There is a parallel between the cases of the Nadesalingam family and Julian Assange: they both demonstrate a truth about the limits of justice.
Assange remains in Belmarsh Prison, where he has been for more than three years now. With the decision of the British Home Secretary, Priti Patel, to order his extradition to the United States, it is inevitable that he will continue to occupy a cell for many years yet.
Assange’s lawyers have indicated they will appeal this latest setback; that will roll through the English courts and most likely the European Court of Human Rights. If they fail, Assange faces, finally, the extradition the US has been seeking since 2010, and a trial on espionage charges. If convicted, he could get life.
The legal issues circling Assange’s situation are complicated and controversial: was WikiLeaks’ release of nearly half a million classified US military documents an act of journalism or espionage? Was Assange’s decision to take asylum in Ecuador’s London embassy for seven years the act of a freedom fighter or a man avoiding rape charges in Sweden (which eventually lapsed without ever being tested)? Is the US justice system capable of offering genuine justice or has it been hopelessly politicised as a weapon of vengeance for an administration embarrassed by the leaks?
The current formal status of things is that the courts have ruled it would not be “oppressive, unjust or an abuse of process” to extradite Assange, and Patel has declined to exercise political discretion in his favour. He can appeal her decision, and will probably fail again in the UK courts although there is a chance that the European court may see things differently.
The political pressure is now mainly on the new Australian government. Prime Minister Anthony Albanese said in December 2021 that he did “not see what purpose is served by the ongoing pursuit of Mr Assange” and that “enough is enough”. He is being pushed to intervene assertively in London and Washington, to advocate the human rights of Assange as an Australian citizen.
Albanese has not directly commented, but a senior minister, Tony Burke, was sent out to say this: “We’re not going to conduct diplomacy by megaphone. This case has gone on for far too long. We said that in opposition, we’ve repeated that in government. The issue needs to be brought to a close.”
Translation: the Labor government isn’t going to spend diplomatic capital on Assange, but will have a quiet crack at the Americans and is setting up to take the credit if the Biden administration relents.
That’s the politics, expedient as ever, but the rhetoric points to a truth: there comes a point at which enough is indeed enough.
Step back from the questions of legal principle and process in the Assange case, and what emerges is what Shakespeare would have called a lot of sound and fury, signifying nothing. We are now a decade-plus and three presidents removed from the subject matter of the WikiLeaks files. While there might once have been a genuine debate about whether what Assange did was journalism, that ship has long sailed away with the last traces of traditional media dominance of public discourse. Chelsea Manning, the main source of the classified leaks, is free, remitted by President Obama. The world has moved on.
We are well past the point where it must be asked what is the utility of continuing to go after Assange? What would his prosecution achieve? If he is guilty of anything, he has already done 10 years in largely solitary confinement; the fact that that has been mainly because of his own choices doesn’t change it.
I claim a parallel with the Nadesalingams because I see the same problem there: what happens when legal process is stretched past the point of exhaustion. That family never committed a crime, but their liberty was withheld for more than four years. The Coalition government always maintained (and, in opposition, still does) that they were in Australia illegally, their asylum claims having been denied, and that our tough migration laws dictated their deportation back to Sri Lanka with their Australian-born children.
The political truth is that the family were hostages, but the government did have the law on its side (because the law had been designed that way). If the Albanese government had chosen to carry on down the same path, more litigation would have ensued. Ultimately, the family’s legal odds were similar to Assange’s: slim.
The new government ended the family’s torture, as it should, for the simple reason that enough was enough. That is not a legal maxim, but the law does recognise that there are limits to its own social utility. It’s why, for example, criminal defendants are sometimes excused from retrial after a successful appeal even though their alleged guilt has never been properly tested.
So it should be with Assange. Nothing useful has been achieved in his case for a long time; nothing will be now. He has suffered enough, if he ever deserved punishment. No society will benefit from pursuing him more.
There’s a handy rule of thumb for when it’s time to stop: when barely anyone can remember, and nobody really cares, what the argument was about in the first place.
