WikiLeaks founder Julian Assange cannot be extradited to the US to face charges of hacking and espionage, a court ruled today.
Judge Vanessa Baraitser said this morning that it would be “oppressive” to send Assange for trial in the US, where he would be at high risk of suicide.
Assange has the “intelligence and the determination” to circumvent the suicide prevention programmes in US prisons, the judge said.
The US, which claims that WikiLeaks has endangered lives, said after the hearing that it would appeal the decision.
The case represents the first time that the US Espionage Act, originally enacted to prosecute spies during the First World War, has been used to bring charges against an individual for receiving and publishing classified information.
But Baraitser said that arguments by Assange’s defence team that the case had been brought by the Trump administration for political purposes, were not a legal bar to his extradition.
She said Parliament had taken the decision to remove the political exception from the 2003 Extradition Act.
Speaking after the verdict, Assange’s partner Stella Moris said: “Today is a victory for Julian. Today’s victory is the first step towards justice in this case. We are pleased the court has recognised the inhumanity of what he has endured and what he faces.
“But let’s not forget that the indictment in the US has not been dropped. We are extremely concerned that the US government has decided to appeal this decision. It continues to want to punish Julian and make him disappear into the deepest, darkest hole of the US prison system.”
Chelsea Manning documents ‘revealed war crimes’
The US charges centre on hundreds of thousands of documents leaked to WikiLeaks by former US Army intelligence analyst Chelsea Manning in 2010 and 2011.
The court heard evidence over the summer that the Chelsea Manning documents published by WikiLeaks revealed evidence of war crimes, torture and civilian deaths during the Iran and Iraq wars, and the role of the US in rendering terrorist suspects to black sites for torture and interrogation of detainees.
They included the rules of engagement for the Iraq war and the “collateral murder” video which showed US soldiers laughing as they fired on unarmed civilians in Iraq.
Daniel Ellsberg, the US government whistleblower responsible for leaking the Pentagon Papers that changed the course of the Vietnam war, said in evidence that the revelations were among the most important disclosures of criminal state behaviour in US history.
Speaking during a 45-minute hearing, Baraitser said that Assange’s activities went beyond the normal activities of journalists, however.
Assange offered to use technical tools, known as “rainbow tools”, to help Manning crack a password.
If successful, this might have made it more difficult for investigators to identify her as the source of the disclosures to WikiLeaks.
In March 2010, after Assange told Manning that “curious eyes never run dry” on an internet chat forum, Manning downloaded hundreds more documents.
The US alleged that Assange had encouraged others to hack into computers to obtain documents from government computer systems, and that Manning was aware of that, the judge said.
For example, Assange spoke at hacking conferences, including the Chaos Computer Club in 2013, where he told the audience to join the CIA to steal information, Baraitser said in a 132-page judgment.
These activities “took him outside any role of investigative journalism”, she told the court.
Assange went beyond confines of responsible journalism
The judge rejected the defence team’s arguments that the WikiLeaks founder was operating within the confines of responsible journalism.
By making this argument, she said, “it invests in Mr Assange the right to sacrifice the safety of individuals in the name of free speech”.
WikiLeaks put informants who had given assistance to US forces in Iraq and Afghanistan at risk after releasing 250,000 unredacted documents, the judge said.
This was in contrast with WikiLeaks media partners, including The Guardian, The New York Times, El Pais, Der Spiegel and Le Monde, that issued a statement condemning the move.
“We deplore the decision of WikiLeaks to publish the unredacted State Department cables which may put sources at risk,” the organisations said. “Our previous dealings with WikiLeaks were with a clear basis that we would only publish cables which had been subjected to a thorough joint edited and clearance process.”
The US said that over 100 people were put at risk by the disclosures and about 50 had received assistance from the US. Others had fled their home countries with their families to move to a safe country.
Assange would be protected by US constitution
Baraitser rejected claims that the US Espionage Act is so vaguely worded that it would not meet the standards of enforceability and foreseeability required under UK law.
But the judge said Assange would be protected by the fifth amendment of the US constitution, which prevents people being deprived of their liberty without being able to offer proper defence.
She said there was no evidence that Assange would fall outside the protection of the US constitution because he is not a US citizen.
“Assange would be on US soil facing a US trial in a US court,” she said. “No authority has been provided that he would not have the protection of the US constitution.”
The judge said, however, that she accepted evidence from doctors that Assange has recurring depression, is on the autism spectrum and has Asperger’s.
During detention at Belmarsh prison, Assange had told medical staff that he had suicidal thoughts and had made frequent requests to call the Samaritans.
The prisons’s healthcare wing had prescribed him antidepressants and anti-psychotic medicine.
Assange had also made preparations for his death, including making a will and requesting absolution from a Catholic priest. In May, a razor blade was found in his cell.
“The overall impression is of a depressed and despairing man concerned about his future,” said the judge.
Special administrative measures
Baraitser said the US intelligence service views Assange as an ongoing threat.
Assange continued to publish confidential documents belonging to the CIA while seeking asylum at the Ecuadorian Embassy, she said – a reference to the Vault 7 leaks which exposed the CIA’s hacking capabilities.
And Mike Pompeo, director of the CIA, denounced WikiLeaks as a “not-state hostile intelligence agency”.
As a result, Baraitser found there was a real risk that Assange would be subject to “special administrative measures” – equivalent to solitary confinement – in the US.
There was also a real risk that Assange would be held at ADX Florence in Colorado – a supermax prison.
Assange would be held in isolation, contact with his family would be curtailed, and he would exercise in isolation in a small room without contact with other prisoners.
This was recognised by all the experts who gave evidence during the trial as detrimental to Assange’s health.
The judge said Assange had already adopted a strategy of hiding his suicidal thoughts from prison pscyhologists at Belmarsh prison, where he is on remand.
Assange has the intelligence and the determination to circumvent the suicide watch measures used in US prisons, she said.
Baraister said that facing conditions of near total isolation and without the protection of suicide watch, she was satisfied that procedures in the US would not prevent him committing suicide.
Assange faces 17 charges under the 1917 Espionage Act, for receiving and publishing hundreds of thousands of classified government documents leaked by former US Army intelligence analyst Chelsea Manning in 2010.
He has also been charged with one count under the Computer Fraud and Abuse Act, along with multiple allegations that he conspired with hacking groups to encourage them to obtain classified US documents.
Other defence claims rejected
The judge rejected arguments that Assange would have difficulty mounting a defence to allegations dating back to 2010 due to the passage of time, as they were filed as late as 2017.
“If the defence encounters genuine difficulties in testing or challenging this, it is reasonable to assume that the US has a procedure which enables evidence to be excluded within the trial process,” she said.
The potential impact on Assange’s two young children if he were extradited was “sadly nothing out of the ordinary in the context of extradition proceedings”, she said.
The judge also rejected Assange’s claims that he would not be able to have a fair trial because the jury pool in Virginia – where he would be tried – was likely to be made up of individuals from the defence industry or the intelligence services.
There was no credible evidence, she said, that the US wanted to punish Assange as harshly as possible through the use of a coercive plea bargain, which would deprive Assange of his rights under article 7 of the Human Rights Act.
Amnesty International said that despite Assange’s reprieve, the charges brought against him were politically motivated and should never have been brought.
Nils Muižnieks, Amnesty International’s Europe director, said: “The fact that the ruling is correct and saves Assange from extradition does not absolve the UK from having engaged in this politically motivated process at the behest of the US and putting media freedom and freedom of expression on trial.
“It has set a terrible precedent, for which the US is responsible and the UK government is complicit.”
Michelle Stanistreet, general secretary of the National Union of Jouranalists, said Baraitser’s judgment contained “much that is troubling”.
“The judge rejected the defence case that the charges against Assange related to actions identical to those undertaken daily by most investigative journalists,” she said. In doing so, she leaves the door open for a future US administration to confect a similar indictment against a journalist.”
The Committee to Protect Journalists urged the US government to drop the charges against Assange.
Robert Mahoney, deputy executive director said, “The U.S. government’s decision to charge the WikiLeaks founder set a harmful legal precedent for the prosecution of journalists around the world simply for interacting with their sources.”
Speaking outside of court Kristinn Hrafnsson, editor-in-chief of WikiLeaks said that todays hearing was a win for Julian Assange, but not necessarily a win for journalism.
“I am concerned that instantly upon giving her decision, the lawyers for the US government indicated they would appeal the decision. They should not,” he said. “There should be a call-out and pressure on the US side to drop the appeal.”
The UK courts have refused to extradite other people with mental health conditions to the US to face hacking charges in two earlier cases.
The then home secretary, Theresa May, cited mental health grounds in 2002 to block the extradition of Gary McKinnon to the US in 212 to face charges of hacking NASA and US military computers, arguing that extradition was incompatible with his human rights.
And in February 2012 the appeal court found in the case of Lauri Love, that it would be oppressive on the grounds of his mental and physical health to extradite him to the US to face charges of hacking into US government computer systems.
Assange’s defence barrister is due to apply for his release on bail on Wednesday.