Assange Extradition Fails, but neither on Human Rights nor Journalism Grounds

By Ravi Nayyar

Folks, having followed the Assange case for a few years now, I had a good read of Judge Baraitser’s reasons for Her Honour’s discharge of Julian.

I have extracted relevant bits of Her Honour’s judgement on my personal Twitter account for your convenience.

TL:DR = The extradition failed on health grounds, that is, because of the meeting of the test under section 91 of the Extradition Act 2003 (UK). Section 91 is engaged to bar extradition if subsection 91(2) is engaged, namely if:

the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.

As Judge Baraitser writes in Her Honour’s reasons:

[362]: I am satisfied that in these harsh conditions, Mr. Assange’s mental health would deteriorate causing him to commit suicide with the ‘single minded determination’ of his autism spectrum disorder.

[363]: I find that the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America.

But the extradition did not fail because of issues under the European Convention on Human Rights arts 6, 7, 10.

I also feel vindicated that Her Honour and I are on the same page regarding whether Assange was acting as a journalist in respect of his alleged conduct (ie he wasn’t). For instance:

[99]: As part of his assistance to Ms. Manning, he agreed to use the rainbow tools [to crack Microsoft password hashes]… [This conduct] most obviously demonstrates Mr. Assange’s complicity in Ms. Manning’s theft of the information, and separates his activity from that of the ordinary investigative journalist.

[102]: If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism.

[131]: The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech… Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice… In the modern era, where ‘dumps’ of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of ‘responsible journalism’ can sensibly be applied.

[132]: To illustrate this point, in stark contrast to Mr. Assange’s final, indiscriminate disclosure of all of the data, newspapers who had worked with him from both sides of the Atlantic condemned his decision. These traditional news media outlets contrasted their own careful editorial decisions not to publish these names [of informants], with what they describe as a ‘data dump’ carried out by Mr. Assange.

The Yanks have said that they will appeal. They correctly note that Her Honour did not take issue with any of their legal arguments to extradite.

Could they win an appeal by making a few adjustments to the promised manner of Assange’s prison conditions, should he be extradited, so as to remove the issue under subsection 91(2) of the Extradition Act 2003 (UK)?

Food for thought.