Could Assange really face the death penalty?

Sam Hawley: Supporters of Wikileaks co-founder Julian Assange have always warned he could be locked up for the rest of his life if he ends up in the United States to face charges including espionage. But now judges in London, where the Australian’s in jail, have demanded assurances that if they agree to extradite him to America, the death penalty will be off the table. But could Assange actually face execution in the United States? Today, international law expert from the ANU, Don Rothwell, on the latest court ruling. I’m Sam Hawley on Gadigal land in Sydney. This is ABC News Daily.

News Report: Wikileaks founder Julian Assange has been handed something of a legal lifeline by the High Court in London, where he’s trying to appeal his extradition to the United States.

News Report: This means that he won’t be immediately extradited to face those 18 criminal charges for publishing hundreds and thousands of documents which exposed war crimes by US forces in Iraq and Afghanistan.

Stella Assange, Julian Assange’s wife: Today’s decision is astounding. The courts recognise that Julian is exposed to a flagrant denial of his freedom of expression rights and that he remains exposed to the death penalty.

Sam Hawley: Don, let’s first put this decision by the British High Court into context because Julian Assange’s legal battles began a long time ago in 2010, so 14 years ago. This has been going on for a really long time, hasn’t it?

Professor Donald Rothwell: It has, and it’s somewhat remarkable to reflect on that. But of course the legal battles have gone through multiple different phases involving multiple different legal issues, but I guess at the core of them they’ve been associated with extradition. First of all, the extradition request from Sweden under a European arrest warrant, and then more recently, the extradition request from the United States.

Sam Hawley: Of course, he’s been in jail in London since 2019, since he was dragged out of the Ecuadorian embassy where he spent seven years. Now, in 2022, British courts ruled that he could be extradited to the US, but his legal team has been fighting that.

Professor Donald Rothwell: Yes, that’s right. So, as you say, when he was removed from the Ecuadorian embassy, he then faced a US arrest warrant, and then we got to a point, as you say, in 2022 when the extradition request was upheld in the UK courts, and since then Mr. Assange and his legal team have been seeking to explore other avenues for appeal before the United Kingdom courts. And the most recent decision, importantly, deals with Assange’s application for leave to appeal, and if ultimately that’s endorsed and approved, he would be able to present further legal argument to the High Court in the United Kingdom.

Sam Hawley: So that’s what the judges in the High Court have been considering, and they’ve brought down this ruling, which was pretty unexpected and I think took a little while for people to really understand, but what have they asked for, the judges, at this point?

Professor Donald Rothwell: Well, I think most importantly, Assange’s request for appeal was founded on nine legal issues. Now, of those nine legal grounds, six of them have been dismissed as having no foundation. They have been knocked out now at this phase. Three remain for determination, and one of the critical issues associated with the three remaining grounds is whether or not the United States Government is able to provide satisfactory assurances to the court on certain issues that the court has identified for consideration.

Sam Hawley: And they are that Julian Assange won’t face the death penalty if he’s sent off to the United States and that he will be given constitutional protections -and, that is, US constitutional protections.

Professor Donald Rothwell: That’s right. And so in terms of the death penalty matter, it’s not exceptional that this type of assurance is sought from countries who are extraditing persons to the United States who don’t have the death penalty. The United Kingdom is one of those, and indeed, Australia is one of those. So that, to my mind, is not necessarily exceptional. The second matter is the perhaps more interesting one in the sense that Assange’s legal team have long argued that the charges that are against him raise some fundamental issues in terms of constitutional rights that exist under the US Constitution, the most significant, of course, of which is the freedom of expression and that flows through to the freedom of the press. And so an issue has been raised as to whether or not Assange, for the purposes of US law, he’s considered an alien, in other words, a non-national. We know that he’s an Australian citizen. If Assange was to get before a US court, whether he would be able to rely upon those constitutional arguments, not as a US citizen, but as a person appearing before a US court. That’s another area in which the UK court has sought assurances from the United States in terms of what might arise for Assange if he was to eventually appear before a US court.

Sam Hawley: But does this call for constitutional protection, that is that he would be covered by the First Amendment which protects freedom of speech in the United States, does that signal that the judges in the United Kingdom agree with his defence lawyers that he is a journalist in right of protection, of free speech protection?

Professor Donald Rothwell: I think one needs to be cautious about reading that into this decision. So they are recognising that, yes, there is actually an important legal issue here that’s been raised by the Assange legal team. However, as we’re also saying, they’re indicating, well, we actually might be prepared to accept that if the United States gives assurances that Mr Assange would be entitled to these rights before a US court, well, then we might be prepared to allow extradition to proceed.

Sam Hawley: And of course the US has in the past argued that he’s not entitled to that protection because he’s an Australian citizen, not an American one. So he’s not protected under the US Constitution.

Professor Donald Rothwell: Yes, and that’s a contentious legal issue. So I can entirely see why the UK judges have seized upon that issue at this stage of the proceedings.

Sam Hawley: Just back on that issue of the death penalty, Assange’s legal team, including his Australian lawyer, Jennifer Robinson, seem to think that assurances over the death penalty would be way too late.

Jennifer Robinson, Julian Assange’s lawyer : We say there’s no such satisfactory assurance. Amnesty International says that US diplomatic assurances are not worth the paper they’re written on. In a case as serious as this, involving the death penalty and involving free speech protections for all journalists everywhere, this is clearly insufficient.

Sam Hawley: Just to be clear, was the death penalty ever on the table? He’s facing Julian Assange charges of hacking and espionage charges. So they’re really serious charges. But was the death penalty ever a prospect in his case?

Professor Donald Rothwell: That’s not my understanding. And it’s important to note that an aspect of extradition law, and indeed this is briefly referred to in the judgment, is what’s called the rule of speciality. And quite simply, that means that if someone is extradited on the basis of a charge concerning X, they can’t suddenly be extradited and appear before the court and have the charge upgraded to Y. And so that’s relevant in the context of the espionage charges against Assange, and at the moment there’s no indication that the death penalty would be sought.

Sam Hawley: But better to have it off the table, I would think. OK, so tell me, Don, if the London court gets the assurances that the judges have asked for from the United States, what happens next?

Professor Donald Rothwell: Well, at face value, if the court is satisfied with those assurances, Assange’s appeal is dismissed. So that clears the way for his extradition from the United Kingdom to the United States. We know that the Assange legal team was flagging that if this was to occur, that they would be seeking to immediately commence proceedings before the European Court of Human Rights. They would then seek an immediate injunction to halt Assange’s extradition whilst he is able to explore and exhaust his possible remedies before the European Court of Human Rights.

Sam Hawley: And it does seem rather unclear whether or not an appeal in that court would actually stop him being put on a plane immediately when he next appears in court on May 20.

Professor Donald Rothwell: That’s true, though Assange’s legal team has had quite a bit of notice about the potential for this to occur. So no doubt they have all of the papers ready to be filed.

Sam Hawley: And, of course, Don, there have been reports of a potential plea deal that was reported in the Wall Street Journal. What’s that about?

Professor Donald Rothwell: Yeah, look, this is a really interesting development. The Wall Street Journal report is somehow suggesting that it might be possible for Assange to enter into a plea deal whilst he’s still in London, in other words, effectively an extraterritorial plea deal, which could result in a significant downgrading of his charges. And if that was to occur, well, then some allowance would be made for the five years that he’s been held on remand in the United Kingdom awaiting the outcome of these extradition proceedings.

Sam Hawley: Of course, his lawyers say if he’s found guilty in the United States, he could face up to 175 years in jail, and his lawyers have pointed out that they’ve had no discussions about any plea deal at this point. Now, Andrew Wilkie, the independent MP, he thinks that the ruling from the UK really does give the time to negotiate a deal with the United States.

Andrew Wilkie, Australian independent MP: I actually think the best news is it gives Julian’s legal team, and Julian personally, of course, a three-week window to try and cut a deal with the US Department of Justice. Now, of course, it is up to Julian to decide what’s in his best interest and what he wants to do, but I reckon I speak for a lot of people when I say it would be great to see him cut a deal and walk free.

Professor Donald Rothwell: Look, I take two views on that matter. The first is that time in this case is Assange’s friend. The more time he spends in the United Kingdom as these legal processes work their way through allows for these diplomatic manoeuvres to play out which might bring about some satisfactory offer that’s put on the table. However, the one sticking point that I see in all of this is that if a plea deal is put on the table, Julian Assange will have to agree to that plea deal, and that plea deal will see him agreeing to admit guilt. And at no stage at all in any of these extensive legal processes that we’ve been discussing has Julian Assange ever admitted guilt to anything. And so that would be a very significant, I would say even remarkable concession given what we know about Julian Assange and the way in which he has consistently fought and contested every single legal challenge that’s been brought against him in terms of all of the matters associated with WikiLeaks.

Sam Hawley: So in your view, Don, what will the US do here, do you think? Will it give these assurances to the judges in the UK? And ultimately, if it does, and that means that Julian Assange, of course, can’t appeal any further in the United Kingdom at least, does it mean that it’s really game over for Julian Assange, that he will be heading to the United States?

Professor Donald Rothwell: Look, I’d be really surprised if the United States didn’t give these assurances. That does not mean, however, that the Assange legal team might seek to challenge the legitimacy of the assurances. So there may well be another legal dice to be rolled here. But yes, if all of that falls over for Assange, if the United States gives the assurances, as I expect, then that will certainly pave the way for extradition to the United States.

Sam Hawley: Donald Rothwell is a Professor of International Law at the ANU College of Law in Canberra. This episode was produced by Bridget Fitzgerald and Nell Whitehead. Audio production by Anna John. Our supervising producer is David Coady. I’m Sam Hawley. To get in touch with the team, please email us on [email protected]. Thanks for listening.