Six legal arguments show why the US extradition of Julian Assange should be denied

The first of two articles examining Julian Assange’s upcoming extradition trial.

There are at least six legal reasons why the extradition request by the US against WikiLeaks founder Julian Assange should be dismissed by the UK courts. The main extradition hearing is scheduled to commence 24 February 2020, with district judge Vanessa Baraitser presiding. The evidence to support Assange is compelling.

1. Client-lawyer confidentiality breached

It’s a cornerstone of English law that client-lawyer confidentiality (also known as client-lawyer privilege) is sacrosanct and should not be violated. Yet Assange’s case raises serious questions about this.

In September 2019, The Canary reported that a private security company organised 24/7 surveillance of Assange during his stay at the Ecuadorian embassy in London. Spanish-based firm UC Global conducted the surveillance and installed a video streaming service direct to the US. Also monitored were meetings between Assange and his lawyers, including Melynda Taylor, Jennifer Robinson, and Baltasar Garzón.

Spanish lawyer Aitor Martinez, another member of Assange’s legal team, commented:

Over the years Mr. Assange and his defense team held legal meetings inside the embassy. Those meetings were protected by the lawyer-client relationship and the fundamental right to defense. However we can see those meetings were spied on, according to the videos published by different media. Under these conditions, it is clear that extradition must be denied.

Should it also be shown that the Ecuadorian government passed on evidence seized from the Ecuadorian embassy in London to the US authorities, then that could also equate to a breach of legal privilege.

It should also be noted that at the Daniel Ellsberg trial the judge dismissed charges relating to the Espionage Act given that evidence against him had been obtained illegally (via a break-in).

2. The initial charge is flawed

The initial charge raised in the indictment against Assange is “conspiracy to commit computer intrusion” in relation to the Computer Fraud and Abuse Act (CFAA). The Canary suggested this charge is flawed.

For example, the US authorities claim that during an exchange with Assange, whistleblower Chelsea Manning told him: “After this upload, that’s all I really have got left”. Assange allegedly responded, “Curious eyes never run dry in my experience”. However, this simply states that a source was encouraged to provide further information – which is what all journalists do.

Elsewhere in the indictment, it states:

it was part of the conspiracy that Assange and Manning used a special folder on a cloud drop box of WikiLeaks to transmit classified records containing information related to the national defense of the United States.

Electronic Frontier Foundation writer Cindy Cohen adds that the practices referred to in the indictment involve standard security measures, such as:

using a secure chat service, using cloud services to transfer files, removing usernames, and deleting logs to protect the source’s identity.

3. Initial charge relies on co-operation from Manning

In April 2019, The Canary reported how a 40-page affidavit, submitted by FBI agent Megan Brown to the WikiLeaks Grand Jury, could provide clues to how the prosecution of Assange might proceed.

An extract of the chat logs between Manning (Bradass87) and FBI informant Adrian Lamo was presented at her court-martial. Another selected chat log between Manning and ‘Nathaniel Frank’ (alleged by US authorities to be Assange) was also presented. (A fuller, un-redacted version of the chat logs is available.)

But there are problems with that evidence. On page 21 of the FBI affidavit, reference is made to a question to ‘Frank’ about LM [LAN Manager] hash cracking (breaking a password in the network Manning had access to). ‘Frank’ responded by saying “Yes… we have rainbow tables for LM”. Two days later, Manning asked if there were “any more hints about this LM hash?” ‘Frank’ stated, “no luck so far.”

Crucially, the FBI affidavit adds:

Investigators have not recovered a response by Manning to Assange’s question, and there is no other evidence as to what Assange did, if anything, with respect to the password.

In other words, the affidavit indicates that successful prosecution of Assange on the critical password cracking charge (and perhaps on other charges too) will rely on Manning’s full co-operation. But she is still incarcerated, refusing to testify.

There is also no evidence that ‘Frank’ is Assange.

4. Additional charges raised by the US are political

The 17 charges subsequently added to the initial charge against Assange relate to the Espionage Act. But as pointed out by The Canary, some of the world’s most high-profile media outlets directly partnered with WikiLeaks to publish the content of leaked documents.

Under UK law an extradition request can be rejected if charges raised are accepted as being political. In this particular case that is apparent, given it can clearly be argued that the prosecution of Assange is selective.

5. US legal precedent argues that Assange’s work is protected by the US Constitution

According to WikiLeaks editor in chief Kristinn Hrafnsson, the US government does not believe that foreign nationals, including journalists, are protected by the First Amendment of the US Constitution:

WikiLeaks' Kristinn Hrafnsson: "We have now learned that the United States do not consider foreign nationals to have a first amendment protection…they have decided they have extra-territorial reach… This is extremely serious and of grave concern to all journalists" pic.twitter.com/Gk69G1wNsc

— WikiLeaks (@wikileaks) January 24, 2020

However, in July 2019 The Canary reported that Judge John Koeltl of the US District Court for the Southern District of New York takes a different view. He dismissed a civil lawsuit by the Democratic National Committee (DNC), alleging that WikiLeaks conspired with the Russian government to steal and leak DNC emails.

Significantly, the judge commented:

If WikiLeaks could be held liable for publishing documents…then so could any newspaper or other media outlet… This type of information is plainly of the type entitled to the strongest protection that the First Amendment offers.

Greg Barns, a barrister and long-time adviser to the Assange campaign, told The Canary:

The court, in dismissing the case, found that the First Amendment protected WikiLeaks’ right to publish illegally secured private or classified documents of public interest, applying the same First Amendment standard as was used in justifying the The New York Times publication of the Pentagon Papers.

6. Threats of violence against Assange mean he’s unable to receive a fair trial

There are numerous examples of threats by US citizens, some prominent, against Assange’s life. Washington Post columnist Jeffrey T Kuhner, in an article headlined ‘Kuhner: Assassinate Assange?’, commented:

Mr. Assange is not a journalist or publisher; rather, he is an enemy combatant – and should be treated as such… We should treat Mr. Assange the same way as other high-value terrorist targets.

As reported by The Canary, there have been many inflammatory statements, including death threats, issued by US politicians and political commentators against Assange. For example:

• Former Republican vice-presidential candidate Sarah Palin reportedly demanded Assange be hunted down like the Al-Qaeda leadership.
• Former political operative and media pundit Bob Beckel suggested in 2011 that the US should assassinate Assange, saying: “A dead man can’t leak stuff. This guy’s a traitor… treasonous. And he has broken every law of the United States… And I’m not for the death penalty, so… there’s only one way to do it: illegally shoot the son of a bitch”.

It can be argued, therefore, that the case against Assange is prejudiced and that he cannot receive a fair trial in the US.

Implications

Each of any one of the six arguments summarised above could arguably be grounds for dismissal of the extradition request by the US. Collectively, they present an even stronger case for Assange’s defence.

The outcome of the extradition hearings will determine not only the fate of Assange but possibly the fate of journalists globally.

(Part Two of this article will examine the flaws in the UK court proceedings.)

Featured image via screengrab