WHISPeR welcomes the UK High Court ruling delaying Julian Assange’s potential extradition to the United States. However, we regret that the Court declined to properly consider the political nature of this prosecution under what is a textbook case of a political crime, and continues to take a blinkered approach on the remaining questions it has left open for the May 20th hearing. We again strongly urge the High Court to apply the greatest possible skepticism of U.S. assurances. The U.S. government has certainly not earned a presumption of credibility on these issues.
As attorneys who have represented several defendants under Espionage charges in media leak cases, we can speak to these issues from direct experience. Our clients have been denied both the right to present a First Amendment defense and the supposedly humane prison conditions promised by the Department of Justice.
The U.S. government simply cannot make any meaningful assurance that any defendant can rely on First Amendment protections under an Espionage Act prosecution, much less a foreign citizen. The legal question is at best unresolved by U.S. courts, and the precedent is ominous. The Pentagon Papers case, the fullest test of the Espionage Act against the First Amendment to date, resulted in a Supreme Court opinion that pointedly left open the possibility that the U.S. government could punish the publication of government documents. Any assurance that Assange would be allowed to mount a meaningful First Amendment defense would be diametrically opposed to the U.S. Justice Department’s own position in previous media leak cases: that the Espionage Act does not allow a jury to even consider a First Amendment defense. In Thomas Drake’s case, the government sought to ban the use of words like “whistleblowing” in front of a jury. In prosecuting Daniel Hale, the government argued that his appeals to the First Amendment were merely “academic musings,” and “interesting thought exercises, but irrelevant to the case at hand”.
We again urge the Biden administration to drop this prosecution and spare us all the empty assurances, the tortured rationale, and the obvious hypocrisy on press freedom.