visiting rights.
Baraitser’s decisions regarding the key legal arguments of Assange’s defence are cause for concern and risk creating a precedent which would prevent journalists from publishing sensitive information in the public interest and the ruling appears to have extended the scope of Britain’s Official Secrets Act.
As part of the extradition request, the court had to be satisfied, to the criminal standard, that Assange’s conduct would constitute an offence under the law of England and Wales.
Baraitser said in the judgment: “I have found that Mr. Assange’s conduct is capable of amounting to an offence in England and Wales. It follows that I do not accept that the mere fact charges are brought in the US demonstrates that they are brought in bad faith.”
This argument appears to be based on the premise that Assange’s actions would have fallen foul of section 5 of the UK’s Official Secrets Act (OSA) 1989 which applies to individuals, including publishers, who are not the original leaker of the information. This criminalises “those who disclose protected materials which are damaging and which they have disclosed knowing, or having reasonable cause to believe, would be damaging”.
The US government’s argument is similar and maintains that under US law a free speech defence does not necessarily cover classified information even if it is in the public interest and they said Assange had disclosed materials “that no responsible journalist or publisher would have disclosed” when WikiLeaks published its full archive of 251,000 secret US diplomatic cables without redacting the names of sources.
It is this assertion that has led the US government to charge Assange under the 1917 Espionage Act, which is primarily designed for spies, rather than journalists or publishers.
Before the verdict, Assange’s partner Stella Moris told Index: “They say Julian published information that was secret and therefore he can be prosecuted over it. They never used [this act] to prosecute someone publishing information for the public.”
The defence argued that Assange was “doing no more than engaging in the ordinary and lawful conduct of the investigative journalist”, which is protected by Article 10.
However, Baraitser stated that the Article 10 right to freedom of expression “is not absolute”.
She added: “In my judgment, notwithstanding the vital importance in guaranteeing freedom of the press, the provisions of the OSA 1989, where they are used to prosecute the disclosure of the names of informants, are necessary in a democratic society in the interests of national security.”
She also contested Assange’s assertion that he was acting as a responsible journalist.
“The difficulty with this argument is that it vests in Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection.
“Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where ‘dumps’ of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of ‘responsible journalism’ can sensibly be applied.”
If the judge does allow the US appeal in the next two weeks and Assange is extradited, he will not have recourse to protection under the First Amendment laws which protect freedom of speech. Incumbent Secretary of State Mike Pompeo has previously argued that First Amendment privileges should not be afforded to Assange and WikiLeaks.
Pompeo’s comments were deemed by many to be politically motivated in order to deter the likes of the WikiLeaks founder from repeating similar actions. Being the first administration to use the Espionage Act in such a way seemed to support this.
But Baraitser once again rejected the defence’s argument, deciding that: “The defence points to comments made by Attorney General Sessions a week after Mr. Pompeo’s speech in April 2017 that “[journalists] cannot place lives at risk with impunity,” that prosecuting Assange was a “priority” for the new administration, and that if ‘a case can be made, we will seek to put some people in jail’. However, as the US points out, these comments appear to be no more than statements of what is perhaps obvious, and conditional on whether criminal liability can be established. There is nothing sinister in bringing a prosecution ‘if a case can be made’.”
Again, the Espionage Act is a factor here as it does not contain a public interest defence. Therefore, charging journalists under this Act is considered by many as one-sided and unfair as it removes the protections free speech laws afford.
Index’s position is clear. Governments, authoritarian or not, in order to protect our collective human rights and to enable power to be held accountable, must be open to scrutiny and are a fair target for investigative journalists, even if the definition of what constitutes an investigative journalist is no longer as clear as it once was.
The issue at hand is not about Assange the person, but rather the very principle of a free and fair press which operates in the public interest. That is the principle at stake in this judgment.
Other press freedom organisations, such as the International Federation of Journalists, Reporters Without Borders and the Centre for Investigative Journalism, have also expressed their disquiet with the ruling.
We recognise that there are certainly questions about the manner in which Assange published the information without redacting the names of journalists and activists, a move which was condemned by a number of newspapers which worked with WikiLeaks to reveal the contents of the diplomatic cables.
However, the fact remains that much of the information published about the actions of certain governments was clearly in the public interest.
If the US government can decide on a case-by-case basis who is a spy and who is a journalist then this makes the job of the latter that much more challenging. The fear that investigative journalists may be extradited will mean stories that need to be brought to light will remain in the darkest of shadows.