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Following a two-day hearing in February, two U.K. High Court judges requested that the U.S. government provide diplomatic assurances regarding the potential extradition of WikiLeaks founder Julian Assange. On April 16th, the deadline for the submission of such assurances, the U.S. government appears to have issued a diplomatic note on the matter. Those assurances concerned whether “Mr Assange is permitted to rely on the First Amendment, that he is not prejudiced at trial (including sentence) by reason of his nationality, that he is afforded the same First Amendment protections as a United States citizen and that the death penalty is not imposed.”
Just after 16:00 BST on Tuesday, New York Times’ London correspondent Megan Specia tweeted three images showing the pages of a diplomatic note – designated “No. 610” – sent from the U.S. Embassy in London to the U.K. Secretary of State for Foreign, Commonwealth and Development Affairs, who is currently Rt. Hon. Lord David Cameron, the former prime minister. Mrs. Stella Assange publicly confirmed the authenticity of the image contents in a quote-tweet. The images contain the following main text:
“The Embassy of the United States of America at London, England, presents its compliments to His Majesty's Principal Secretary of State for Foreign, Commonwealth and Development Affairs and refers to Diplomatic Note No. 032, dated 6 June 2019, which formally requested the extradition of Julian Paul ASSANGE, as supplemented by Diplomatic Notes 034, dated 25 July 2020; 074, dated 8 February 2021; and 169, dated 19 October 2021.
In furtherance of that request, and based on the unique facts and circumstances of this particular matter, the Government of the United States of America provides the Government of the United Kingdom of Great Britain and Northern Ireland the following assurances.
Should ASSANGE be extradited from the United Kingdom to the United States:
1. ASSANGE will not be prejudiced by reason of his nationality with respect to which defenses he may seek to raise at trial and at sentencing. Specifically, if extradited, ASSANGE will have the ability to raise and seek to rely upon at trial (which includes any sentencing hearing) the rights and protections given under the First Amendment of the Constitution of the United States. A decision as to the applicability of the First Amendment is exclusively within the purview of the U.S. Courts.
2. A sentence of death will neither be sought nor imposed on ASSANGE. The United States is able to provide such assurance as ASSANGE is not charged with a death-penalty eligible offense, and the United States assures that he will not be tried for a death-penalty eligible offense.
These assurances are binding on any and all present or subsequent individuals to whom authority has been delegated to decide the maters.
The Embassy avails itself of the opportunity to express to His Majesty's Principal Secretary of State for Foreign, Commonwealth and Developmental Affairs the renewed assurance of its highest consideration.
Embassy of the United States of America
London, England. April 16, 2024”
At time of writing, it is unclear how Specia obtained a copy of the diplomatic note, as it has not been published via press release by the U.S. Embassy, the State Department, the U.K. government or court directly. Previous assurances entered into the U.K. proceedings – likely delivered through one of the diplomatic notes cited in this one – have been referenced in court filings by both the defense and prosecution, but not made public in their original form in such a manner. We are not aware of any officials from either government disputing the authenticity of the image contents; however the absence of an official release once again hinders the public’s knowledge and understanding of the case. We have requested copies of these diplomatic notes from the U.S. State Department and have not yet received a response beyond acknowledging our request.
“In the event that assurances are filed by 16 April 2024, the parties have permission to file further written submissions on the issue of leave to appeal, in the light of the assurances, such submissions to be filed by the applicant by 30 April 2024, and by the respondent and the Secretary of State by 14 May 2024… In the event that assurances are filed by 16 April 2024, we will consider the question of leave to appeal at a hearing on 20 May 2024,” reads the High Court judgment.
Even more so than the assurances regarding prison conditions that were offered (according to references in court filings) during 2021, these assurances contain legal loopholes that may be missed by more trusting and untrained eyes, especially non-legal and non-native English readers. The first portion of the diplomatic note provides an assurance says that Mr. Assange “may seek to raise” a First Amendment defense at trial. More precisely, they say that he will be allowed to attempt to argue that he can rely on the First Amendment as part of his defense. Of course, a defendant may attempt to argue anything he or she likes; in no way does this assure that he will be allowed to rely on it in practice. The paragraph itself confirms this: “A decision as to the applicability of the First Amendment is exclusively within the purview of the U.S. Courts.” The judge of the Espionage Court in which he is to be tried if extradited, could simply reject that a First Amendment challenge is applicable to his case.
“An assurance that Assange can ‘raise’ the First Amendment is completely meaningless. Anyone can 'raise' anything in court,” confirmed the Freedom of the Press Foundation. Therefore the question raised by the U.K. judges about whether he will be discriminated against based on nationality was simply not answered here.
An analogy: Imagine you are planning a vacation, and you really want to stay at a hotel where breakfast is included. One hotel advertises that “breakfast is included” in the price of the room. Another hotel advertises that “you are allowed to ask the hotel staff if you can be served breakfast.” The first advertisement means that you should expect to be served breakfast at the hotel, with no additional charge. The breakfast may not be satisfying in the end, but there will be breakfast. The second advertisement means that you will not get in trouble for going up to the front desk and asking the receptionist if breakfast will be served to you. They do not make any promise that there will be any breakfast, even if you are willing to pay extra for it. Maybe the staff simply don’t want to serve you in particular; they prefer to only serve breakfast to local people. Whatever the reason is, they aren’t required to serve you breakfast and there is nothing you can do about it.
The “assurances” are the hotel advertisements, the “breakfast” is the First Amendment defense, and the hotel receptionist is the Espionage Court.
It has been the opinion of U.S. federal prosecutor Gordon Kromberg since the beginning, that “concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protections under the First Amendment, at least as it concerns national defense information, and even were they so entitled, that Assange’s conduct is unprotected because of his complicity in illegal acts and in publishing the names of innocent sources to their grave and imminent risk of harm." During the second day of the February hearing, Clair Dobbin KC, one of the lawyers representing the U.S. prosecution, initially seemed to contradict this, insisting that "freedom of speech is obviously highly prized in the United States of America,” but relented upon further questioning from judges. The ‘unless’ clause has clearly been declared already.
“In effect, this is a non-assurance. It’s no assurance at all,” said defence lawyer Jennifer Robinson in an interview with ABC Listen (Australian Broadcasting Corporation). She said that she had been able to speak with Mr. Assange while they were waiting to see whether the U.S. would issue assurances or not. “This case is incredibly stressful. The amount of pressure that he is under… the roller-coaster that he and his family are on, having had President Biden say last week he’s ‘considering’ dropping the case, having this week now getting assurances from the U.S. government saying, ‘Actually, no, we are [still] going to pursue this extradition.’” She advocated that her client should be allowed to return to Australia.
The second assurance, that “a sentence of death will neither be sought nor imposed” if Mr. Assange is convicted, is perhaps more linguistically sound than the first, but “does nothing to relieve our family's extreme distress about his future,” countered Stella Assange in a statement following the publication of the diplomatic note. “The takeaway is: Julian will be killed in prison slowly. That is, the electric chair and the lethal injection are not the method,” she said when reached for further comment.
Reporters Without Borders (RSF) human rights campaigner Rebecca Vincent described the U.S. assurances as “unenforceable niceties between states.” In April 2023, Vincent and RSF Secretary-General Christophe Deloire were “deeply disappointed” upon being repeatedly prevented – on at least four occasions – from visiting Mr. Assange in Belmarsh, “despite having been vetted in advance and receiving confirmation” from the prison. Last month, Vincent reported that she has been allowed to visit him five times since August. “We remain concerned about his physical & mental health,” she shared.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, warned that “no one who cares about press freedom should take any comfort at all from the United States’ assurance… This case poses essentially the same threat to press freedom today as it did yesterday.” Jaffer gave testimony during the 2020 trial, in which he assessed that “the indictment's implicit but unmistakeable claim is that activities integral to national security journalism are unprotected by the U.S. Constitution and even criminal.”
“While the US has allegedly assured the UK that it will not violate Assange’s rights, we know from past cases that such ‘guarantees’ are deeply flawed — and the diplomatic assurances so far in the Assange case are riddled with loopholes,” commented Amnesty International legal advisor Simon Crowther in a press statement last month.
Judge Vanessa Baraitser’s ruling from January 2021, rejecting the extradition request, considered evidence regarding the surveillance operations at the Ecuadorian Embassy, in which the Spanish company Undercover Global S.L. (“UC Global”) cooperated with Ecuadorian and U.S. intelligence authorities “to supply them with sensitive information about Mr. Assange” since roughly 2017, according to at least two protected witnesses. Director and owner David Morales had “indicated that the purpose of installing the microphones, as per the request of the United States, was.. to record the meetings that Assange has with his visitors, but especially those of his defence attorneys and, very specifically, the coordinator of his legal defence Baltasar Garzon,” testified the witness who claims to have been responsible for installing some of the equipment at the embassy. Since 2019, Morales and UC Global have been under investigation by Spain’s High Court after lawyers for Mr. Assange filed a criminal complaint. Judge José de la Mata was surprised when British authorities denied his European Investigation Order (EIO) “requesting permission to question Assange by videoconference as a witness.” In November 2021, it was further reported that “the Justice Department has failed to respond to multiple requests from Spanish authorities for help in [the] investigation.” According to the Spanish-language newspaper El País, this “is being viewed by Spanish judicial bodies as a show of resistance against the consequences that the case could have on the process to extradite” Mr. Assange to the United States.
In August 2022, a group of American lawyers and journalists whose privacy was violated by the surveillance operations also filed a complaint in New York against Morales, UC Global, the CIA and its former director Mike Pompeo. The lead plaintiff is civil rights attorney Margaret Ratner Kunstler. In December 2023, presiding Judge John G. Koeltl issued a memorandum opinion and order in favour of allowing them to sue the CIA for “violation of their constitutional rights” with regard to “the seizure of the contents of the plaintiffs’ electronic devices.”
On April 15th, the day before the deadline for the assurances in the U.K. extradition proceedings, current CIA director William J. Burns filed a declaration to this U.S. court, “formally assert[ing] the state secrets privilege” to “protect intelligence sources, methods, and activities at issue in this litigation,” in order to prevent “serious - and in some cases, exceptionally grave - damage to the national security of the United States.” Burns also asks that “should the Court require additional information concerning my claims of privilege, I respectfully request an opportunity to provide such additional information prior to the entry of any ruling regarding those claims.” In essence, he is asking for special favours: early-access to the judge’s decision and an opportunity to counter the ruling prior to it being filed, if the judge were about to rule against him. Interestingly, the declaration was signed nearly three weeks prior on March 27th, only one day after the U.K. High Court had issued their judgment and requested the assurances. At time of writing, the plaintiffs “request an extension to May 24, 2024 to file an opposition to the CIA’s motion to dismiss.”
While these three separate court cases, in different jurisdictions, it is clear that they must be evaluated in the context of each other. The plaintiffs in Kunstler v. Central Intelligence Agency are all U.S. citizens. If U.S. citizens, especially a prominent award-winning journalist and a lawyer professionally duty-bound to protect attorney-client privilege, are unable to stop violations of their constitutional rights, then what hope is there for Mr. Assange as an award-winning foreign journalist?
“The US would be aware that privileged communications and the fruits of any surveillance would not be seen by prosecutors assigned to the case and would be inadmissible at Mr. Assange’s trial as a matter of US law,” Baraitser had concluded in her 2021 ruling. “Mr. Assange [can] apply to exclude any evidence at his trial which is based on privileged material.” However, if the CIA or another U.S. intelligence agency were to similarly invoke state secrets privilege during Assange’s trial, which is highly likely in an Espionage Court case, then Assange’s defense would be further handicapped in their ability to ascertain what privileged material has been collected and then motion to have it excluded. The legal analysis by Baraitser and the other judges does not even consider the potential risk of parallel construction, where a “government launders the original source of evidence in criminal cases” that may otherwise be challenged or even dismissed on the basis of due-process violations. Two senior U.S. Drug Enforcement Agency (DEA) officials, interviewed by Reuters in 2013, claimed that “parallel construction is a law enforcement technique we use every day.” A shocking “dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers.” If a state is willing to engage in operations that violate constitutional rights, then it is certainly reasonable to consider whether they will engage in such an evidence laundering process, especially given the volume and sensitivity of the data that was allegedly surreptitiously collected over a multi-year period in Mr. Assange’s case.
Whether the U.K. courts consider the assurances offered by the U.S. government “satisfactory” remains an open question; we do not expect to learn the answer until the hearing on May 20th. Mr. Assange would be permitted to appeal on any of the three grounds that the assurances do not sufficiently address.
“The United States Government’s assurance that Julian Assange would have all the protections of a US citizen in a US court is obviously a fantasy,” said Australian Parliament member Andrew Wilkie in a public statement issued on Wednesday. “Indeed these assurances are basically political promises and there is no way of enforcing them in a court of law.”
“If the US can’t guarantee that Mr Assange will unequivocally be able to rely on the free speech protection under the First Amendment, then the United Kingdom High Court of Justice must allow Mr Assange to appeal his extradition. Even better, the US can come to a diplomatic solution and drop the prosecution of Mr Assange to allow him to return to Australia.”
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