London: It was a plot twist that few saw coming.
As UK District Judge Vanessa Baraitser began handing down her long-awaited extradition ruling it became apparent that she had accepted all of the US government's arguments that Assange should be extradited to the United States to face multiple charges relating to WikiLeaks' publications of diplomatic and secret cables.
While Julian Assange's supporters have painted his prosecution as the persecution of a free press, lawyers for the US government took this head-on during the hearing in September and October, stressing that they were not pursuing any journalist who had published information stemming from the cables.
A courtroom sketch of Julian Assange appearing at the Old Bailey in London on Monday.Credit:Elizabeth Cook/PA
Rather, what they argued, persuasively as it turned out, was that Assange went beyond normal journalistic behaviour when he encouraged Chelsea Manning to hack into US government systems to extract the files.
A key plank of the US government's case rested on the fact that traditional media outlets that had been collaborating with Assange cut him loose when WikiLeaks dumped the unredacted cache online, condemning the dangers this posed to many people around the world in diplomatically sensitive roles.
It swayed Baraitser, who also agreed that Assange would receive a fair trial in the United States, were he to be extradited, and that doing so would not violate his human rights.
She threw out claims of a sensational plot to bug Assange's rooms at the embassy, ordered by the Trump administration and carried out by a Spanish security firm because they are the subject of legal proceedings in Spain.
It looked as though Assange's case had completely collapsed. But then came the unforeseen plot twist.
Baraitser agreed with the case put forward by Assange's lawyers that conditions in US supermax prisons, where Assange would likely be held if he were to face trial in the United States, could drive him to attempt suicide and that he would be successful.
She said that she could not order his extradition on these sole grounds. Assange's fiancee Stella Moris wept and said outside the court that she'd had to rewrite her speech to the media.
The win is a personal reprieve for Assange who faces yet more legal battles in the saga that has stretched for more than a decade. But for those who saw the case as totemic for press freedom, the ruling is cold comfort.
Stella Moris wept as she addressed the media outside the Old Bailey. Credit:Getty Images Europe
Nick Vamos, former Head of Special Crime and Head of Extradition at the Crown Prosecution Service and now at the law firm Peter & Peters, told this masthead that the ruling was not a complete surprise.
"The judge has barred Mr Assange’s extradition solely because of the risk that he would commit suicide if detained in the US," he said.
"The decision is fact-specific and based on established legal principles. The judge rejected all of the arguments about political motivation, journalistic protections and freedom of speech, so those who see Mr Assange’s prosecution as an affront to democratic values or a US political vendetta can take no comfort."
The US Department of Justice said it would "continue to seek Mr Assange's extradition to the United States." The department expressed disappointment with the "ultimate decision" but said it was gratified that they had won on every point of law raised.
It will appeal the refusal to extradite.
Appeals to the High Court are not guaranteed but in this case is likely to be granted, during which, Vamos says his lawyers will have the chance to cross-appeal all the arguments they lost.
For the US government, the appeal is an opportunity to provide assurances guaranteeing the safe treatment of Assange in prison.
"For example, it could agree not to detain him in a particular prison or under certain conditions or to beef up his health care or suicide monitoring," Vamos said.
"However, the US authorities traditionally are very resistant to accepting conditions from foreign courts on how they should treat suspects, so it will be very interesting to see whether they offer anything new or different relating to Mr Assange’s likely place or conditions of detention."
An appeal could run for between two to three months, during which Assange is likely to remain in custody at Belmarsh prison given his record.
In 2012, he skipped bail and sought political asylum in Ecuador's embassy for nearly seven years to avoid being extradited to Sweden to face sexual assault allegations. The Swedish authorities dropped the case in November 2019.
And Vamos says Assange's case could also go to the Supreme Court as the Swedish extradition proceedings did.
"There is very little prospect of the US dropping the charges, even under the incoming Biden administration, and Mr Assange could still be arrested and extradited if he travelled abroad."
Freedom might be one step closer for Assange but it remains beyond his grasp.
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