If I were the British interior minister, I would deport Assange to Australia and let them extradite him to the US if they can

By Alper Ali Riza

Julian Assange is an Australian journalist languishing in prison in the UK fighting extradition to the US for offences of obtaining and publishing sensitive US intelligence that exposed “criminality on the part of the US government on a massive scale”.

Last week the English High Court fudged his appeal against extradition. It granted him provisional leave to appeal and adjourned his case to enable the US government to provide assurances that if extradited his freedom of expression would be protected; he would not be prejudiced on account of his nationality; and not face the death penalty.

Love him or loathe him, the pressure to support him is hard to resist, but this column has to be fair in its analysis of his case and avoid bias in favour of the fourth estate.

First a little background. Assange founded WikiLeaks in 2006. It is a whistleblowing website that solicits information and exposes state wrongdoing which it publishes unconstrained by the strings that attach to orthodox media outlets.

Between 2010 and 2011 Assange procured a huge amount of classified information from Chelsea Manning, a US intelligence analyst assigned to the Iraq desk who went rogue – or became a conscientious whistleblower, if you prefer. She was convicted of espionage in 2010 and served seven years of a 35-year sentence – commuted by President Barack Obama before he left office in 2016.

Assange published the material incontinently, but the US government denies that the offences for which it seeks his extradition are for publishing material that exposed US war crimes and human rights violations. The main offences the US government wishes to prosecute Assange are those of unlawfully revealing the names of individuals in Afghanistan, Iraq and elsewhere who risked their lives to provide information to the US.

He denies he endangered US agents worldwide or that anyone was harmed as a result of his disclosures and argued he was exercising his right of freedom of expression protected by the ECHR and the US first amendment that safeguards freedom of the press. The US government claims Assange’s revelations caused significant harm and the court accepted that there was evidence of significant harm including physical harm as well the harm to US national security.

Extradition is the process by which states agree to cooperate in the prosecution and punishment of fugitive offenders wanted in one state and present in another. To do this, states enter into treaties bilaterally or multilaterally for mutual assistance in arresting and transferring alleged offenders – the idea being that no state should provide a safe haven for criminals. It overlaps but differs from deportation which is concerned with the removal of foreign criminals and illegal immigrants back to their country.

The golden thread that runs through extradition treaties worldwide is that offences for which extradition is sought are exempt if they are political offences. A US-UK extradition treaty was ratified in 2007 and provides that extradition will not be ordered if the offence for which it is sought is political.

English law does not define political offences. In the past it used to be left to the courts to determine whether an offence was political. The court in the Assange case seemingly accepted that the offences for which the US sought his extradition were political but held this did not help his case. This was because the exemption in the US-UK extradition treaty had not been incorporated into UK domestic legislation even though it had been incorporated in previous legislation going back two centuries.

The UK government negotiates and concludes treaties with other states that bind the UK in international law, but treaties cannot protect individual rights unless incorporated into UK domestic law. So the UK government could have told the US government that it was treaty-bound not to surrender Assange but it did not do so because the Americans hold the whip hand.

This is not the first time that Assange has been frustrated by laws that do not mean what they say. In 2010 he was arrested in UK on a European Arrest Warrant (EAW) issued by the Swedish prosecutor for his extradition to Sweden for sexual offences against two women. He had gone to Sweden on a short lecture tour during which he is alleged to have sexually assaulted two women and raped one of them. The allegation of rape was for having unprotected sex without the woman’s consent – a serious sexual offence known as “stealthing”.

He resisted extradition to Sweden on number of grounds including that the real reason for the request for his extradition was that Sweden was primed to surrender him to the US and because the EAW was not issued by a “judicial authority”. The High Court dismissed all the grounds and he appealed to the Supreme Court but only on whether the Swedish prosecutor who issued the EAW was a “judicial authority”.

Assange argued that “judicial authority” meant a judge exercising independent unbiased judgement. The problem was that the phrase “judicial authority” had to have a wide flexible meaning as it was transplanted into the UK Extradition Act of 2003 from the EU Council Framework Decision of June 2002 on EAWs.

The Supreme Court held that “judicial authority” did not mean what it said. It decided that the term covered a wide spectrum of office holders in the administration of criminal justice that included judges as well as prosecutors.

Judgement was given at the end of May 2012 but Assange failed to surrender to the court and sought refuge in the Ecuadorian embassy in London’s Knightsbridge where he stayed for seven years until he was arrested in the embassy in 2019 and removed to prison pending his extradition to the US.

What to make of Julian Assange? The criminality he exposed included illegal rendition, torture, black site CIA prisons across Europe, extra judicial assassinations in Afghanistan and Pakistan and UK training death squads in Bangladesh.

So we need journalists like Assange, but it would be a foolish judge who grants him bail again, a naive host who invites him to stay and a brave whistle-blower that releases names of national security assets to him again. And if I were the British interior minister, I would deport him to Australia and let them extradite him to the US if they can.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge