During a panel at the Frontline Club, a London-based club for journalists, Jennifer Robinson, famed human rights attorney and longtime member of Assange’s legal team, told the capacity-room crowd, “I will never forget getting off a plane in the United States to read Mike Pompeo’s comments. It was immediately clear to me what they were doing, which was to use these semantics to create a new category for WikiLeaks that would allow them to pursue WikiLeaks in a different way.”

One week after Pompeo’s statements, Attorney General Jeff Sessions announced arresting Assange was a priority. Within the Justice Department, previously dismissed theories of how to do so were revived.

Assange had been granted asylum by the Rafael Correa government. But Correa’s successor, President Lenín Moreno, broke dramatically with Correa and sought to reorient Ecuador within the United States’ sphere of influence. While seeking an International Monetary Fund loan, Moreno revoked Assange’s asylum and allowed UK police to set foot in Ecuador’s sovereign embassy and arrest the political refugee.

Officially, the police were arresting Assange for bail hopping, but later that day the United States unsealed an indictment. Eventually, the United States would bring eighteen charges against the Australian publisher. Seventeen of those counts were brought under the Espionage Act, the law used to prosecute whistleblowers like Daniel Ellsberg, Chelsea Manning, and Daniel Hale. Assange also faces a count of conspiring to violate the Computer Fraud and Abuse Act (whistleblowers Manning and Thomas Drake also were charged under this law).

In 2021, UK district judge Vanessa Baraitser blocked the United States’ extradition request. In doing so, she rejected all of Assange’s press freedom and political expression arguments. However, given Assange’s mental health and likely conditions of confinement, she blocked the extradition as being oppressive.

In UK extradition proceedings, British prosecutors represent the United States. At the United States’ request, they appealed Judge Baraitser’s ruling. Later that year, the UK High Court threw out the ruling. Under the UK system, one needs permission to appeal. The UK Supreme Court, stating there was no arguable point of law, refused Assange permission to appeal. A UK magistrate ordered Assange extradited to the United States, and the home secretary signed an extradition order.

While that may sound like the end of the road, in many ways, it started the appeals process anew. Now Assange’s legal team could file a “cross appeal.” This is an appeal of the original judge’s rulings against Assange’s press freedom and political expression arguments.

Assange again requires permission to appeal. And the February 20–21 full-day hearings before the King’s Bench Division of the High Court were about whether Assange had grounds for appeal. If Assange loses at this stage, the only way for him to avoid prosecution in the United States for his journalism is an intervention by the European Court of Human Rights or a change of heart in Washington. As a result, the media and supporters alike have portrayed this as Assange’s final appeal in the UK.

The Legal Hearing

In last week’s hearings, for the first time since the original extradition hearing, UK courts were forced to confront the press freedom aspects of Assange’s prosecution that have captivated worldwide interest.

At this level of appeal, arguments are going to mostly be highly technical points of law. Such legal esotericisms can often distort or hide the underlying political or human issues at stake. Yet, on the first day of the UK prosecution’s arguments, Clair Dobbin inadvertently made things perfectly clear.

Instead of starting with citations to treaties, domestic statutes, or past cases, Dobbin proclaimed that Assange was not a journalist, and Manning was not a whistleblower.

In Dobbin’s summation, WikiLeaks was a website that solicited and published documents stolen, hacked, or otherwise obtained illegally. The very existence of WikiLeaks, in the prosecution’s eyes, appears to constitute criminal solicitation. Manning, per Dobbin, acted in response to this solicitation of “stolen” classified documents and gave them to WikiLeaks, who published them. Such publishing was beneficial to “hostile foreign states, terrorists, and criminal organizations” Dobbin claimed, noting that Osama bin Laden had read them while in hiding. Of course, nearly everyone following international affairs in 2010 to 2011 probably looked at WikiLeaks. And bin Laden’s computer hard drive also contained Mr Bean sketches, Tom and Jerry cartoons, and viral cat videos.

Much of Dobbin’s arguments about why WikiLeaks were not journalists and Manning was not a whistleblower seemed to rest on the fact that they weren’t supposed to have released and published the information they did. Of course, whistleblowers seldom, if ever, have the consent of those on whom they blow the whistle. And investigative journalism does not seek the permission of the powerful before exposing their crimes.

Dobbin also invoked the government’s “conspiracy to commit computer intrusion” case against Assange. According to the US government, Manning asked Assange to help her crack a password hash. The purpose of this, per the government, was not so Manning could access secret documents she wasn’t privy to. Instead, it was so she could access someone else’s account in an effort to cover her tracks.

There are a number of problems with this theory, including that not even Manning knows to whom she spoke, there’s no evidence that whoever she spoke to even attempted to crack the password, the plot clearly didn’t work, and, according to experts, what the US government accuses Manning and Assange of is technologically impossible. Nonetheless, Dobbin warned the court what would have happened had the plot succeeded: military investigators would have had a more difficult time identifying Manning as the WikiLeaks source. To the prosecution, a world in which Manning was not arrested, tortured, and imprisoned hardly seems horror-invoking.

During his rebuttal of prosecution arguments, defense attorney Mark Summers noted that not once in their two-and-half-hour presentation did the prosecution ever mention what the documents exposed: state criminality and war crimes.

While such exchanges made it clear what the proceedings were truly about, the bulk of the arguments did turn on complicated points of law. The US-UK extradition treaty, like nearly every extradition treaty the UK has signed, prohibits extradition for political offenses. Espionage is considered one of the quintessential examples of a political offense. Assange’s lawyers also argued that exposing state criminality and being prosecuted for it is inherently punishing political expression.

While the treaty undeniably prohibits extradition for political offenses, a 2003 UK extradition statute omits any reference to this part of the treaty. The defense argued the language of the treaty still stands. The prosecution argued that it was not enforceable and that its omission was conscious, quoting a lord who in 1996 opined that the political offenses exception was a product of “Western European and North American liberal ideals” that no longer had relevance in the modern world. One wonders if the prosecution views democracy, due process, or free speech similarly as antiquated Western European and North American liberal ideals.

Assange’s defense also argued that it is an abuse of process to extradite someone for a political offense, raised a number of arguments based on the European Convention on Human Rights, and argued that Assange was unlikely to receive a fair trial. Assange’s lawyers argued that the fact that no journalist was ever indicted under the Espionage Act before him meant that he could not have predicted at the time of his actions that he would have faced criminal sanction. They stressed a statement from a US prosecutor that the United States might argue that as a foreign national, Assange has no First Amendment rights as evidence of the bias he may face in US courts, and argued that under precedents set by the European Court of Human Rights, Manning would be considered a whistleblower and thus Assange could not be prosecuted for publishing her revelations under European human rights law.