British justice takes the politics out of Assange trial on the way to setting him free

Jesus Christ on a 10-speed, Julian Assange held back from US extradition — not on free speech grounds, but because of the inherently torturous nature of the US prison system!

Way to start the publishing year with a bang!

The news came through from London around 11pm yesterday Australian eastern, and in a pretty torturous manner itself — a verbal summary of the magistrate’s own multi-part ruling in which every single ground of the Assange defence was thrown out, save for just about the last: his team’s claim that the regime Assange would be subject to would drive him to suicide. This the magistrate upheld, and it was enough to deny extradition.

That surprised everyone, in court and around the world, since everything leading up to it had been a celebration of the unchecked power of the state and a disdain for journalism. And then with a leap Assange was free(ish).

It must have surprised the hell out of the Americans, who can never quite see why everyone else sees their prison system as hellish.

The crucial part of the judgment against Assange was the magistrate’s rejection of two interlocked contentions: that the US case was a political prosecution which the UK had no right to extradite to, and that the substance of the accusations — 15 counts which attempted to establish that Assange had variously hacked, importuned or assisted with obtaining classified information — was spurious in terms of anything other than a political prosecution.

But the magistrate ruled that the political prosecution ban had been abolished by the UK government in 2003, and that the question of prosecutability of WikiLeaks’ actions was a matter for trial — a trial Assange could be extradited to since the political prosecution objection to extradition was now moot.

The judgment then went into a long consideration of various psychiatric reports of Assange’s mental health, and of the particular conditions of the US prison system “SAM” measures, which subject alleged high-risk prisoners — high risk of fomenting internal mayhem — to nightmarish, inhuman conditions; perpetual total solitary confinement in featureless boxes with rare, sporadic visits, and mail delayed by months.

It has little to do with internal security, and more the ultimate result of combining penitentiary conditions with the notion of the unperson status of America’s enemies.

Taking into account Assange’s psych reports amid the less sadistic but pretty grim UK Belmarsh incarceration — that he was severely depressed, on the autism spectrum, full of suicidal ideation and also possessed of the determination to kill himself if total despair enveloped — the magistrate therefore denied extradition.

Doubtless Judge Vanessa Baraitser ruled solely according to the law, but it has to be said that it’s a verrrrry convenient result for the UK government, facing a storm of criticism from without and within over supporting the Trump administration’s prosecution of a case that effectively criminalises much of investigative journalism (the Obama administration had not pursued a case for that reason).

Not only does the ruling avoid a breach in the Atlantic alliance, but it paints Assange not as a heroic figure, or even a citizen possessed of rights, but as a victim of his psychological afflictions, thereby spared an ordeal that others can be exposed to.

It is an attempt to wholly depoliticise WikiLeaks’ work and avoid the repoliticisation that extradition would ensure.

Assange and his team would have hated including such a defence, but they were right to do so, giving UK justice an escape route from a substantial political dilemma. Or sections of UK justice.

The US will likely appeal the ruling and so it will start a journey up the chain, through the appeals process, towards the point where political and judicial power are close to fused.

But long before the next judgment is due, the Trump administration will have yielded to the Biden administration, (or a joint chiefs of staff emergency triumvirate). Biden has no love for Assange, having called him a “high tech terrorist” in 2010. But he may well take up the Obama line that the effect on “respectable” journalists would be too onerous, and get out that way.

Crucially, the judgment leaves the question of free speech v the state — and especially the US-UK Atlantic state — unanswered. While not criminalising leaks to journalists per se, the US prosecution sets near-impossible conditions for such. If a document flies in on the wind through The New York Times‘ window and lands on someone’s desk, you can publish what’s in it.

But as I understand the US case, almost anything else — urging someone to obtain documents, paying for a cab ride, a thumb drive, etc — contaminates the journalistic enterprise, leaving prosecution possible. It’s a chilling refinement of US state power, especially towards non-US citizens.

One suspects the real target is Assange 2.0, 3.0, those who harvest not 250,000 but 250 million documents, from one of the growing number of small states that now have whistleblower shield laws.

So a result combining US bastardry with British establishment gamesmanship, the special relationship at its most piquant. A lot of downside, with one huge upside: that Assange has slipped the noose and may be out of prison in days.

Heading into the second decade of this whole thing and it just keeps getting stranger and more momentous.

Has the UK made the right decision on Assange? And what should the Australian government do now? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication in Crikey’s Your Say section.