The UK high court’s decision to grant leave to WikiLeaks founder Julian Assange to appeal an extradition request to the US in respect of publications of classified information in 2010 is an important win for a number of reasons.
Dame Victoria Sharp and Justice Jeremy Johnson gave leave to appeal after hearing arguments from Assange’s counsel that there is no guarantee Assange – because he is not a US citizen – would be able to avail himself of press protections under the first amendment of the US constitution. The US has simply said it promises Assange could raise it but would not guarantee US prosecutors would support Assange’s claim. This decision is a win for journalism and publishing, shifts the momentum in Assange’s favour and provides the ideal opportunity for Anthony Albanese to push Joe Biden to end this pursuit of a man who revealed to the world, among other things, war crimes committed by the US in Iraq.
In a March hearing the court invited the US to provide assurances about three matters. One related to the death penalty, which the US has taken off the table. But its two other “assurances”, both of which concerned the first amendment issue, contained in a diplomatic note issued by the US in April, obviously raise serious questions about Assange’s ability to get a fair trial in the Eastern Virginia court where his case would be heard. As Assange’s counsel Edward Fitzgerald KC said in the hearing on Monday, “the assurance that Assange could argue his First Amendment right is not good enough.”
His prospects on appeal must be on solid ground. To refuse to guarantee important defences in a criminal trial simply because someone is not a citizen of a country where they are being tried would be seen by many lawyers as anathema to the idea of equality before the law.
Of course, Assange is not out of the woods yet, with the full appeal yet to come, but this decision surely strengthens the hand of the Albanese government to pressure the Biden administration for an urgent political resolution.
Let’s also consider the humanity of the situation. Leaving aside the politics, Assange’s health is in serious decline. Yet again, as for the March hearing, he was too unwell to attend court. Rebecca Vincent from Reporters Sans Frontières tweeted: “The last two times I visited him in prison I was worried by his state of mental and physical health.”
The decision to grant Assange leave to appeal should be cautiously welcomed by journalists and publishers around the world.
If Assange had been shunted on to a plane within hours of an adverse decision , before his UK legal team could file an urgent injunction application with the European court of human rights, then this would have been a very dark day. A note of caution: if Assange is unsuccessful in his full appeal that day might yet come.
But back to the political opportunity the decision presents the Albanese government. It should use the time between now and the appeal hearing – whose date yet to be set – ,to tell the Biden administration it is well beyond time to be “considering” – as the president put it – the prime minister’s request that Assange be allowed to live with his wife, Stella, and two young sons in Australia.
Australia has never been in a better position to strike a deal with Washington over Assange. Submarines, Aukus, US troops based in Darwin – you name it – Australia has delivered for the US in spades. It’s time to call in a favour. Albanese can point to the federal parliament’s 86-to-42 vote in February backing the independent MP Andrew Wilkie’s motion to support Assange. Polling last year showed almost eight out of 10 Australians support Assange being allowed to walk free.
Assange’s win this week has made his supporters feel more positive, and so it should. Now is the time for Biden to read the tea leaves and ask himself: does he want his nation humiliated if the US fails in the final appeal, leaving him wishing he had listened to his Australian “friends” and dropped the charges? The answer must be no.
Greg Barns SC is an adviser to the Australian Assange Campaign
