From the First Amendment to the European Convention on Human Rights, Assange’s defense relies on freedom of expression.

On May 20, a two-judge panel of the High Court of England and Wales handed WikiLeaks founder and publisher Julian Assange a significant victory. Justice Jeremy Johnson and Dame Victoria Sharp granted him leave to appeal the U.K.’s extradition order on two grounds. The High Court will now schedule a hearing at which Assange will be allowed to argue that his rights to freedom of expression and to be free from discrimination based on his nationality would not be protected if he were extradited to the United States.

In the U.K., the right to appeal is not automatic. While they didn’t rule on the merits of Assange’s claims, Johnson and Sharp determined that the two issues have sufficient legal merit to be reviewed by the High Court.

“I welcome the High Court’s decision to allow the case to proceed to a full appeal,” said Alice Jill Edwards, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. “This is a terribly complex case, but at the heart of it are issues around human rights and values we hold as a society and the protections afforded to those who disclose potential war crimes.”

Speaking outside the courthouse after the May 20 hearing, Stella Assange, Julian’s wife, said the ruling “marks a turning point” and “we are relieved as a family that the court took the right decision. Everyone can see what should be done here. Julian must be freed,” adding, “This case is shameful and it is taking an enormous toll on Julian.”

Assange has been imprisoned for five years in London’s maximum security Belmarsh Prison on an indictment filed by the Trump administration and pursued by the Biden administration. Assange stands charged with 17 counts under the Espionage Act and one count of conspiracy to commit computer intrusion for WikiLeaks’s 2010-2011 revelation of evidence of U.S. war crimes in Iraq, Afghanistan and Guantánamo Bay. He faces 175 years in prison if extradited to the U.S., tried and convicted.

In March, Johnson and Sharp denied Assange permission to appeal on six of the nine grounds he raised, saying they did “not have any merit.” But the panel said that Assange had “a real prospect of success” on the three remaining grounds for appeal: If extradited to the U.S., Assange (1) would be denied the right to freedom of expression, (2) would be discriminated against because he’s not a U.S. citizen, and (3) could be sentenced to death.

The panel told counsel for the U.S. in March that if they provided the court with “satisfactory assurances” that Assange wouldn’t be denied any of these rights, he could be extradited to the U.S. without an appeal hearing. This was a departure from the High Court’s 2021 knee-jerk acceptance of U.S. “assurances” that Assange would be treated humanely if extradited, with no opportunity for the defense to rebut those assurances.

In April, the U.S. filed the following ineffective and unenforceable “assurances”:

ASSANGE will not be prejudiced by reason of his nationality with respect to which defenses he may seek to raise at trial and at sentencing. Specifically, if extradited, ASSANGE will have the ability to raise and seek to rely upon at trial (which includes any sentencing hearing) the rights and protections given under the First Amendment of the constitution of the United States. A decision as to the applicability of the First Amendment is exclusively within the purview of the US Courts.

The U.S. stated only that Assange could “raise and seek to rely upon” the First Amendment, but refused to say that Assange could rely on the First Amendment. The U.S. maintained that its “assurance” was adequate because judges would take “solemn notice” of it, while admitting that the assurance “cannot bind the courts.”

Even if U.S. prosecutors had provided unequivocal assurances, a U.S. court would not be bound by them because of the constitutional doctrine of separation of powers. The judicial (not the executive) branch of government makes the final decision about the admissibility of evidence.

At the May 20 hearing, Assange’s legal team accepted the U.S. assurance that Assange would not be subject to the death penalty. But defense attorney Edward Fitzgerald KC told the panel that the assurances on the other two issues were “blatantly inadequate” because “there is no guarantee that he will be even permitted to rely on the First Amendment.”

Johnson and Sharp agreed with Assange that the U.S. assurances on the First Amendment and discrimination issues were not satisfactory. The judges also refused to accept the U.S. argument that Assange’s appeal of those two issues should be limited to only 3 of the 18 counts against him. On May 20, they ruled, “We have decided to give leave to appeal on all counts.”

Freedom of Expression Under the European Convention on Human Rights

At a trial in the U.S., Assange would argue that his actions were protected by the First Amendment. “He contends that if he is given First Amendment rights, the prosecution will be stopped. The First Amendment is therefore of central importance to his defence,” the panel concluded in March.

Like Article 10 of the European Convention on Human Rights (ECHR), the First Amendment provides “strong protection” for freedom of expression, the panel noted in its March ruling. Article 10 (1) of the convention says, “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.”

Johnson and Sharp wrote in March that if Assange “is not permitted to rely on the First Amendment, then it is arguable that his extradition would be incompatible with article 10 of the Convention.”

The U.K. Extradition Act Prohibits Discrimination Based on Nationality

Section 81(b) of the U.K. Extradition Act says that extradition is barred for an individual who “might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his … nationality.” Although Assange is an Australian citizen, his legal team argued that he should have the same right as a U.S. citizen to rely on the First Amendment at trial.

The panel noted in March that Prosecutor Gordon Kromberg, assistant U.S. attorney in the Eastern District of Virginia, stated that the prosecution might argue at trial that “foreign nationals are not entitled to protection under the First Amendment, at least as it concerns national defense information.” Professor Paul Grimm of Duke University School of Law, an expert presented by Assange’s defense team, confirmed that there is a line of legal authority that says a foreign national doesn’t have First Amendment rights, at least in relation to national security cases.

Moreover, as Brett Kavanaugh wrote for the majority of the U.S. Supreme Court in the 2020 case of Agency for International Development v. Alliance for Open Society International, “[I]t is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.”

On May 20, the U.S. argued to the panel that the Extradition Act bars only discrimination based on “nationality,” not “citizenship.” The defense said that was a distinction without a difference:

To discriminate on grounds that a person is a foreigner, whether on the basis that they are a foreign national or a foreign citizen, is plainly within the scope of the prohibition. “Prejudice at trial” must include exclusion on grounds of citizenship from fundamental substantive rights that can be asserted at the trial. On the U.S. argument, trial procedures could discriminate on grounds of citizenship.

Defense counsel Mark Summers KC stated, “In addition to being a non-U.S. citizen, Mr. Assange is a non-U.S. national as well. Whatever the distinction may be, and we don’t accept that there is any … it has no bearing whatsoever.”

In their March ruling, the panel concluded that due to the centrality of the First Amendment to Assange’s defense, “If he is not permitted to rely on the First Amendment because of his status as a foreign national, he will thereby be prejudiced (potentially very greatly prejudiced) by reason of his nationality.”

What Will Happen Next

“This was a watershed moment in this very long battle,” WikiLeaks Editor-in-Chief Kristinn Hrafnsson said after the May 20 ruling. “Today marked the beginning of the end of the persecution. The signaling from the courts here in London was clear to the U.S. government: We don’t believe your guarantees, we don’t believe in your assurances.”

Stephen Rohde, who practiced First Amendment law for almost 50 years, concurs. “The ruling by the High Court offers a glimmer of hope not only for Assange and not only for freedom of the press but for a welcome turn away from blind deference to the United States and in its place an insistence that the U.S. itself is not above the law,” he told Truthout.

The two-judge panel ordered the parties to agree by May 24 on a structure for the full hearing on Assange’s two appeal points. That agreement has not been made public. The judges will set the hearing date, probably sometime later this year. At that hearing, the parties will present evidence, call witnesses and file legal briefs with the High Court.

If Assange prevails at the hearing, he would be released from Belmarsh Prison and likely be sent to Australia as he is an Australian citizen. If he does not win the appeal, Assange could request leave to appeal to the U.K. Supreme Court. If that request is denied or an additional appeal fails, he can appeal to the European Court of Human Rights (ECtHR) in Strasbourg and raise his other appellate issues that the High Court rejected.

Assange could seek urgent interim measures and request an order from the ECtHR prohibiting the U.K. from extraditing him until the European Court has ruled on his case. Interim measures are granted upon a showing of “exceptional circumstances” and are generally ordered only in cases involving the right to life or the prohibition on torture or cruel, inhuman or degrading treatment.

ECtHR case law recognizes the vital role that publishing state secrets can play in a democratic society and that criminal prosecution and conviction for such publication will chill the press from playing its role of “public watchdog.” The indictment against Assange criminalizes essential journalistic practices and imposes a disproportionate sentence (175 years) – sometimes called death by incarceration – which amounts to a grave violation of Article 10 of the ECHR.

“A successful prosecution would criminalize a great deal of the investigative journalism that is crucial to our democracy,” Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said in a statement. “The Justice Department should never have charged Assange under the Espionage Act, and it should drop the charges now.”

Joe Biden stated last month that his administration is “considering” whether to dismiss the case against Assange. A week before the May 20 hearing, Hrafnsson said that Assange’s legal team had been pursuing a political resolution which “has been bearing fruit.”

Indeed, Biden should follow the path taken by the Obama-Biden administration, which refrained from indicting Assange out of First Amendment concerns, rather than the strategy pursued by the Trump administration, which exercised no such forbearance when it indicted Assange under the Espionage Act for revealing U.S. war crimes.