Julian Assange is almost a regular at the British courts. Between February 2011 and May 2012, he challenged his extradition to Sweden three times and up to the Supreme Court in a rape and sexual assault case. Unsuccessful, the founder and thinking head of WikiLeaks found refuge in the Embassy of Ecuador in London. He remained there, in good care and under close surveillance for almost seven years, until a police raid in April 2019.
Since 2010 and the first accusations in Sweden, Julian Assange has been hammering out his first fear: to be extradited to the United States. The latter materialized a few hours after his arrest in April 2019. The United States charged him, first with computer hacking, then with espionage, and asked the United Kingdom for his extradition. Weakened, the Australian will try, in a London court and from Monday, February 24, to defeat it. Eighteen charges have been brought before the American courts: in the event of extradition, Julian Assange risks 175 years behind bars.
Relations between WikiLeaks, a site specializing in the publication of secret documents, and the United States are appalling. On the other side of the Atlantic, many see Julian Assange as a simple pawn manipulated by Moscow during its interference operation in the 2016 American presidential election. The proof has still not been brought, but the investigation by special prosecutor Robert Mueller still showed that the hacked emails published in 2016 by WikiLeaks came from hackers from the Russian intelligence services.
A new wind on the media
But the accusations that hold Julian Assange’s threat of extradition today have nothing to do with the Russian affair. They target what the United States views as the organization's original sin, the publication, in 2010, of hundreds of thousands of confidential documents from the United States.
By associating at the time with some of the most reputable newspapers – the New york times, the Guardian, Der Spiegel or The world -, the slender Australian is blowing a new wind on the media. It precipitates newsrooms into the era of big data and large leaks. His profile as a hacker campaigning for transparency baffles, but his quality as a journalist does not suffer any discussion. Even within the American government: if the latter denounces by all possible means the publication of its secrets and undertakes to put the organization under high surveillance, Julian Assange don't risk to sue WikiLeaks and its founder.
Justice ministry lawyers fail to see how to get around the first amendment to the United States' constitution, which is very protective of freedom of expression and journalists. The Trump administration does not share their prejudices and decides, on May 23, 2019, to mobilize 18 charges against Julian Assange, 17 of whom are the subject of the Spy Act. This extremely harsh text had been dusted by the Obama administration to target the sources of the leaks, but never those who published them.
Justice accuses Julian Assange of not having passively received the documents from his source, Chelsea Manning, then an American army analyst stationed in Iraq. The charge document notably mentions several exchanges between Chelsea Manning and Julian Assange in which the latter seems to guide her so that she extracts as much information as possible from American secure networks.
According to the prosecution, Julian Assange and his source knew that the information recovered was very sensitive and protected by secrecy. The American prosecutor even accuses Mr. Assange of publishing these documents, in particular of having unveiled part of them – the diplomatic exchanges of the American State Department – without filtering on the Internet. Until then, these documents were published drop by drop after the removal of sensitive information, including the identity of some informants.
This is another point that the accusation denounces: for her, WikiLeaks “Has put innocent people in grave danger” who had sent information to the United States in hostile contexts. In support of his demonstration, the prosecutor cites the fact that the WikiLeaks documents were found in the cache of Osama bin Laden after his death. Finally, in addition to espionage, the American justice system accused Julian Assange of hacking for having helped, unsuccessfully, Chelsea Manning to obtain a password which should have enabled the latter to survey the computer networks of the city under a false identity. 'army.
The trial promises to be extraordinary
But before bringing him to a Virginia court, American justice must obtain his extradition from the British authorities. The trial promises to be extraordinary: in addition to the five days of hearing initially scheduled, the judge responsible for examining the case has scheduled three additional weeks in May. “It is extremely long for an extradition hearing. Most last one day and the most complex between 5 and 8 days ”, notes Ben Keith, a British lawyer specializing in these procedures and vice-president of the Defense Extradition Lawyers Forum.
The judge will not rule on the merits of the case but will have to verify that the American accusations are serious and well-founded. In particular, he will have to ensure that the facts alleged against Julian Assange are likely to be subject to legal action in the United Kingdom. “The crime of unauthorized disclosure exists in the UK, and I think it applies to everyone, including journalists” notes Paul Arnell, professor of law at the University of Aberdeen and extradition specialist.
The British prosecution, which represents the United States at the hearing, will face a fierce defense from the team of lawyers surrounding Julian Assange. The latter will undoubtedly try to prove that the American accusations are more political than legal in nature, one of the criteria likely, under British law, to prevent his extradition. Julian Assange’s counsel may also argue that too much time has passed since the alleged offenses. “It is unlikely to work, as this duration is largely due to one's own actions”, namely his stay at the embassy, tempers Paul Arnell.
Right to a fair trial
Assange's team could try to convince the judge that extraditing him would lead to a violation of his human rights, within the meaning of the European Convention on Human Rights, a text which binds the countries of the Council of Europe – bonds for which the recent exit of the United Kingdom from the European Union therefore has no impact.
His lawyers will thus be able to invoke the right to a fair trial to denounce the espionage which Julian Assange was the subject of in the Ecuadorian embassy in London, compromising the secrecy of the exchanges with his lawyers, or the potential duration of his sentence in the States United (175 years). Camp Assange can argue for its quality as a journalist and for its freedom of expression. “I don't have all the details, but I don't think it will work. I think his freedom of expression is better protected by American law than here in the UK “, prediction Ben Keith.
Assange’s lawyers will also be able to rely on his very precarious state of health. British judge to keep everyone in the UK “Whose mental or physical health is such that it would be unjust or tyrannical to extradite him”. For Paul Arnell, “Maybe that is his best argument”. Even if it doesn't work, “This will force the court to ask tough questions in the United States about how it will be treated”, wants to believe Ben Keith. “The UK could ask for guarantees on the treatment of Julian Assange”, confirms Paul Arnell. Guarantees which could bind the American authorities within the meaning of international law.
If they fail to convince the judge, the lawyers could still try to circumscribe the American request: a basic rule, taken up by the American-British treaty of extradition, stipulates that an individual can only be judged for the crimes or offenses which motivated his extradition. “The court could say: we only accept extradition on charges of hacking”, for which the Australian does not incur ” than “ five years in prison, says Paul Arnell. And if the judge still decides on the extradition, the British Home Secretary will be responsible for approving the court decision. While this is unlikely in the case of Julian Assange, he can theoretically object.
This trial at first instance will obviously be only the first step in a long process which could take several years. As he did a few years ago against the Swedish arrest warrant, Julian Assange, in the event of defeat, will presumably appeal and the case can go to the Supreme Court, or even the European Court of Human Rights. the Strasbourg man.