As UK Judge Denies Julian Assange Bail, It’s Time for Joe Biden to Drop the US Extradition Request
January 6, 2021
On Monday, at the Central Criminal Court (the Old Bailey), Judge Baraitser refused to allow the extradition to proceed, ruling that his life would be at risk in a US supermax prison.
Judge Baraitser accepted expert testimony and evidence, given during his extradition hearings in September and October, that Assange has Asperger’s Syndrome and has expressed suicidal ideations, and that the US authorities would be unable to prevent him from committing suicide in a supermax prison, a decision with precedents in the cases of Gary McKinnon and Lauri Love, whose extradition was also prevented by British judges.
Assange must now await a possible appeal against Monday’s ruling, with Judge Baraitser recognizing the US government’s right to do so when she stated today that, “As a matter of fairness, the US must be allowed to challenge my decision.”
She also suggested that Assange “still has an incentive to abscond from these, as yet unresolved, proceedings,” adding that he “had already demonstrated a willingness to flout” the orders of the court — a reference to when, as the Guardian described it, “he absconded eight years ago to enter the Ecuadorian embassy.” However, as his lawyers explained in court, the circumstances then were “totally different” and, as the Guardian put it, “he now had the opportunity to be reunited in the UK with his partner and two young children,” and “would live at their address and wear an ankle tag.”
On Monday, when she refused to allow the extradition, Judge Baraitser, nevertheless, pointedly refused to accept any of Assange’s defence team’s arguments about how Assange, as a journalist and publisher, should not be prosecuted for releasing leaked classified US government information, whose publication was in the public interest, or, indeed, that the extradition treaty must not be used for political purposes.
However, it is not known whether the US will actually appeal, despite prosecutors having bullishly asserted that they would do so after Judge Baraitser delivered her ruling on Monday. As the Guardian reported yesterday, Zachary Terwilliger, the US prosecutor appointed to Assange’s case by Donald Trump, said, “as it was announced that he was stepping down as the US attorney for the Eastern District of Virginia,” that he was “uncertain if Joe Biden’s incoming White House administration will continue to seek [his] extradition.”
Terwilliger told NPR, “It will be very interesting to see what happens with this case. There’ll be some decisions to be made. Some of this does come down to resources and where you’re going to focus your energies.”
Carl Tobias, a law professor at the University of Richmond, Virginia, told the Guardian that he thought it “likely” that the US Justice Department would “file an appeal before the president leaves office on 20 January and attempt to refute the judge’s views on the US prison system,” although that position could — and should — be dropped by the incoming Biden administration.
Tobias added, “The major decisions will fall to Biden and the new administration, namely his attorney general and US attorney for the Eastern District of Virginia, where Assange was charged and would be tried, and those officials may not be confirmed for several months.” As the Guardian described it, Assange’s case would be “one of the first major issues that Biden and the new DoJ leadership were likely to face and assumed symbolic and actual importance.”
As Tobias put it, “My sense is that Biden and his team will not allow the issue to be decided by attrition but will want to seriously consider all of the relevant issues and make the best possible decision.”
That “best possible decision” ought to include revisiting the Obama administration’s position on Assange, described by Glenn Greenwald in the title of an article for the Intercept in November 2018, as follows: “As the Obama DOJ Concluded, Prosecution of Julian Assange for Publishing Documents Poses Grave Threats to Press Freedom.”
Noting how, at the time, “actual and real threats to press freedoms that began with the Obama DOJ and have escalated with the Trump DOJ — such as aggressive attempts to unearth and prosecute sources — have gone largely ignored if not applauded,” Greenwald stated, however, that “prosecuting Assange and/or WikiLeaks for publishing classified documents would be in an entirely different universe of press freedom threats.”
As Greenwald proceeded to explain:
Reporting on the secret acts of government officials or powerful financial actors — including by publishing documents taken without authorization — is at the core of investigative journalism. From the Pentagon Papers to the Panama Papers to the Snowden disclosures to publication of Trump’s tax returns to the Iraq and Afghanistan war logs, some of the most important journalism over the last several decades has occurred because it is legal and constitutional to publish secret documents even if the sources of those documents obtained them through illicit or even illegal means.
The Obama DOJ — despite launching notoriously aggressive attacks on press freedoms — recognized this critical principle when it came to WikiLeaks. It spent years exploring whether it could criminally charge Assange and WikiLeaks for publishing classified information. It ultimately decided it would not do so, and could not do so, consistent with the press freedom guarantee of the First Amendment. After all, the Obama DOJ concluded, such a prosecution would pose a severe threat to press freedom because there would be no way to prosecute Assange for publishing classified documents without also prosecuting the New York Times, the Washington Post, the Guardian and others for doing exactly the same thing.
Under Trump, the case against Assange has increasingly focused on hacking rather than publishing, and this aspect of the case was noticeably remarked upon by Judge Baraitser on Monday, but the rather more salient truth is that it is a cover for what remains a fundamental assault on press freedoms of exactly the kind that caused the Obama administration to blanch and then to turn away.
Joe Biden should — indeed, must — reach the same conclusion, and, as a result, drop the extradition case against Julian Assange.
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Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or here for the US, or you can watch it online here, via the production company Spectacle, for £2.55), and for his photo project ‘The State of London’ he publishes a photo a day from eight years of bike rides around the 120 postcodes of the capital.In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.
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