Will a British court’s decision take Assange off the hook permanently?

A British judge, Vanessa Baraitser, has ruled that Julian Assange cannot be extradited to the United States because he is a suicide risk. But is he off hook, legally?   

The U.S. Justice Department apparently does not think so. Immediately following the British judge’s decision, it announced it would appeal using its United Kingdom barristers. Such appeals, according to U.K. sources, may take up to two years.

Will Assange, 49, win? It is hard for a U.S. lawyer — me — to say, but common sense tells me that when a trial judge determines someone is a suicide risk, it is very difficult for appellate judges to overrule that decision. A trial judge has looked into the eyes of the witnesses for the defendant who said he — Assange — is suicidal. Appellate judges cannot do this, and it would seem, therefore, they must rely on the judgment of the trial judge.

Assange’s troubles are probably not over. First, he may lose his appeal. And even if he wins, he still remains indicted and subject to “rendition” (i.e., kidnapping by the CIA).

I say this with some sorrow, since I am not a conspiracy theorist and I believe in the honesty and integrity of U.S. institutions. But there was uncontradicted testimony at Assange’s trial that employees of a Spanish security company allegedly had plotted to kidnap Assange or kill him, and that the same company, together with the CIA, secretly monitored Assange’s conversations with his lawyers.

Judge Baraitser, in her decision, noted there has been testimony about this plot and the wiretapping of Assange but she refused to comment on it. Her refusal was based on her view that the allegations involving the CIA were being tried in a Spanish court, but they must have had some influence on the judge’s decision. The whole matter is highly odoriferous, highly reminiscent of the U.S. government’s behavior in the Daniel Ellsberg/”Pentagon Papers” case in the early 1970s. The “plumbers” of Watergate fame broke into the offices of Ellsberg’s psychiatrist which, among other things, led to a mistrial of his prosecution under the Espionage Act in 1973.  

If I were Assange, I would not feel safe until I was curled up in my family’s bedroom in Australia with the door locked — and perhaps not even then.

Judge Baraitser decided that Assange was a suicide risk unable to withstand the harsh conditions of the prisons used by the U.S. for those accused of espionage. The prisons are generally referred to by the acronym SAM and are semi-solitary in nature. It is fair to say that the specter of Jeffrey Epstein’s suicide in a New York prison cell of comparable nature hung over this case, although there was only a brief reference to it in Judge Baraitser’s opinion.

Judge Baraitser decided only that Assange would not be extradited under the terms of the U.S.–U.K. extradition treaty. Since she decided to allow the government and the defense to have their say about almost anything they wanted, there was a trial of sorts under the Espionage Act anyway. But when she got to the end of her opinion, she said in effect that she was going to ignore the evidence brought out, concluding that a U.S. court should hear it, not her. And so, effectively, this “trial” never took place.

But, of course, it did take place — and we now know what the government’s case would look like under the Espionage Act if Assange is ever tried in this country. From a First Amendment point of view, the government will say that Assange had no First Amendment protection to publish the names of government sources; Assange will say that he had such a right because the government has never been able to identify one source that was harmed physically because of such publication.

There is no First Amendment precedent resulting from this case because, as noted, it never took place, technically speaking. And Judge Baraitser was careful not to make any First Amendment rulings — except one, which is rather amusing.

The government took the unusual position that Assange, as a non-citizen, probably had no First Amendment rights. To that, one is tempted to say: “Come on, give me a break — no First Amendment rights at all? Are we supposed to believe an Australian citizen publishing in Europe tried under U.S. law in a U.S. court would have obligations under U.S. law — but none of its benefits?”

Judge Baraitser thought this position was fairly ridiculous, too, and she said so in her opinion. So now it is the law of the U.K. that any invocation of the Espionage Act in the U.K. is subject to a gloss from the First Amendment — for whatever that is worth.  

Since Assange argued that he did have protection under the provision analogous to the First Amendment of European Human Rights Law (§10), there is precedent that Judge Baraitser has ruled that Assange’s activities were not protected by the ECHR (which presumably will survive Brexit). But §10 is not America’s First Amendment as such, merely its equivalent. If the case ever comes to a U.S. court, the application of the First Amendment would be argued anew.  

What will President-elect Biden do about this case? The answer is, for the foreseeable future, probably nothing. His Justice Department could drop the case on its own or with a wink of Biden’s eye. But I don’t see what’s in it for either Biden or the Justice Department to let Assange off the hook. 

This leads us to President Trump, who is being importuned by the likes of Tucker Carlson, Edward Snowden and others to pardon Assange. If Trump were to do so, the indictment would disappear and there would be no future temptation to “render” Assange to the U.S. 

For now, then, Assange is off the hook. The probability is that he will be permanently — but we shall see.

James C. Goodale was the vice chairman and general counsel of The New York Times and is the author of “Fighting for the Press: The Inside Story of the Pentagon Papers and other battles.”