A protester reads a newspaper outside the High Court in London on May 20.Kin Cheung/The Associated Press
WikiLeaks founder Julian Assange has won a victory in his prolonged battle to avoid extradition to the United States to face criminal charges over the publication of thousands of classified documents.
A panel of two British judges ruled on Monday that U.S. prosecutors had not provided sufficient assurances that Mr. Assange would get a fair trial and they granted him permission to appeal an extradition order.
In March, the judges said U.S. prosecutors had to provide three key assurances: that Mr. Assange will be able to make arguments during his trial based on the First Amendment of the U.S. Constitution, that he will not face the death penalty, and that his Australian citizenship will not prejudice the proceedings.
Both sides accepted that Mr. Assange would not face the death penalty, but Mr. Assange’s lawyer, Edward Fitzgerald, argued on Monday that the assurances given by the U.S. government on the other two issues couldn’t be guaranteed.
“Based on the principle of the separation of powers, the U.S. court can and will apply U.S. law, whatever the executive may say or do,” he said.
He added that there was no guarantee a U.S. court would not rule that as a foreigner Mr. Assange was not entitled to use the First Amendment as a defence. “What needs to be conclusively removed is the risk that he will be prevented from relying on the First Amendment on grounds of nationality,” Mr. Fitzgerald said.
James Lewis, a lawyer representing the U.S. government, said the “judicial branch of the United States will take due notice of this solemn assurance given by its government in the course of international relations.”
But he added that the charges against Mr. Assange did not relate to the First Amendment. “The position of the U.S. prosecutor is that no one, neither U.S. citizens nor foreign citizens, are entitled to rely on the First Amendment in relation to publication of illegally obtained national defence information giving the names of innocent sources to their grave and imminent risk of harm,” Mr. Lewis said in written submissions.
In a short ruling after the hearing, the judges – Victoria Sharp and Jeremy Johnson – allowed Mr. Assange’s appeal to go ahead, which could take months.
“The judges reached the right decision,” Stella Assange, Mr. Assange’s wife, said outside the court. “We spent a long time hearing the United States putting lipstick on a pig but the judges did not buy it. As a family we’re relieved but how long can this go on?”
U.S. prosecutors have charged Mr. Assange, 52, with computer hacking and 18 violations of the Espionage Act, a century-old law that prohibits anyone from unlawfully obtaining and publishing information relating to national defence. If convicted, he could face up to 175 years in jail.
Former Army intelligence analyst Chelsea Manning was given a 35-year sentence in 2010 for leaking the documents to Mr. Assange. Her sentence was commuted in 2017 by president Barack Obama, who called the punishment disproportionate.
All the charges against Mr. Assange relate to the publication by WikiLeaks of more than 250,000 secret military cables, reports and briefing notes in 2010 and 2011. The material exposed atrocities by U.S. soldiers in Afghanistan and Iraq and led to an outcry over American foreign policy.
British courts have deemed Mr. Assange a flight risk and he has been in London’s Belmarsh Prison ever since his U.S. indictment in 2019. Before that, he claimed asylum and spent seven years in the Ecuadorean embassy in London to avoid extradition to Sweden, where he was being investigated over allegations of sexual assault. The case was eventually dropped, but Mr. Assange was jailed in Britain for skipping bail and then held after U.S. prosecutors filed charges.
In 2020, District Justice Vanessa Baraitser blocked Mr. Assange’s extradition on humanitarian grounds. That ruling was overturned a year later by an appellate panel of three High Court justices after the U.S. Department of Justice provided assurances that Mr. Assange would not be subjected to restrictive solitary confinement measures reserved for prisoners convicted of terrorism and national-security violations.
Lawyers representing the U.S. government have consistently argued that the case against Mr. Assange was not about press freedom and that he put lives in danger by publicizing the names of sources.
Last month, U.S. President Joe Biden said he was considering Australia’s request to drop the charges and allow Mr. Assange to return to Australia. U.S. prosecutors have not commented.