JURIST Guest Columnist Prajakta Pradhan, a first-year student at Dr. Ram Manohar Lohia National Law University in Lucknow, India, discusses the legal issues surrounding Julian Assange's possible extradition the US...

Julian Assange is an Australian hacker, famous for revealing US secrets relating to war crimes committed in Iraq and Afghanistan. A whole cache of classified information was published by Assange’s organization WikiLeaks, which revealed the details of the ruthless murders of innocent civilians and the capture of hundreds of innocent civilians in the US’s Guantanamo Bay Prison. Assange was able to do this with the help and assistance of whistle-blower Chelsea Manning, a former US Army Intelligence analyst. She had access to the classified information and passed it on to WikiLeaks.

Assange was able to procure such confidential information through a program he developed. As a programmer, he created a platform for whistle-blowers to send information to WikiLeaks anonymously. This technological finesse helped him get his hands on top-secret information without compromising the security and identity of the information provider. Chelsea was exposed not through WikiLeaks, but through online correspondence, Adrian Lamo sent this information to the US Army’s Criminal Investigation Command. Chelsea was arrested and tried on twenty-two separate charges and subsequently jailed for them. She may be considered a hero since her original sentence was commuted and she preferred to go to jail again rather than testifying against Assange.

Charges Against Assange

On April 11, Assange was forcibly arrested at the Ecuadorian Embassy in London and was heaved into Belmarsh Prison for alleged violations of his bail contracts. Assange now faces extradition to the US where he may face jury indictment on charges of illegally hacking into a government computer. The indictment clearly states that Assange is charged for conspiring with Manning to hack government computers to obtain highly classified and secret information. The eighteen charges against him arise from the highly controversial and barbaric Espionage Act. Never before has this act been used against media groups or publishers.

A difference in opinion regarding criminal charges against Assange appear between different US Administrations: The Obama Administration rejected criminal charges against Assange claiming it would hamper freedom of the press. Even in Edward Snowden’s case, which including the leaking of highly confidential information from the National Security Agency (NSA), agencies that published his intel were not criminally charged by the government. Even the current Trump Administration, who previously applauded WikiLeaks for its release of information against rival Hilary Clinton, now supports criminal charges against WikiLeaks.

Violation of International Law

Assange was thrown into the Belmarsh prison in April. The special reporter and medical team of the United Nations visited him in May and their report stated that Assange presented “all [of] the symptoms typical for prolonged exposure to psychological torture.” Even though this report demanded immediate healthcare for Assange, the UK Government has outrightly rejected the claims and demands put forward by the Nils Meltzer, special reporter. Nils is of the opinion that this case has never been about Assange’s guilt or innocence, but rather is about the consequences one may face if you try to reveal information against the world’s strongest governments.

Assange is facing a trial in the UK for extradition to the US. Before deciding whether Assange is to be extradited, the UK authorities need to evaluate and take into consideration the United States’ approach to international law. The US has even gone as far as calling the International Criminal Court (ICC) illegitimate. The US Secretary of State has already revoked the visa of ICC’s Chief Prosecutor and threatened the court with economic sanctions. The US has a history of withdrawals from international organizations and treaties, which shows that the country only respects international law so long as it is beneficial. Such an attitude hardly supports the extradition of Julian Assange to the US to face a trial.

Under international law, if there is potential psychological torture through extradition then the extradition is rendered illegal. The European Court of Human Rights (ECHR) has made it clear that a person who awaits the death penalty, death trial, or where it is possible that evidence against them would be obtained through torture, then that person must not be extradited. In the present case, Julian Assange is facing seventeen charges carrying a minimum of ten years imprisonment in addition to a computer fraud charge of five years imprisonment. But, the treaty between UK and US bars extradition for political offenses. International law does not provide an objective definition for what constitutes a political crime, nor does it clearly explain the relationship between a general body of law and a regional one. Due to the fact that the Espionage Act has traditionally been used to frame charges against political offenders has also been used to frame charges against Assange, this case appears to be a political one which would bar extradition.

The Statute of Limitations

The statute of limitations prevents the prosecutor from charging a person for crimes that were committed more than five years ago. This five-year limit is applicable for both conspiracy and computer fraud charges. The grand jury returned the indictment just before the eighth anniversary of the day when Assange was accused of conspiring with Manning. So, the question is whether the statute of limitations will apply or not. As it turns out, this statute also contains an exception which states that acts of terrorism transcending national boundaries would have an extended limit of eight years. In this case, the alleged conspiracy transcended national boundaries, but is it an act of terrorism?

The United States Justice Department will have to convince the British Government and Courts that Assange would be given a fair trial and allowed to use any applicable defenses, including the statute of limitations if he is extradited. The British Court has the option of either denying extradition on such legal loopholes or trusting the American Judicial System to provide a fair trial for Assange.

Concerns About Right to Freedom of Speech and Expression

Freedom of the press worldwide is already suffering due to stringent measures now followed by various governments to control the media that publishes material against them. The act by WikiLeaks is a common component of journalism. If receiving and publishing information is considered a crime then all the news agencies are criminal organizations.

An attack on Julian Assange is an attack on the fundamental freedom of the press because the secret information was leaked by Chelsea Manning and she served a sentence in jail for it. If anyone should be accused or charged for breach of security, it is Chelsea Manning. If the US wants to hold the press responsible then why leave out The Guardian, The Washington Post or the New York Times. Another question that arises here is: did Assange conspire to hack US secret documents, or did he just accept information which was provided to him by a whistle-blower? It appears he only accepted the information which was passed onto him. A distinction must be made between a reporter who steals and leaks information and one who only reports it to the general public. Assange did not leak information for personal gain. He revealed the information for the public good. He exposed the war crimes committed by the US. The Pentagon Papers case was also based on the leak of classified information. In that case, the US Supreme Court stated that the New York Times had the right to publish that information under the First Amendment’s protection of freedom of the press.

According to the Guardian’s editor, Katharine Viner: “State power should never be used to suppress the actions of whistle-blowers and investigative journalists pursuing stories that are clearly in the public interest. The US extradition case against Julian Assange is a troubling attack on press freedom and the public’s right to know.”

Conclusion

Charging a publisher for exposing valuable information for the public good is indeed detrimental to press freedom worldwide. If such a precedent is set, then the complete demise of respect for international law and press freedom is soon to come.

Prajakta Pradhan is a first-year BA.LLB student at Dr. Ram Manohar Lohia National Law University in Lucknow, India. Prajakta is also a student member of the Internship and Placement Committee of RML.

Suggested citation: Prajakta Pradhan, The Annihilation of International Law and the Right to Freedom of Speech: Julian Assange, JURIST – Student Commentary, April 25, 2020, https://www.jurist.org/commentary/2020/04/prajakta-pradhan-assange-extradition/

This article was prepared for publication by Gabrielle Wast, Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org