The Prosecution of Julian Assange and the Threat to Freedom of the Press and Human Rights

By Stephen RohdeJanuary 3, 2021

The Prosecution of Julian Assange and the Threat to Freedom of the Press and Human Rights
ON APRIL 5, 2010, WikiLeaks founder Julian Assange released a classified gun-sight video of a US Army Apache helicopter firing on unarmed civilians in Baghdad. The video, labeled “Collateral Murder,” had been recorded three years earlier, during a military raid that killed at least 18 civilians, including two Reuters journalists, and injured two children, while a US gunman can be heard saying, “Look at those dead bastards.” [1] The video had never before been seen publicly. “Collateral Murder” was part of 400,000 Iraq “significant activity reports,” 75,000 Afghanistan “significant activity reports,” 779 Guantanamo files, and 250,000 U.S. government cables which Assange published in 2010 and 2011. Le Monde, El País, Der Spiegel, The Guardian, and The New York Times subsequently published a wide array of articles based on what they received from WikiLeaks.

By June 2012, Assange had taken refuge in the Ecuadorian embassy in London, where he remained for seven years. In May 2019, the US Department of Justice indicted him on 17 counts under the Espionage Act of 1917 and one count under the Computer Fraud and Abuse Act. On April 11, 2019, the new Ecuadorian government expelled him. Outside the embassy, he was arrested by the London Metropolitan Police Service on outstanding warrants, including a provisional warrant at the request of the US government. Ever since, Assange has been incarcerated in HM Prison Belmarsh. In June 2019, the United States formally submitted an extradition request to the United Kingdom.

The prosecution and extradition of Assange raise important legal and constitutional issues which deserve greater attention than they have received, especially in the legal community. Does the prosecution of a publisher (not a leaker) for publishing classified information violate First Amendment protections for freedom of the press and freedom of speech? Is Assange being singled out for prosecution for the kind of news gathering and publishing of leaked information that prominent, award-winning investigative reporters and mainstream publishers such as The New York Times and The Washington Post do all the time? Did Assange cause harm to US national security? Do exceptions for “political offenses” and “political opinion” preclude the United Kingdom from extraditing Assange? Should extradition be denied because there is a sufficient risk that he will be subjected to the same conditions of solitary confinement and abusive treatment as Chelsea Manning, which a UN rapporteur characterized as bordering on torture and cruel, inhuman, and degrading treatment?

The use of the Espionage Act, signed into law by President Woodrow Wilson two months after the US entry into World War I, suggests to civil libertarians and journalism groups that the Assange prosecution is politically motivated. Wilson, like Trump, demonized dissenters calling them “creatures of passion, disloyalty, and anarchy” who “must be crushed out.” By 1918, 74 left-wing newspapers had been denied mailing privileges. All told, the DOJ invoked the Espionage Act and the subsequent Sedition Act of 1918 to prosecute more than 2,000 dissenters for allegedly disloyal, seditious, or incendiary speech.

The Role of WikiLeaks in Exposing Government Wrongdoing, Corruption, and Violations of International Law

Assange established WikiLeaks in October 2006 to provide a place for newsworthy information to be released and shared with publications around the world. In 2013, the Obama Department of Justice declined to pursue charges against Assange for publishing classified documents due to what officials described as the “New York Times problem”: how could the government prosecute Assange but not other news organizations which also published classified material? On June 19, 2014, human rights and press freedom organizations sent a letter to Attorney General Eric Holder urging him to close all criminal investigations into Assange due to concerns that “actions against Wikileaks undermine the commitment of the U.S. Government to freedom of speech.”

The only judicial analysis addressing the legal arguments Assange is asserting to fight extradition arose in a civil lawsuit the Democratic National Committee filed in 2018 against the Russian Federation, WikiLeaks, Assange, and others alleging they conspired to hack into the DNC email system and publish embarrassing information which allegedly contributed to Hillary Clinton losing the 2016 presidential election. [2] The lawsuit alleged that on June 12, 2016, Assange told a British television audience that WikiLeaks had obtained “leaked materials concerning the Democratic presidential candidate” and on July 22, 2016, WikiLeaks began publishing over 20,000 emails and other documents. WikiLeaks filed a motion to dismiss on First Amendment grounds, which was supported by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia Law School, and the ACLU.

In July 2019, in an 81-page opinion, US District Judge John G. Koeltl characterized WikiLeaks as “an international news organization” and specifically upheld Assange’s First Amendment right to knowingly publish stolen material. The judge accepted the DNC’s allegations that Assange “solicited stolen documents” and then “coordinated” to “publish the stolen documents at times helpful to the Trump Campaign.” The ruling relied principally on the Pentagon Papers decision, New York Times Co. v. United States, 403 U.S. 713 (1971), and Bartnicki v. Vopper, 632 US 514 (2001), which held the publication of a stolen recording by a defendant who knew or had reason to know the recording was obtained illegally was protected by the First Amendment. Judge Koeltl held that it is “constitutionally insignificant that WikiLeaks knew the Russian Federation had stolen the documents when it published them” or that “WikiLeaks solicited the stolen documents from Russian agents.”

While the DNC, like the Trump administration in the extradition proceeding, argued that WikiLeaks was not engaged in “normal” journalistic services, the court disagreed, pointing out that the DNC conceded that “meeting with information thieves” and “soliciting stolen information” are “common journalistic practices.” Judge Koeltl found that under the First Amendment “[j]ournalists are allowed to request documents that have been stolen and to publish those documents.” Therefore, “the DNC cannot hold WikiLeaks or Assange liable for publishing the information that Russian agents stole.” Since what WikiLeaks and Assange did is protected by the First Amendment, the lawsuit was dismissed with prejudice. Given the similarities between the DNC case and the accusations in the Assange indictment, Judge Koeltl’s ruling, based on well-established Supreme Court precedent, poses a serious obstacle for the Trump DOJ on the most elemental aspects of its case against Assange.

Does the Prosecution of Assange “Poses a Grave Threat to Press Freedom in the United States”?           

On September 7, 2020, Judge Vanessa Baraitser opened the extradition hearing of Julian Assange in the Old Bailey criminal courthouse in London. For the next three weeks, a parade of witnesses presented evidence on the pivotal question whether Assange should be extradited to stand trial in the United States. [3] Assange’s defense counsel contends he is a journalist, WikiLeaks is a publisher, and as such they are entitled to the guarantees of the First Amendment and Article 10 of the European Convention on Human Rights [4], which protect freedom of the press. [5] The prosecution, acting in the name of the United States, argues that “Assange is not being prosecuted for mere publication or reporting,” but instead is being accused of “conspiring” with Manning, “soliciting” classified information, having “direct contact” with Manning, and “encouraging” Manning to steal classified documents. [6]

The defense responds that the prosecution is attempting to criminalize standard techniques of news gathering that investigative reporters and mainstream publications, such as Le Monde, El País, Der Spiegel, The Guardian, The Washington Post, and The New York Times, use all the time. They “solicit” classified information, have “direct contact” with sources, and “encourage” those sources to obtain classified information. And to complete the criminalization, the prosecution simply labels these traditional news gathering activities with the sinister term “conspiracy.”

The defense called several witnesses to establish that Assange is entitled to the same legal, constitutional, and international protections afforded all journalists and publishers. The key elements of Assange’s defense were brought into sharp focus by an extensive report written by Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University. Jaffer has litigated and argued cases in the Supreme Court; testified before Congress and other government bodies; and written scholarly and popular articles, as well as two books, on topics relating to national security and civil liberties. [7] “The indictment of Mr. Assange,” his report begins, “poses a grave threat to press freedom in the United States. This case is the first in which the U.S. government has relied on the 1917 Espionage Act as the basis for the prosecution of a publisher.” Jaffer states that the

indictment focuses almost entirely on the kinds of activities that national security journalists engage in routinely and as a necessary part of their work — cultivating sources, communicating with them confidentially, soliciting information from them, protecting their identities from disclosure, and publishing classified information.

Regarding the political nature of the prosecution, Jaffer noted that

President Donald J. Trump is engaged in an ongoing effort to incite public hostility toward the media. He habitually attaches the label “fake news” to journalism he perceives to be critical of him, and the label “enemy of the people” to journalists who do not reliably parrot government talking points.

Against this background, Jaffer states that “the indictment of Mr. Assange under the Act was intended to deter journalism that is vital to American democracy, and the successful prosecution of Mr. Assange on the basis the activities described in the indictment would have precisely that effect.”

Jaffer notes that in 1973, legal scholars Harold Edgar and Benno Schmidt Jr. described the Espionage Act as a “loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets” because the Act imposes the same severe penalties on subsequent publishers — i.e., not just on leakers, and not just on the news organizations that first publish the leaks, but on anyone who later shares the leaked information.

Jaffer notes that the extraordinary breadth of the Act, leads to selective prosecution. “The Act is so sweeping, and leaks are so frequent, that it would be impossible for the government to prosecute every violation of the Act, or even to prosecute most of them.” He quotes two top newspaper editors who wrote, “Government officials, understandably, want it both ways. They want us [newspapers] to protect their secrets, and they want us to trumpet their successes.”

Jaffer states that “informed public deliberation about matters relating to war and security would be impossible if the press did not publish classified information.” According to an affidavit Max Frankel, then the Washington Bureau chief for The New York Times, filed in the Pentagon Papers case, if the press did not publish official secrets, “there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington and there could be no mature system of communication between the Government and the people.”

“If the press did not publish classified information without authorization,” Jaffer writes, “public debate about war and security would take place in an information environment controlled almost entirely by executive branch officials.” He points out that “[m]uch of the initial reporting about the Bush administration’s torture policies relied on anonymous sources who disclosed classified information,” and reporting “about unlawful surveillance by the National Security Agency was similarly based on classified information supplied to the media without authorization.”

A high point in the hearings was the appearance of whistleblower Daniel Ellsberg. He explained that he had copied and released the Pentagon Papers, comprising 7,000 top secret files, to The New York Times in 1971 because they demonstrated that the United States government had started and continued the Vietnam War “with the knowledge that it could not be won” and that successive presidential administrations continued to lie to Congress and the public. Then as now “the exposure of illegality and criminal acts institutionally and by individuals was intended to be crushed by the administration carrying out those illegalities.” Ellsberg testified that the WikiLeaks publications are “amongst the most important truthful revelations of hidden criminal state behavior that have been made public in U.S. history.” The American public “needed urgently to know what was being done routinely in their name, and there was no other way for them to learn it than by unauthorized disclosure.”

On cross-examination, prosecutor James Lewis attempted to draw a distinction between Ellsberg and Assange. “I totally disagree with the ‘good Ellsberg / bad Assange’ theory,” Ellsberg testified. At the time of his releases, Ellsberg was harshly criticized, just like Edward Snowden, Manning, and Assange are now being criticized. Lewis argued that unlike the Pentagon Papers, the WikiLeaks disclosures caused harm, but Ellsberg pointed out that he did not redact a single word of his releases, even allowing the publication of the name of a clandestine CIA agent (who was already known in Vietnam), because he didn’t want the public to think that the files had been edited. Lewis pressed Ellsberg to concede that WikiLeaks’s documents were more harmful: “Are you saying no one was placed in grave danger?” “It appears not,” Ellsberg responded, “as there was no harm, as shown by the Defense Department,” referring to the fact that in Manning’s court martial, the government could not point to a single death that resulted from WikiLeaks’s releases.

The defense also called Eric Lewis, chair of Reprieve who represents Guantanamo and Afghan detainees seeking accountability for torture and religious abuse while in US custody. Lewis cited then-CIA director Mike Pompeo, who publicly castigated WikiLeaks and declared that Assange would be allowed no First Amendment rights, as well as then–US Attorney General Jeff Sessions who in April 2017 announced that Assange’s arrest was a “priority,” directing federal prosecutors to revisit a case which the Obama administration had decided not to pursue. “This case was dormant when the Trump administration began,” Lewis said. “The evidence hasn’t changed. Witnesses haven’t changed. The First Amendment hasn’t changed.” 

Do Exceptions for “Political Offenses” and “Political Opinion” Preclude the UK from Extraditing Assange?

The UK-US Extradition Treaty of 2003 was ratified by the US Senate on September 30, 2006. [8] It had been implemented by the UK Extradition Act of 2003. [9] Article Four of the Treaty provides that “[e]xtradition shall not be granted if the offense for which extradition is requested is a political offense.” But the prosecution argues that since the UK Extradition Act of 2003 does not contain an exception for a “political offense,” Article Four does not apply to Assange’s extradition. The defense disputes that and in any event counters that under Section 81 of the UK Extradition Act of 2003, a person’s extradition is barred if

it appears that (a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or (b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions. (Emphasis added)

The defense presented evidence to show that Assange is being prosecuted because of his “political opinions” and if he is extradited he is likely to be “prejudiced at his trial or punished, detained or restricted in his personal liberty” by reason of his “political opinions.” Consequently, despite how the court rules on the “political offense” exception under the Treaty, the entire question of whether the crimes for which Assange is charged were political in nature and whether the prosecution is politically motivated by reason of his “political opinions,” is squarely before the court.

In addition to Jaffer, Ellsberg, and Lewis, the defense presented witnesses on the political nature of the WikiLeaks releases. Dean Yates, Baghdad bureau chief for Reuters at the time of the Collateral Murder incident, tried to find out what actually happened during the attack. But US officials stonewalled him and rejected his Freedom of Information Act request for the entire video. Yates testified the “US knows how devastating Collateral Murder is, how shameful it is to the military — they are fully aware that experts believe the shooting of the van was a potential war crime.” He concluded that the Reuters reporters

would have remained forgotten statistics in a war that killed countless human beings, possibly hundreds of thousands of civilians. Had it not been for Chelsea Manning and Julian Assange […] the truth of what happened on that street in Baghdad on July 12, 2007, would not have been brought to the world. What Assange did was 100 percent an act of truth-telling, exposing to the world what the war in Iraq in fact was and how the US military behaved and lied. The video was picked up by thousands of news organizations worldwide, sparking global outrage and condemnation of US military tactics in Iraq.

New Zealand investigative journalist and author of Other People’s Wars: New Zealand in Afghanistan, Iraq and the War on Terror, Nicky Hager testified about using WikiLeaks documents in his work. He said the military and diplomatic files released by WikiLeaks “greatly increased my understanding of the conduct of the war. It would have been impossible to write the book without these confidential and leaked sources.” Hager testified that in the case of war, “information which is classified is essential to allow journalism to perform its roles of informing the public, enabling democratic decision making and deterring wrongdoing.”

Hager worked with Assange to report on the State Department cables and testified about WikiLeaks’s painstaking redaction process. One of his jobs was to “identify any [cables] that should not be released for reasons such as personal safety of the named people” and found WikiLeaks staff “to be engaged in a careful and responsible process.” Hager said that he spent a lot of time with Assange and that the “person I got to know was very different from the image portrayed in the US media.”

On cross-examination, the prosecution asked Hager about the release of the unredacted embassy cables in 2011. He testified, “My understanding is that the information came out before Wikileaks made that decision,” referring to the fact that cables were published on Cryptome and had already been mirrored on several other websites beforehand. Pressed further, Hager said that he was “glad that the redacted cables were out so long, that there was a nine-month period to warn any informants who could’ve been named.” Because WikiLeaks had first published redacted cables beginning in late 2010, the US government was on notice as to whom it should alert. That lead time, Hager said, is probably why there were no deaths traced to the WikiLeaks’s releases.

German computer science professor Christian Grothoff testified about his research into the timeline of events surrounding the 2011 publication of the unredacted State Department cables. Grothoff pointed out that WikiLeaks was not the first outlet to publish that archive. Others published it first and none have been prosecuted for doing so. According to Grothoff, WikiLeaks took care to encrypt the file, but actions beyond Assange’s control led to the file’s release. WikiLeaks had shared the diplomatic cables with The Guardian journalist David Leigh via an encrypted file on a temporary website along with a strong passphrase to decrypt it. WikiLeaks and its media partners began publishing the redacted cables in November 2010. However, in February 2011, Leigh and fellow Guardian reporter Luke Harding published a book about WikiLeaks in which one chapter title disclosed the entire passphrase which could be used to decrypt the file containing the unredacted cables. Grothoff testified that when WikiLeaks discovered this information had been made public, Assange and fellow WikiLeaks staff member Sarah Harrison called the US State Department to warn them that the cables were online unredacted but those warnings were ignored. Cryptome, a US-based leak site well known in the tech community, published a file containing the full unredacted cables yet Cryptome has never been prosecuted.

To corroborate Grothoff’s testimony, the defense read a witness statement from John Young, host of

I published on unredacted diplomatic cables on September 1, 2011 under the URL and that publication remains available at present. Since my publication on of the unredacted diplomatic cables, no US law enforcement authority has notified me that this publication of the cables is illegal, consists or contributes to a crime in any way, nor have they asked for them to be removed. [10]

The defense also called John Sloboda, co-founder of Iraq Body Count, an independent NGO devoted to continuously counting killings of civilians in Iraq. He testified about working with WikiLeaks on the 2010 Iraq War Logs, calling them “the single largest contribution to public knowledge about civilian casualties in Iraq.” The logs revealed an estimated 15,000 previously unknown civilian deaths. According to Sloboda, Assange imposed a “very stringent redaction process” to protect named sources from potential harm. On the importance of the WikiLeaks releases, Sloboda stated that 10 years on, the Iraq War Logs “remain the only source of information regarding many thousands of violent civilian deaths in Iraq between 2004 and 2009.”

Did Assange Conspire with Manning to Hack a Defense Department Computer?

A single count in the indictment accuses Assange of violating the Computer Fraud and Abuse Act by conspiring with Manning to crack a Defense Department computer password. To rebut this charge, the defense called digital forensic expert Patrick Eller, who was a criminal investigator in the US Army for 20 years and is now president of Metadata Forensics, which provides digital investigation and forensic examination in civil and criminal cases. Eller reviewed the indictments against Assange and the transcripts from Manning’s 2013 court martial to analyze the allegation that Assange and Manning engaged in a “conspiracy” to conceal Manning’s identity and steal more documents. The government argues that when Manning chatted over Jabber with user “Nathaniel Frank” (whom the government alleges but hasn’t proven is Assange) and asked for help cracking a “hash” (which is an encrypted portion of a password), she was attempting to gain increased access to government databases by disguising her identity. Instead, Eller concluded that in 2010 it would not have been possible to crack an encrypted password hash. He added, the “government allegation that there was an attempt to gain anonymity is greatly undermined by the tracking system which identified users.” The government says that Manning wanted to crack the password to be able to log in to a “ftpuser” account, which would make her look like an administrator, rather than the Bradley.manning account she was given as an intelligence analyst. But the military tracks computers based on IP addresses, not account details, so even if she were to log in with the admin account, it would still be traced back to her identifiable computer.

The State Department cables in question were stored in a government-wide intranet called SIPRNet. According to Eller, accessing this network does not require login information, so Manning already had access to it well beforehand. Furthermore, Eller testified, everyone — “millions” of people — tasked with using secret government documents would have had access to this database. What is far more likely, Eller testified, is that Manning wanted to use the admin account to download movies, music, and computer games.

Given Assange’s Physical and Mental Condition, Would His Extradition Be “Unjust or Oppressive” in Violation of UK and International Law?

Section 91 of the UK 2003 Extradition Act prohibits extradition if “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.” Article Three of the European Convention on Human Rights states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Under the Zakrzewski doctrine, [11] the extradition court has inherent “abuse jurisdiction” to safeguard the process to ensure that prosecutors have not “manipulated the process of the executing court for a collateral and improper purpose” or failed to describe the alleged extradition offense in a “fair, proper and accurate” manner.

To address these issues, the defense called a series a witnesses including Dr. Michael Kopelman, Emeritus Professor of Neuropsychiatry at the Institute of Psychiatry at King’s College London. Based on his visits with Assange in prison and his medical evaluations, Dr. Kopelman observed “loss of sleep, loss of weight, a sense of pre-occupation and helplessness as a result of threats to his life, the concealment of a razor blade as a means to self-harm and obsessive ruminations on ways of killing himself.” Dr. Kopelman testified, “I am as certain as a psychiatrist ever can be that, in the event of imminent extradition, Mr. Assange would indeed find a way to commit suicide.”

Prosecutor Lewis argued that Assange’s response to whether he agreed to be extradited (“No”) and his outbursts from the dock amid another witness’s testimony, indicated his ability to follow the proceedings and therefore he does not suffer from serious depression. Dr. Kopelman responded that he didn’t find these comments inconsistent with a diagnosis of severe depression, and if anything, Assange’s outbursts in the middle of a serious court proceedings support the diagnosis of Asperger’s syndrome.

In rebuttal, the prosecution called Dr. Nigel Blackwood, a psychiatrist who had interviewed Assange. Dr. Blackwood called Assange “moderately depressed” and admitted there was “some risk of a suicide attempt in the event of extradition,” but he didn’t feel it was a “high risk.” He found that Assange, whom he called a “very resilient” and “resourceful” man, would be capable of controlling his own risk of suicide. However, on cross-examination, Dr. Blackwood admitted that placing Assange in solitary confinement under Special Administrative Measures (SAMs), which would virtually bar him from communicating with the outside world, would be “deleterious” to his mental health.

The prosecution also called Seena Fazel, professor of Forensic Psychiatry at the University of Oxford, who specializes in prison suicide. Fazel testified that he found Assange to be “moderately depressed,” but acknowledged that he had been “severely depressed” in late 2019 and was treated with medication, and that Assange’s depression intensity is “episodic” and liable to fluctuate depending on his circumstances. He testified he doesn’t find Assange’s mental capacity such that he is unable to manage his own suicidal risk. Fazel agreed that Assange has “autistic-like traits” but he would be in the milder end of the autism spectrum.

On cross-examination, Fazel conceded that he is not an expert on US prisons, which have a six to seven times larger inmate population than the UK does. He admitted he did not know the full effect of SAMs, to which Assange would be subjected. He also conceded he is not familiar with Alexandria Detention Center, where Assange would be held in pre-trial confinement, or the ADX Florence in Colorado, where Assange is likely to be sent post-trial if convicted, where conditions under SAMs have been described by a former warden as a “clean version of hell” and “unfit for human habitation.” Discussing solitary confinement and lengthy prison sentences, Fazel agreed that “hopelessness is an important risk factor” for suicide and that Assange’s risk increases if he feels he has “bleak prospects.”

What Are the Consequences of the Assange Case for the Rule of Law?

According to James C. Goodale, counsel for The New York Times in the Pentagon Papers case and author of Fighting for the Press, if the prosecution of Assange succeeds, “investigative reporting based on classified information will be given a near death blow.” [12] Should Trump’s Justice Department succeed, Goodale believes that “[a]s soon as a reporter actively sought the information or cooperated with the source, the reporter would be subject to prosecution.” National security reporting “is not done by receiving information over the transom.” In an interview with Goodale, the longtime investigative reporter Seymour Hersh explained that he obtains classified information through a process of “seduction” in which he spends time trying to induce the source to give up the information. If he isn’t allowed to do that, Hersh says, “It’s the end of national security reporting.” The type of conspiracy theory the Trump administration is using against Assange, Hersh said, “would criminalize the reporting process.”

Marjorie Cohn, professor emeritus at Thomas Jefferson School of Law and former president of the National Lawyers Guild, agrees that the Assange prosecution “sets a dangerous precedent for journalists and media outlets that publish information critical of the government.” [13] According to Cohn,

the indictment of Assange is unprecedented. No media outlet or journalist has ever been prosecuted under the Espionage Act for publishing truthful information. That is a protected First Amendment activity. Journalists are allowed to publish information that was illegally obtained by a third person and is a matter of public concern. The US government has never prosecuted a journalist or newspaper for publishing classified information, which is an essential tool of journalism.

According to Ben Wizner, an attorney and director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project,

This is an extraordinary escalation of the Trump administration's attacks on journalism, and a direct assault on the First Amendment. It establishes a dangerous precedent that can be used to target all news organizations that hold the government accountable by publishing its secrets. And it is equally dangerous for US journalists who uncover the secrets of other nations. If the US can prosecute a foreign publisher for violating our secrecy laws, there’s nothing preventing China, or Russia, from doing the same. [14]

At the conclusion of Assange’s extradition hearing on October 1, Judge Baraitser gave both sides time to file closing arguments in writing and advised all parties that she would announce her ruling on January 4, 2021. Under UK law, her decision is subject to an automatic appeal to the magistrate court, followed by further UK appeals, after which it is subject to review by the European Court of Human Rights.

Geoffrey R. Stone, in his masterful Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism, offers this challenge.

To strike the right balance, this nation needs political leaders who know right from wrong; federal judges who will stand fast against the furies of their age; members of the bar and the academy who will help Americans see themselves clearly; a thoughtful and responsible press; informed and tolerant citizens who will value not only their own liberties, but the liberties of others; and justices of the Supreme Court with the wisdom to know excess when they see it and the courage to preserve liberty when it is imperiled. And, so, we shall see. [15]


Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.


Featured image: "RUEDA DE PRENSA CONJUNTA ENTRE CANCILLER RICARDO PATIÑO Y JULIAN ASSANGE" by Cancillería del Ecuador is licensed under CC BY-SA 2.0. Image has been desaturated.

Banner image: "Brisbane -protest-wikileaks" by Rae Allen is licensed under CC BY 2.0.



[2] Democratic National Committee v. The Russian Federation, et al (SDNY, Case 1:18-cv-03501-JGK),

[3] The extradition hearings concluded on October 1, 2020. As of this writing, an official transcript of the proceedings has not been released to the public. The Courage Foundation, which opposes Assange’s extradition, posted a daily summary of the proceedings which is the source used in this article and is available at

[4] Article 10, Section 1, of the European Convention on Human Rights entitled Freedom of Expression, provides that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

[5] The Opening Summary of Defence Case filed February 24, 2020, can be found at

The Defence Submission filed August 24, 2020, can be found at

[6] The Opening Note on Behalf of the United States of America filed July 30, 2019, can be found at The Skeleton Argument on Behalf of the United States of America filed September 2, 2020, can be found at

[7] Jaffer’s full report can be found at

[8] UK-US Extradition Treaty of 2003

[9] The UK Extradition Act of 2003 can be found at

[10] The defense considers this a critical piece of evidence against the US government’s charge of publishing unredacted diplomatic cables in 2011. The prosecution must prove “dual criminality,” that Assange’s alleged offenses in the United States would also be a crime in the United Kingdom but republishing classified documents is not a crime under the UK’s Official Secrets Act.

[11] Named after Lukasz Zakrzewski v. The Regional Court in Lodz, Poland [2013] UKSC 2 .

[12] “More Than a Data Dump: Why Julian Assange Deserves First Amendment Protection” by James C. Goodale, Harper’s Magazine, April 2019,

[13] Interview conducted September 25, 2020.

[14] Statement by Ben Wizner, issued by the ACLU on May 23, 2019.

[15] Geoffrey R. Stone, Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism, W.W. Norton & Company, New York, 2004.

LARB Contributor

Stephen Rohde is a writer, lecturer, and political activist. For almost 50 years, he practiced civil rights, civil liberties, and intellectual property law. He is a past chair of the ACLU Foundation of Southern California and past National Chair of Bend the Arc, a Jewish Partnership for Justice. He is a founder and current chair of Interfaith Communities United for Justice and Peace, member of the Board of Directors of Death Penalty Focus, and a member of the Black Jewish Justice Alliance. Rohde is the author of American Words of Freedom and Freedom of Assembly (part of the American Rights series), and numerous articles and book reviews on civil liberties and constitutional history for Los Angeles Review of BooksAmerican ProspectLos Angeles Times, Ms. Magazine, Los Angeles Lawyer, Truth Out, LA Progressive, Variety, and other publications. He is also co-author of Foundations of Freedom, published by the Constitutional Rights Foundation. Rohde received Bend the Arc’s “Pursuit of Justice” Award, and his work has been recognized by the ACLU and American Bar Association. Rohde received his BA degree in political science from Northwestern University and his JD degree from Columbia Law School. 


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