B Explanatory memorandum
by Ms Thórhildur Sunna Ævarsdóttir, rapporteur
1 Introduction
1. The present report is based
on a motion for a resolution tabled on 23 May 2023
Note and referred to the committee on
Legal Affairs and Human Rights (the Committee) for report on 9 October
2023. The committee appointed me as rapporteur at its meeting on
23 January 2024.
2. The motion for a resolution recalls the Assembly’s
resolutions 2317 (2020) on “Threats to media freedom and journalists' security
in Europe” and 2454 (2022) on “The control of online communication:
a threat to media pluralism, freedom of information and human dignity”,
which recognised that the criminal prosecution and detention of
Julian Assange set a dangerous precedent for journalists; called
for his extradition to the United States to be barred; and demanded
his prompt release. The motion for a resolution states that Mr Assange's harsh
treatment risks deterring others who wish to report truthful information
about armed conflicts, as the WikiLeaks publications did. The motion
calls on the Assembly to consider whether the circumstances of Mr Assange´s
detention fulfilled the criteria set out in
Resolution 1900 (2012) “The definition of political prisoner”. Furthermore,
the Assembly should examine Mr Assange’s case in the context of
the growing threat against media freedom and retaliation against
whistle-blowers throughout Europe.
3. On 20 February 2020
Note and on 19 May 2022,
Note the then Council of Europe Commissioner
for Human Rights, Ms Dunja Mijatović, has called upon the United
Kingdom to refrain from extraditing Julian Assange based on concerns
that it could have a global chilling effect on the media. The Assembly's
then General Rapporteur on the protection of whistle-blowers, Mr Pieter
Omtzigt, published two statements in support of Julian Assange on
28 September 2021
Note and on 25 January 2022.
Note
4. While preparing the report, I conducted a fact-finding visit
to the United Kingdom on 13-14 May 2024. I had the opportunity to
visit Julian Assange in Belmarsh prison and talk to him in private
for two hours. I was also able to meet Ms Stella Assange, Mr Assange's
spouse, Ms Gareth Peirce, his solicitor, Mr David Morris (United
Kingdom, EC/DA), and Mr Jeremy Corbyn (United Kingdom, SOC) respectively
chairperson and member of the delegation of the United Kingdom to
the Parliamentary Assembly, the former chairperson of the United
Nations (UN) Working Group on Arbitrary Detention, Professor Mads
Andenæs KC, the former UN Special Rapporteur on counter-terrorism
and human rights, Professor Fionnuala Ní Aoláin KC, as well as other lawyers,
journalists, psychiatrists, human rights defenders, and civil society
representatives involved in Mr Assange's case. Regrettably, no representative
of the UK Home Office was available to answer my request for a meeting.
I am grateful to the United Kingdom's delegation to the Assembly
and its secretariat for the excellent organisation of this visit.
5. Unfortunately, despite my request directed to the Permanent
Observer of the United States of America to the Council of Europe,
I received no reply regarding a possible meeting with a representative
of the US Embassy in London.
6. At its meeting in Strasbourg on 25 June 2024 – coincidentally
falling on the next day after Mr Assange’s release from Belmarsh
– the committee held a hearing with the participation of Professor
Fionnuala Ní Aoláin and Ms Rebecca Vincent, Director of Campaigns
for Reporters without Borders, and Mr Simon Crowther, legal advisor
at Amnesty International.
7. In this report, I will start by describing the factual background
of Mr Assange's and WikiLeaks’ publications, his prosecution, detention,
extradition proceedings, and, ultimately, his conviction. I will
then refer to the legal framework applicable to the case at hand.
Finally, I will present my conclusions, hoping that this report
will contribute to preventing any other publisher from experiencing
the same ordeal that Mr Assange went through over the last 14 years.
2 Julian Assange and WikiLeaks – background
and major publications
8. WikiLeaks was founded in 2006
by the Australian programmer and activist Julian Assange. According to
its website, it is a multi-national media organisation and associated
library. It has specialised in the analysis and publication of large
datasets of censored or otherwise restricted official materials
involving war, spying, and corruption. It has published more than
10 million documents and associated analyses so far.
Note
9. One of WikiLeaks's most impactful publications was its 2010
documentary video “Collateral Murder”. It showed a leaked recording
from 12 July 2007, made from a US Apache helicopter over Baghdad.
The recording also included real-time radio exchanges between the
helicopter's crew and their commanders. The crew reported seeing
about twenty men, identifying “five to six individuals with AK-47s”
and requesting permission to open fire. Shortly after that, the
helicopter was authorised to engage the group. Following several volleys,
all men on the ground were either killed or seriously wounded. The
attacking soldiers can be heard commenting “Oh yeah, look at those
dead bastards”, “Nice” and “Good shot”. One of the wounded men appears
to be trying to crawl back to safety. A crew member can be heard
saying: “Come on, buddy” and “All you gotta do is pick up a weapon”,
in an apparent attempt to find justification to open fire on that
person. It will be later revealed that the wounded man was Saeed
Chmagh – a Reuters reporter who was on the ground with a colleague
– Namir Noor-Eldeen (killed by the initial volley). Shortly after
that, a minibus arrived at the scene, and two unarmed men tried
to carry Mr Chmagh on board in an apparent rescue attempt. The helicopter
crew was authorised to fire on the vehicle, despite the fact that
no weapons were noticed. The two men and Mr Chmagh were killed instantly.
Unbeknownst to the Apache crew, inside the minibus were two children
– a five-year-old girl and a ten-year-old boy. Both were severely
wounded. When American infantry reached the scene, they reported
a seriously wounded child over the radio. After a moment of silence,
a helicopter crew member can be heard commenting “Well, it's their
fault for bringing their kids into a battle”. An official report prepared
by the US Army would later state that soldiers recovered an AK-47
machine gun, a rocket-propelled grenade launcher with two grenades
and the cameras of the two killed journalists. The two children
survived their injuries, having been evacuated to an American Combat
Support Hospital and then transferred to an Iraqi medical facility.
10. On 25 July 2007 (two weeks after the shooting), the director
of Reuters' Baghdad office was shown a fragment of the recording
by the US Army, ending right before the helicopter had opened fire
the first time. Reuters' subsequent attempts to obtain the full
version of the recording under the Freedom of Information Act were
unsuccessful. The military's account asserted that the two journalists
were among nine insurgents killed in the engagement and described
the incident as part of combat operations against a hostile force.
Note This account was proven to be misleading
following the release of “Collateral Murder”. The footage showed
that the journalists were not engaged in combat and were instead
targeted by the Apache helicopter, which mistook their cameras for
weapons.
11. The full, unedited recording was disclosed to WikiLeaks by
a whistle-blower, Private First Class Chelsea Manning – a US Army
intelligence analyst. She was also responsible for leaking a video
of the Granai airstrike – a bombing conducted by a US Air Force
B-1 bomber on 4 May 2009, in which (according to various sources) between
86 to 147 Afghan civilians were killed. Other materials leaked by
Ms Manning included over 260 000 classified diplomatic US cables
and over 400 000 battlefield reports from Iraq and Afghanistan.
12. “Collateral Murder” was presented by Julian Assange on 5 April
2010 at the National Press Club in Washington. WikiLeaks described
the “Collateral Murder” video as depicting the killing of Iraqi
civilians by US forces and stated that the US military's rules of
engagement were flawed. In an interview, Mr Assange called the initial
attack on the group a “collateral exaggeration or incompetence”
but stated that the deliberate targeting of a wounded Reuters reporter
was a “murder”,
Note in an apparent reference to killing
a person
hors de combat –
a breach of one of the most fundamental principles of international
humanitarian law, applicable in both international and non-international
armed conflicts.
13. The so-called Afghan War Diary was published on 25 July 2010
and consists of 91 731 documents dated between January 2004 and
December 2009.
Note Before its publication, WikiLeaks
gave access to the documents, most of which were classified as “secret”,
to the New York Times, the Guardian, and Der Spiegel without disclosing
their source. These newspapers agreed that the public interest warranted
the publication of secret materials but nevertheless decided to
withhold the names of operatives in the field and informants cited in
the reports or anything else that could have compromised American
or allied intelligence-gathering methods, such as communications
intercepts.
Note The documents contained in the Afghan
War Diary revealed,
inter alia, that
the US withheld evidence that the Taliban had acquired deadly surface-to-air
missiles; and documented that at least 195 civilians had been killed
and 174 wounded by the coalition forces, what was previously not reported
to the public.
Note
14. One of the key revelations of the Afghan War Diary was the
existence of a secret Task Force 373. It was an international covert
military unit conducting “kill or capture” operations without trial,
against the Taliban leaders. The logs reveal that Task Force 373
was involved in extrajudicial killings, responsible for the deaths of
civilian men, women, and children, and even Afghan police officers
who strayed into its path.
Note
15. On 22 October 2010, WikiLeaks published the Iraq War Logs
– a collection of 391 832 battlefield reports prepared by the US
Army – the largest leak of classified documents in US history.
Note These logs begin on 1 January 2004
and end on 31 December 2009. According to the published documents,
109 032 people died during that period – soldiers, insurgents, and
civilians. According to Iraq Body Count – an NGO recording civilian
deaths in Iraq – 15 000 unrecorded civilian deaths would have to
be added to the public record based on what was contained in the
Iraq War Logs. As was the case with the Afghan War Diary, several
media outlets took part in reviewing the documents. The disclosed
documents showed that US forces acquiesced to torture and other
forms of ill-treatment by Iraqi security forces and that American
soldiers were often involved in the killing of innocent civilians
at road checkpoints.
Note According to leaked reports, more
than 30 000 civilian deaths were caused by improvised explosive
devices planted by other Iraqis.
Note Another leaked file revealed how
a US Apache helicopter was instructed to engage surrendering insurgents.
The message from the command post was that “Lawyer stated they cannot
surrender to aircraft”.
Note
16. On 28 November 2010, the first batch of 220 leaked classified
US diplomatic cables was published by El País, Der Spiegel, Le Monde,
The Guardian and The New York Times. WikiLeaks worked with these
media organisations to carefully select and redact the cables before
publication to protect sensitive sources and information.
17. In February 2011, two journalists from the Guardian published
a book entitled “WikiLeaks: Inside Julian Assange's War on Secrecy”.
The book contained a password to the archive of cables, which the
authors believed was temporary and no longer active. Unbeknown to
them, the file containing unredacted cables with the same password
was published on BitTorrent (apparently by individuals associated
with WikiLeaks to create an “insurance policy” should anything happen
to the portal), a website typically used to distribute pirated films and
music.
Note Some users could piece the information
together and gain access to the entire repository of unredacted
cables, which soon became public.
Note
18. Faced with this situation, in September 2011, WikiLeaks published
the full, unredacted archive of cables on its website, making them
easily searchable. The decision was strongly criticised by its previous
media partners, who condemned the “needless publication of the complete
data” as it could put many human rights activists and US informants
at risk.
Note
19. Chelsea Manning was arrested in May 2010 and charged with
multiple crimes, including aiding the enemy and espionage. Following
her partial guilty plea, she was court-martialled and convicted
of multiple espionage counts, five theft charges, two computer fraud
charges, and multiple military infractions. Importantly though,
Ms Manning was acquitted of the most serious charge of “aiding the
enemy” (an offence punishable with death) – something that journalists
feared would affect future whistle-blowers.
Note She was sentenced to 35 years' imprisonment.
During Ms Manning's sentencing hearing, Brigadier General Robert
Carr, who headed the Information Review Task Force that investigated
the impact of WikiLeaks disclosures on behalf of the Defence Department,
testified that they had uncovered no specific examples of anyone
who had lost their life in reprisals that followed the publication
of the disclosures on the internet.
Note In May 2017, President Obama commuted
Ms Manning's sentence, resulting in her release from prison.
20. Although these publications did provide serious evidence of
possible war crimes and gross human rights violations, publicly
available information does not indicate that anyone has ever been
prosecuted in relation to these allegations. Instead, the legal
focus has been shifted to Julian Assange (the publisher) and Chelsea Manning
(the whistle-blower). Ms Manning remains the only member of the
US Army to have ever been charged with a crime in relation to the
events portrayed in “Collateral Murder”.
3 Other
notable publications of WikiLeaks
3.1 Vault
7
21. In 2017, WikiLeaks released
a series of documents called “Vault 7” detailing the CIA's hacking capabilities.
The leaks revealed that the CIA could exploit vulnerabilities in
devices such as cars, smartphones, PCs, or even smart TVs, which
could be used to listen to conversations even when the device appeared
to be off. The documents also exposed the CIA's ability to exploit
“zero-day” vulnerabilities in software products, raising concerns
about the extent of the agency's cyber capabilities and the potential
risks to privacy and public security. The CIA faced criticism for
stockpiling vulnerabilities to exploit them rather than working
with software manufacturers to remove them. Given that the CIA was
able to identify these vulnerabilities, it is safe to assume that
other bodies (including rogue actors) were able to do so as well,
potentially exposing thousands of users to abuse.
22. The Vault 7 publications were regarded as a blow to the intelligence
community’s capabilities and led the CIA to define WikiLeaks as
a “non-state hostile intelligence service”.
Note In February 2024, a former CIA software
engineer was sentenced to 40 years' imprisonment for leaking the
Vault 7 materials to WikiLeaks.
3.2 Guantanamo
Detainee Assessment Briefs
23. In 2011, WikiLeaks, together
with the Guardian, NPR, the Washington Post, the New York Times
and other media outlets, published over 700 memoranda from the Joint
Task Force at Guantánamo Bay to US Southern Command in Miami, Florida.
These documents provided detailed information about the detainees held
at the Guantanamo Bay detention camp from 2002 to 2008.
24. One such detainee was Sami al-Hajj – a Sudanese cameraman
who, at the time of his arrest in Pakistan in 2001, was working
for Al-Jazeera. He was held in Guantánamo for over six years before
being released in 2008 without any charges. According to his detainee
assessment brief, his detention in Guantánamo was deemed necessary
“[t]o provide information on... the Al-Jazeera News Network's training
program, telecommunications equipment, and newsgathering operations
in Chechnya, Kosovo, and Afghanistan, including the network's acquisition
of a video of UBL [Usama Bin Laden] and a subsequent interview with
UBL”.
25. Another assessment brief concerned Mohamedou Ould Slahi, a
Mauritanian engineer who was held in Guantánamo for over 14 (sic!)
years without any charges having ever been pressed against him.
According to his assessment brief, he was deemed to be of high intelligence
value and, essentially, portrayed as a key al-Qaeda operative, responsible
for the recruitment of terrorists who later crashed planes into
the World Trade Centre. While detained at Guantánamo, Mr Ould Slahi
began writing a memoir, later published as a book and adapted as
a film. There, he recounted how he was subjected to extreme cold
and noise, extended sleeplessness, forced standing for extended
periods, threats against his family, sexual humiliation and mock execution
at sea. In 2003, a military prosecutor assigned to his case refused
to prosecute Mr Ould Slahi because his key testimonies were extracted
by torture, in breach of US and international law, rendering them inadmissible
in court. This did not prevent Mr Ould Slahi's detention from continuing
for the following 13 years.
26. During my visit to London, I had the pleasure of talking to
Mr Ould Slahi (via video link) and hearing his testimony. He recalled
his utter frustration and powerlessness due to his being denied
fundamental rights, such as access to court, by a State considered
a model of democracy and the rule of law. Mr Ould Slahi described Julian
Assange as a voice for all those deprived of their inherent right
to speak up for themselves. He believed it was highly unfair to
Mr Assange to be prosecuted for exposing war crimes, torture and
gross human rights violations, whereas their perpetrators enjoyed
absolute impunity and the Guantánamo detention camp continued to
operate. Mr Ould Slahi openly credited Julian Assange with the chance
of leaving Guantánamo and regaining his freedom.
4 Criminal
proceedings against Mr Assange and attempts to have him extradited
from the United Kingdom
27. In August 2010, the Swedish
authorities opened a preliminary investigation into reports of Mr Assange’s alleged
sexual misconduct. Having assessed the evidence, the Chief Prosecutor
of Stockholm cancelled an initial arrest warrant against Mr Assange
and ordered that the preliminary investigation into the alleged
conduct would continue on suspicion of the offence of "molestation".
28. Mr Assange voluntarily extended his stay in Sweden and, on
30 August 2010, was interviewed by police and answered all questions
asked of him. Following an appeal against the Chief Prosecutor’s
decision to a Senior Prosecutor in Göteborg, it was decided that
the preliminary investigation would be resumed and expanded.
29. The prosecutor deferred several requests by Mr Assange's counsel
to have him interviewed. On 15 September 2010, the prosecutor informed
counsel that Mr Assange was free to leave Sweden. When the counsel
asked whether the interrogation could take place in the next few
days, he was told it could not because the investigator was ill.
30. On 21 September 2010, the prosecutor and Mr Assange’s counsel
provisionally agreed on an interrogation to be held on 28 September
2010. On 27 September 2010, Mr Assange’s counsel informed the prosecutor
that he had been unable to contact his client. On the same day,
Mr Assange lawfully departed Sweden for London. Later that day,
the prosecutor ordered Mr Assange’s arrest.
31. Despite issuing an arrest warrant, Mr Assange's counsel and
the Swedish prosecutor were discussing possible appointments for
an interview. Furthermore, counsel offered a telephone interview
with Mr Assange (a lawful measure under Swedish law for purposes
of the preliminary investigation). The offer was declined. Similar
proposals by Mr Assange's counsel (including an in-person interview
at the Australian Embassy in London) were also declined.
32. On 18 November 2010, the Stockholm District Court ordered
(in absentia) Mr Assange’s
detention. On 2 December 2010, a European Arrest Warrant was issued.
On 7 December 2010, Mr Assange voluntarily surrendered himself for
arrest in London. He was granted bail on 16 December 2010 and released
to house arrest. The house arrest continued for some 550 days. On
24 February 2011, his extradition was ordered. On 30 May 2012, the
Supreme Court of the United Kingdom finally dismissed Mr Assange's
appeal.
33. On 19 June 2012, Mr Assange sought refuge at the Ecuadorian
Embassy in London. On 16 August 2012, he was granted diplomatic
asylum due to fears of “political persecution in case of his extradition
to the United States”.
Note
34. On 4 December 2015, the UN Working Group on Arbitrary Detention
adopted Opinion No. 54/2015, in which it considered that Mr Assange
was arbitrarily detained by the governments of Sweden and the United Kingdom.
Note It called on both to assess the situation
of Mr Assange, to ensure his safety and physical integrity, to facilitate
the exercise of his right to freedom of movement in an expedient
manner, and to ensure the full enjoyment of his rights guaranteed
by the international norms on detention.
35. Mr Assange remained in the Ecuadorian Embassy until 11 April
2019, when he was arrested for violating his 2012 bail conditions.
The Ambassador of Ecuador to the United Kingdom authorised police
officers to enter the building. He was remanded in Belmarsh Prison
– one of Britain's most secure prisons – and, shortly thereafter,
sentenced to 50 weeks' imprisonment for violating bail conditions
in 2012. The Working Group on Arbitrary Detention, in its statement
of 3 May 2019, expressed deep concern about his conviction, calling
it disproportionate and furthering the arbitrary deprivation of
his liberty.
Note
36. In September 2019, El País revealed that a Spanish private
security company, Undercover Global S.L., hired to protect the Ecuadorian
Embassy during Mr Assange’s stay there, had spied on him for the
US Central Intelligence Agency (CIA). It is alleged that the company's
CEO, Mr David Morales, handed over video and audio recordings of
Mr Assange's meetings with his visitors, including his lawyers.
According to El País, in December 2017, the Embassy was refitted
with a new surveillance system, allowing the CIA direct access to the
recordings.
Note Yahoo News reported that around
the same time, top US officials from President Trump's administration,
including the then-director of the CIA, Mike Pompeo, were discussing
plans to kidnap, poison or even assassinate Mr Assange. These plans
were allegedly developed in response to Ecuadorian plans to appoint
Mr Assange as an Ecuadorian diplomat in its Embassy in Moscow.
Note
37. As of July 2024, the Spanish investigation into the alleged
illegal surveillance of Mr Assange at the Ecuadorian Embassy was
still pending. According to media reports, the investigation was
being hampered by the US authorities' refusal to respond to requests
for judicial assistance. This assistance was allegedly dependent
on a US judge concluding his investigation into the alleged involvement
of the CIA in spying on the founder of WikiLeaks first.
Note
38. On the day of Mr Assange's exit from the Ecuadorian Embassy,
the US unsealed an indictment dated 6 March 2018, charging him with
a "federal charge of conspiracy to commit computer intrusion for
agreeing to break a password to a classified US government computer".
Note The indictment alleged that Mr Assange
had conspired with Ms Manning in helping her crack passwords and
release classified information to WikiLeaks. It further stated that
“[i]t was part of the conspiracy that Assange encouraged Manning
to provide information and records from departments and agencies
of the United States”.
39. On 23 May 2019, the US Department of Justice announced that
a federal grand jury returned a superseding 18-count indictment
that included 17 counts under the Espionage Act of 1917. The superseding indictment
alleged that Mr Assange conspired with Ms Manning; obtained from
her, and aided and abetted her in obtaining classified information
with reason to believe that the information was to be used to the
injury of the United States or the advantage of a foreign nation;
received and attempted to receive classified information having
reason to believe that such materials would be obtained, taken,
made, and disposed of by a person contrary to law; and aided and
abetted Ms Manning in communicating classified documents to Mr Assange.
Note Yet another superseding indictment
was returned on 24 June 2020, broadening the scope of the alleged conspiracy.
If convicted of all charges, Mr Assange would have faced a penalty
of up to 175 years’ imprisonment.
40. On 6 June 2019, the United States formally requested the extradition
of Mr Assange from the United Kingdom.
41. On 22 September 2019, Mr Assange's prison term for violating
bail formally ended. A district judge refused his release, holding
that as a person facing extradition, Mr Assange would pose a significant
risk of absconding. He continued to be remanded in Belmarsh pending
the outcome of his extradition proceedings.
42. Following his incarceration at Belmarsh, Mr Assange was visited
by the UN Special Rapporteur on Torture – Mr Nils Melzer – and a
medical team. They determined that Mr Assange showed “all the symptoms typical
for prolonged exposure to psychological torture” and demanded immediate
measures for the protection of his health and dignity.
Note Despite this finding, Mr Assange
continued to be held in Belmarsh, essentially in solitary confinement,
contributing to the aggravation of his mental state. In a press
release dated 1 November 2019, Mr Melzer further criticised the
UK authorities, stating: “Despite the medical urgency of my appeal,
and the seriousness of the alleged violations, the UK has not undertaken
any measures of investigation, prevention and redress required under
international law.” During the Covid-19 pandemic, his visitation
rights were restricted and he was at times confined fully to his
cell due to infections on his prison block and, in 2022, contracted
the virus himself.
43. On 19 November 2019, the Swedish authorities announced that
the investigation into the alleged sexual misconduct in 2010 had
been discontinued. Mr Assange has never been charged in relation
to the above-mentioned allegations.
44. Following several rounds of appeal, on 20 May 2024, the UK
High Court granted Julian Assange leave to appeal against his extradition
to the United States. The court acknowledged that there was an arguable
case that Mr Assange could be discriminated against in the US because
of his Australian nationality. This concern was bolstered by statements
from a US prosecutor indicating that the First Amendment to the
Constitution of the United States (guaranteeing freedom of speech
and expression) might not apply to foreigners in national security
matters.
Note The court also granted leave to
appeal on the grounds that Mr Assange's extradition could have been
incompatible with the right to freedom of expression under the European
Convention on Human Rights (ETS No. 5, “the Convention”), considered
to have a functional equivalent in the First Amendment.
45. Nevertheless, the UK’s courts did not allow Julian Assange
to rely on the political nature of his alleged offence as a defence
against extradition. Mr Assange has consistently claimed that his
extradition would violate the UK-US Extradition Treaty, which bars
extradition for some political offences. This treaty was signed
in 2003 to strengthen and expedite extradition between the two countries.
However, the Extradition Act, introduced into UK law the same year
as a reaction to the rise in international terrorism, does not contain
a similar provision. The High Court considered that the UK-US Extradition
Treaty was not incorporated into domestic law and did not reflect
customary international law. Consequently, it did not create personal
rights for individuals directly enforceable by the courts.
Note
5 Mr Assange’s
release and plea agreement
46. Mr Assange was unexpectedly
released on bail on 24 June 2024 (after five years and two months
in detention in Belmarsh) after agreeing to the terms of a plea
deal with the US Department of Justice and immediately left the
United Kingdom. He then travelled to Saipan, Northern Mariana Islands
(Commonwealth of the United States), where he was scheduled to appear
before a federal judge to finalise his plea agreement. On 26 June
2024, Mr Assange pleaded guilty to a single charge under the Espionage
Act of 1917 and was sentenced to time served in accordance with
the plea agreement. He returned to his native Australia shortly after
that, where he reunited with his family.
47. According to the plea agreement, a copy of which was published
by the US Department of Justice, Mr Assange pleaded guilty to a
charge of “conspiracy to obtain documents, writings, and notes connected
with the national defense, and willfully communicate documents relating
to the national defense, from a person having both lawful and unauthorised
possession of same, in violation of 18 USC [United States Code] paragraph
793(g)”. The said provision makes it a crime for two or more people
to conspire to violate any other subsection of Section 793. The
plea agreement stipulates that Mr Assange conspired with Ms Manning
to violate 18 USC paragraphs 793(c)-(e).
48. Section 793(c) makes it a crime for anyone who, “for the purpose
of obtaining information respecting the national defense,” receives
or obtains any document, writing, or note of anything relating to
the national defence, knowing or having reason to believe that the
materials have been obtained in violation of provisions of the Espionage
Act. Section 793(d) makes it a crime for anyone “lawfully having
possession” of tangible materials relating to the national defence
or information relating to the national defence that the “possessor
has reason to believe could be used to the injury of the United
States or to the advantage of any foreign nation”, to communicate
those materials to any person not entitled to receive them or to
retain them and fail to deliver them on demand to someone entitled
to receive them. Section 793(e) makes it a crime for anyone “having unauthorized
possession” of tangible materials relating to the national defence
or information pertaining to the national defence that the “possessor
has reason to believe could be used to the injury of the United
States or to the advantage of any foreign nation,” to communicate
those materials to any person not entitled to receive them or to
retain them.
49. The statement of facts agreed by Mr Assange and US prosecutors
claims that Mr Assange knowingly and unlawfully conspired with Ms Manning,
to “wilfully and unlawfully obtain, deliver, transmit and communicate documents,
writings and notes relating to the national defense, including classified
information, to persons not entitled to receive such items and information,
including the Defendant [Mr Assange] himself”. The document further
notes that “[t]o encourage Manning to continue to provide United
States classified documents that Manning had obtained without authorization
and for which Manning did not have authorization to transmit to Defendant
and WikiLeaks, the Defendant replied, ‘curious eyes never run dry
in my experience’”. Following a detailed list of all documents disclosed
by the WikiLeaks, the plea agreement stated “[s]ome of these raw classified
documents were publicly disclosed without removing or redacting
all of the personally identifiable information relating to certain
individuals who shared sensitive information about their own governments
and activities in their countries with the US government in confidence.”
Note
50. I should like to reflect further on this last quote. One of
the most popular arguments used to justify the disproportionately
harsh treatment of Julian Assange and WikiLeaks was that the release
of unredacted materials put the lives and safety of individuals
at risk. While I agree that any disclosures should be made in such
a way as to respect the personal safety of informers, intelligence
sources, and secret service personnel, the case of Mr Assange should
not be assessed in abstracto.
Over 13 years have passed since the publication of the unredacted
materials, no evidence has been produced showing that WikiLeaks'
publications have harmed anyone. The plea agreement itself clearly
states that “[a]s of the date of the Plea Agreement, the United States
has not identified any victim qualifying for individual restitution
and, thus, is not requesting an order of restitution.” This essential
factor must be considered when assessing the proportionality of
measures employed against Mr Assange in response to his (and WikiLeaks’)
publications. I find it paradoxical that while Mr Assange revealed
thousands of actually confirmed and previously unreported deaths
at the hands of US and coalition forces in Iraq and Afghanistan,
he was the one to be accused of putting multiple lives at risk, without
any evidence of that claim being presented.
6 Relevant
legal framework
6.1 Espionage
Act of 1917
51. The most concerning aspect
of the Espionage Act is that it penalises actions regardless of
their intentions. It provides for severe punishment of anyone who,
lawfully or not, possesses information relating to the national
defence or information pertaining to the national defence that the
“possessor has reason to believe could be used to the injury of
the United States or to the advantage of any foreign nation”, and
communicates those materials to any person not entitled to receive
them or to retain them. It does not distinguish between spies or
traitors who disseminate classified information with the intent
of harming or weakening their proprietor, and public watchdogs whose
purpose is informing the public about public authorities’ wrongdoings
so as to ensure transparency and accountability.
52. The Espionage Act was enacted by the Congress in 1917. President
Woodrow Wilson's administration used it to prosecute thousands of
anti-war protesters during and after the First World War. One of
the most striking examples of it being used to thwart free speech
was the conviction of Eugene Debs. He was sentenced to ten years'
imprisonment for his anti-war statements that, in the eyes of the
American justice system, allegedly obstructed military recruitment
and enlistment. He was released in 1921 after President Harding
commuted his sentence.
53. The best-known and most impactful case to be pursued under
the Espionage Act (before Julian Assange's prosecution) was the
Pentagon Papers case. The Pentagon Papers were a secret 47-volume
study commissioned by Secretary of Defence Robert McNamara in 1967,
detailing US political and military involvement in Vietnam from
1945 to 1968. Daniel Ellsberg, a former military analyst who had
worked on the study, leaked portions of the documents to The New
York Times in 1971, which began publishing it shortly after that.
The Washington Post also obtained copies and started publishing
articles. The administration of President Nixon sought to prevent
further publication, citing national security concerns. The Justice
Department obtained a temporary restraining order against The New
York Times, and the case was referred to the Supreme Court. In a
6-3 decision, the Court ruled that the government had failed to
justify prior restraint of publication, citing First Amendment concerns.
In that decision, Justice Potter Stewart famously wrote in his concurring
opinion that “[i]n the absence of the governmental checks and balances
present in other areas of our national life, the only effective
restraint upon executive policy and power in the areas of national
defence and international affairs may lie in an enlightened citizenry
– in an informed and critical public opinion which alone can here protect
the values of democratic government. … For without an informed and
free press, there cannot be an enlightened people".
Note
54. Despite the publication of the Pentagon Papers being allowed
to go forward, Mr Ellsberg was charged with several crimes, including
under the Espionage Act. If convicted, he would have faced 115 years' imprisonment.
However, due to governmental misconduct (including wiretapping Mr Ellsberg
without a court order), the case was dismissed by a judge. Mr Ellsberg
later claimed that he had been informed by a prosecutor working
on the Watergate scandal that the so-called "White House plumbers"
Note planned
to publicly embarrass the whistle-blower by adding LSD to his meal
and making him appear incoherent at a media event. His account was
confirmed by G. Gordon Liddy (one of the said “plumbers”) in an
autobiography.
Note
55. The conviction of Julian Assange marks the first time in the
history of the Espionage Act that someone has been convicted of
publishing classified information.
6.2 The
European Convention on Human Rights
56. The right to freedom of expression,
enshrined in Article 10 of the Convention, comprises the right to
hold opinions and the right to seek, receive and impart information
and ideas of all kinds without interference and regardless of frontiers.
As stated by the Committee of Ministers of the Council of Europe
in its Recommendation on the protection of journalism and the safety
of journalists and other media actors, "[t]he right to freedom of expression
and information, as guaranteed by Article 10 of the Convention,
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and the development
of every individual. Freedom of expression applies not only to ‘information’
or ‘ideas’ that are favourably received or regarded as inoffensive
or as a matter of indifference but also to those that offend, shock
or disturb the State or any sector of the population. In this way,
freedom of expression facilitates robust public debate, another prerequisite
of a democratic society characterised by pluralism, tolerance and
broadmindedness. Any interference with the right to freedom of expression
of journalists and other media actors therefore has societal repercussions
as it is also an interference with the right of others to receive
information and ideas and an interference with public debate.”
Note
57. An interference with the right to freedom of expression is
permitted only if it is prescribed by law, pursues one of the legitimate
aims set out in Article 10 paragraph 2 of the Convention, is necessary
in a democratic society (corresponds to a pressing social need),
and is proportionate to the legitimate aims pursued. These aims
are national security, territorial integrity or public safety, the
prevention of disorder or crime, the protection of health or morals,
the protection of the reputation or rights of others, preventing
the disclosure of information received in confidence and maintaining
the authority and impartiality of the judiciary.
58. The European Court of Human Rights has consistently considered
the press a "public watchdog" whose role is vital in facilitating
and fostering the public's right to receive and impart information
and ideas – a critical factor in a democratic society. In the Court's
view, this role of a "watchdog" is not limited to the press but
can also extend to non-professional journalists, NGOs, academic
researchers, bloggers, and other actors contributing to public debate.
Note In
its jurisprudence, the Court has accepted that when an NGO draws
attention to matters of public interest, it is exercising a public
watchdog role of similar importance to that of the press.
Note It has also
emphasised that to fulfil its "watchdog" function, the press must
be able to disclose facts of public interest, evaluate them, and
thereby contribute to the transparency of public authorities.
59. In one of its recent judgments, the Court held that the principles
governing the protection of journalists may apply
mutatis mutandis to the continued
detention of human rights defenders, leaders, or activists of relevant
organisations when such a detention has been imposed on them in
connection with criminal proceedings instituted for offences directly
linked to activities concerning the defence of human rights.
Note
60. "Chilling effect" in the context of human rights law refers
to the inhibition or discouragement of the legitimate exercise of
rights, such as freedom of expression, due to the threat of legal
sanction or other negative consequences. The Court has previously
considered that certain circumstances that have a chilling effect
on freedom of expression, such as charging someone with an offence
or detaining him or her on suspicion of committing an offence, interfere
with exercising their freedom.
Note It has made the same finding in relation
to the detention of investigative journalists for almost a year
under criminal proceedings brought for very serious crimes.
Note Furthermore,
criminal prosecutions of journalists based on criminal complaints
and leading to a three-year stay of proceedings, even though the
criminal proceedings were lifted after that period in the absence
of a conviction, constituted interference because of their dissuasive
effect on journalists.
Note The key consideration regarding
the chilling effect is that it affects not only the person directly
concerned by the authorities' response but creates a climate of
self-censorship affecting all journalists, publishers, or others
reporting and commenting on the running of the government and on
various political issues.
61. In its jurisprudence, the Court accepts that journalists may
sometimes face a conflict between the general duty to abide by ordinary
criminal law, of which journalists are not absolved, and their professional
duty to obtain and disseminate information, thus enabling the media
to carry out their essential role as a public watchdog. The concept
of responsible journalism requires that whenever a journalist –
as well as their employer – has to choose between the two duties,
and if they make this choice to the detriment of the duty to abide
by ordinary criminal law, the journalist has to be aware that they
run the risk of being subject to legal sanctions, including those
of a criminal character.
Note Nevertheless,
such interference with freedom of expression has to comply with
requirements set forth in Article 10 paragraph 2 of the Convention,
particularly the proportionality requirement. To this end, the penalty
cannot amount to censorship intended to discourage the press from
exercising its role as a public watchdog. In some cases, the fact
of a person’s conviction may be more important than the minor nature
of the penalty imposed.
Note
62. As regards the detention with a view to extradition, the Convention,
in Article 5 paragraph 1(f), provides that: “everyone has the right
to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure
prescribed by law: (f) the lawful arrest or detention of … a person
against whom action is being taken with a view to deportation or
extradition.” According to the European Court of Human Rights, this
provision does not require that detention be reasonably considered
necessary – for example, to prevent an individual from committing
an offence or fleeing. Any deprivation of liberty under the second
limb of Article 5 paragraph 1(f) will be justified, however, only
for as long as deportation or extradition proceedings are in progress.
If such proceedings are not prosecuted with due diligence, the detention
will cease to be permissible under Article 5 paragraph 1(f).
Note
63. The deprivation of liberty under Article 5 paragraph 1(f)
of the Convention must be “lawful”. Where the “lawfulness” of detention
is at issue, the Convention refers essentially to national law.
It lays down the obligation to conform to substantive and procedural
rules under national law. Compliance with national law is not, however,
sufficient: Article 5 paragraph 1 requires, in addition, that any
deprivation of liberty should be in keeping with the requirement
to protect the individual from arbitrariness.
Note It
is a fundamental principle that no detention that is arbitrary can
be compatible with Article 5 paragraph 1, and the notion of "arbitrariness"
in Article 5 paragraph 1 extends beyond lack of conformity with
national law so that deprivation of liberty may be lawful in terms
of domestic law but still arbitrary, and thus contrary to the Convention.
Note To avoid being branded as
arbitrary, detention under Article 5 paragraph 1(f) must be carried
out in good faith; it must be closely connected to the ground of
detention relied on by the government; the place and conditions
of detention should be appropriate; and the length of the detention
should not exceed that reasonably required for the purpose pursued.
Note In the case of Julian Assange,
the detention conditions at Belmarsh and the length of his detention, in
particular, appear to fall short of these requirements.
6.3 Other
Council of Europe standards
64. On 13 April 2016, the Committee
of Ministers adopted its Recommendation CM/Rec(2016)4 on the protection
of journalism and safety of journalists and other media actors.
The Committee of Ministers noted that legislation and its application
in practice can give rise to a chilling effect on freedom of expression
and public debate. Interferences that take the form of criminal
sanctions have a greater chilling effect than those constituting
civil sanctions. Thus, the dominant position of State institutions
requires the authorities to show restraint in resorting to criminal
proceedings. A chilling effect on freedom of expression can arise
not only from any sanction, disproportionate or not, but also from
the fear of a sanction, even in the event of an eventual acquittal,
considering the likelihood of such fear discouraging one from making
similar statements. The Committee of Ministers further observed
that actual misuse, abuse, or threatened use of different types
of legislation to prevent contributions to public debate, including
anti-terrorism and national security laws, can prove effective as
a means of intimidating and silencing journalists and other media
actors reporting on matters of public interest.
65. The Assembly has played a leading role in promoting the protection
of whistle-blowers across Europe. In Resolution 1729 (2010), Resolution
2060 (2015) and Resolution 2300 (2019), as well as Recommendation 1916
(2010), Recommendation 2073 (2015) and Recommendation 2162 (2019),
it highlighted the vulnerability and importance of whistle-blowers,
urged member States to implement comprehensive measures to protect them,
and appealed to the Committee of Ministers to adopt international
legal standards to assist with this. The Assembly’s commitment to
the protection of whistle-blowers has contributed to the Committee
of Ministers adopting a recommendation on the protection of whistle-blowers.
Note Similarly,
the European Union adopted a Directive,
Note and
many member States passed legislation to implement the Directive
and relevant Council of Europe standards. In January, the Committee
on Legal Affairs and Human Rights has tabled a new motion for a
resolution to examine remaining weaknesses of whistle-blower protection
in Europe and make proposals based on good practices for improving
it.
Note
7 The
Assembly’s definition of “political prisoner”
66. Assembly Resolution 1900 (2012)
establishes the following definition of “political prisoner”:
“A person
deprived of his or her personal liberty is to be regarded as a “political
prisoner”:
a if the detention has been
imposed in violation of one of the fundamental guarantees set out
in the European Convention on Human Rights and its Protocols, in
particular freedom of thought, conscience and religion, freedom
of expression and information, freedom of assembly and association;
b if the detention has been imposed for purely political
reasons without connection to any offence;
c if, for political motives, the length of the detention
or its conditions are clearly out of proportion to the offence the
person has been found guilty of or is suspected of;
d if, for political motives, he or she is detained in a
discriminatory manner as compared to other persons; or,
e if the detention is the result of proceedings which were
clearly unfair and this appears to be connected with political motives
of the authorities.”
67. This definition originated
in the work conducted in 2001 by the Council of Europe Secretary
General’s independent experts on cases of political prisoners in
Armenia and Azerbaijan, following those countries’ commitments upon
accession to the Council of Europe to release all political prisoners.
Note It has also been endorsed by
the Parliamentary Assembly of the Organization for Security and
Cooperation in Europe (OSCE) in the 2014 Baku Declaration and is
a reference for the work of civil society in many countries. It
is important to recall that any form or duration of deprivation
of liberty, be it imprisonment following conviction, pre-trial detention,
detention with a view to extradition, administrative detention or
even house arrest, may be covered by the definition of “political
prisoner”.
68. In my opinion, the treatment of Julian Assange clearly fulfils
several of these criteria. In particular, his indictment under the
US Espionage Act for core journalistic activities, such as obtaining
and publishing information of high public interest, is a manifestly
disproportionate interference with his freedom of expression. I
further believe that his prosecution in the United States and resulting
lengthy detention in the United Kingdom were motivated by the intention
to hide governmental wrongdoings and dissuade others from following Mr Assange’s
lead. As such, Mr Assange’s detention was primarily motivated by
considerations of political nature. I find it highly concerning
that the United Kingdom, a State bound by the European Convention
on Human Rights, failed to effectively protect his freedom of expression
and bears the brunt of responsibility for his arbitrary detention.
69. Consequently, I believe that Mr Assange should be properly
recognised by the Assembly as a political prisoner, having fulfilled
several criteria set out in resolution 1900 (2012).
8 Conclusions
70. In 2011, the Assembly adopted
resolution 1838 (2011) “Abuse of state secrecy and national security: obstacles
to parliamentary and judicial scrutiny of human rights violations”.
It was a follow-up to its earlier reports which exposed a vast network
of CIA’s secret prisons and named several European governments which
had hosted them or colluded in rendition and torture of prisoners
(including Poland, Romania, Lithuania, Germany, Italy, the United
Kingdom and North Macedonia). Emphasising the role of whisteblowers,
in this case Chelsea Manning, the Assembly welcomed the release
by WikiLeaks of diplomatic cables confirming the truth of the allegations
of secret detentions and illegal transfers of detainees published
by the Assembly in 2006 and 2007.
71. I am deeply worried that the case of Julian Assange is a classic
example of “shooting the messenger”. WikiLeaks’ publications, inspired
by Mr Assange’s commitment to transparency and accountability, have tremendously
impacted public debate. They revealed credible evidence of war crimes
having been committed by US and coalition forces in Iraq and Afghanistan,
torture and arbitrary detention in the Guantánamo Bay camp, illegal
rendition programmes involving Council of Europe member States,
unlawful mass surveillance, and many more. Yet, it was the whistle-blower
and the publisher who bore the most severe consequences of these
revelations. I find it appalling that Mr Assange’s prosecution was
portrayed as if it was supposed to bring justice to some unnamed
victims the existence of whom has never been proven, whereas perpetrators
of torture or arbitrary detention enjoy absolute impunity. In my
view, this was a deliberate tactic to deflect the attention away
from the contents of materials disclosed by WikiLeaks.
72. Publishers and journalists should never become targets of
such severe measures when they receive classified information from
whistle-blowers. Mr Assange’s conviction, although enabled by a
plea agreement, sets a dangerous precedent. It opens the door for
publishers to be tried under the Espionage Act for publishing materials
disclosed by whistle-blowers. Considering what Mr Assange has endured
over the last decade and the severe punishment he faced should he
be extradited to the US, I understand how compelling the vision
of regaining his freedom was and I do not in any way blame him for
not continuing to fight against his extradition. I find it alarming
that the United States was insisting on his pleading guilty to a
charge under the Espionage Act rather than accepting his defence
that he was acting as a journalist in the public interest when he
published the classified materials.
73. While the plea agreement prevents courts from possibly endorsing
the government’s most far-reaching argument – that disclosing classified
information does not enjoy the First Amendment protection – it still severely
undermines media freedom. My most significant concern is not necessarily
that publishers will now be prosecuted under the Espionage Act in
large numbers, but that Mr Assange’s conviction will push them towards
self-censorship. I am worried that many important stories will be
delayed or not published at all when editors start asking themselves
whether they might face the same ordeal Mr Assange has, in retaliation
for exposing State secrets. This is especially concerning for small
media outlets or independent journalists who do not benefit from
legal assistance available to large publishers.
74. My concerns are shared also by experts. During the hearing
before the Committee on Legal Affairs and Human Rights, Professor
Ní Aoláin stated that Mr Assange’s treatment underscored the fragility
of protection for human rights across the globe and affirmed the
broader point about the exceptionality of process, the abrogation
of the general rules, and the normalisation of exceptionality. She
referred to a growing trend of misusing measures designed for the
prevention and countering of violent extremism (P/CVE) against civil society
representatives, lawyers, and journalists. Human rights should be
a non-negotiable dimension of every counter-terrorism and national
security regulation. Narrow exemptions and carve-outs for national
security do not serve our societies well.
Note
75. Ms Vincent agreed that the Espionage Act was an outdated law
that has become the focus of growing calls for reform. This is in
part because it lacked a public interest defence, which would enable
someone accused under this Act to defend their actions as serving
the public interest. She emphasised that working with classified
information was a regular practice of journalism.
76. A similar concern was shared by Mr Crowther, who said that
the message being sent by the United States to publishers and journalists
was: “If you receive classified material, if you publish that material,
even if there is a clear public interest, you could be next. And
it doesn’t matter where in the world you are.” Although with the
plea agreement, the extradition would not take place, a loud message
would still have been sent that future publishers could themselves
face five years in pre-trial detention and lengthy legal proceedings
just as Mr Assange has. Mr Crowther also noted a dangerous precedent
being established in a geopolitical context. Namely, if the US could
seek the extradition of Mr Assange, why can other States not seek
the extradition of publishers and journalists who expose their wrongdoing?
There was a growing trend of national security offences being misused,
also in a transnational context, to target those who expose State
wrongdoing.
77. I find it quite symbolic that Mr Ellsberg, the whistle-blower
responsible for the release of the Pentagon Papers, spoke in support
of Mr Assange, stating that WikiLeaks had acted in the public interest
by publishing information about US actions in Iraq and Afghanistan,
similar to how the Pentagon Papers leak revealed information about
the Vietnam War.
Note
78. There is no denying that Julian Assange and WikiLeaks helped
uncover matters of utmost public interest and strengthened the concept
of journalism. While the confidentiality of certain documents should
be preserved, especially when their disclosure might entail risks
to human lives, I consider the prosecution and conviction of Julian
Assange to be manifestly disproportionate and aimed at punishing
him for his activities and dissuading others from following in his
footsteps. I fundamentally disagree with the premise that encouraging a
journalistic source to reveal more information can constitute a
criminal offence—such a way of thinking risks undermining the freedom
of the media worldwide.
79. While I acknowledge that the complexity of Mr Assange’s case,
in particular its transnational character, is unprecedented, it
is apparent to me that he fell within the Assembly’s definition
of a political prisoner, in accordance with Resolution 1900 (2012).
I believe that the strongest argument in favour of this classification
is that the charges under which he was indicted in the United States
were manifestly disproportionate in relation to his alleged offence.
Julian Assange was carrying out activities that were typical of
investigative journalism: he identified sources and incited them
to co-operate with him. The fact that he had to spend over five
years in detention before even being tried is concerning (to say
the least) on its own.
80. The key responsibility for Mr Assange’s political prisoner
status lies with the United States. It was their sovereign decision
to indict him under the Espionage Act and to explicitly state that
the government would pursue such a line of argumentation as to deprive
Mr Assange of a right to invoke the First Amendment.
Note
81. I regret that the UK’s justice system failed to adequately
protect Mr Assange from such a treatment. Even considering the complexity
of his case, the Covid-19 pandemic that severely impacted the operations
of justice systems worldwide, I find it inexcusable that despite
the lapse of more than five years, no final decision as to the extradition
was rendered. The European Court of Human Rights found a violation
of Article 5 paragraph 1(f) of the Convention in a case in which
the applicant was detained for over four years, despite its indication of
an interim measure under Rule 39 of the Rules of Court, staying
the enforcement of the extradition.
Note The fact
that Mr Assange had remained in detention should have compelled
the UK authorities to conduct the proceedings more expeditiously.
Furthermore, prominent journalists, politicians, UN and Council
of Europe human rights bodies and non-governmental organisations
argued that his detention and prosecution contribute to the creation
of a “chilling effect” potentially affecting all journalists. The
United Kingdom thus failed to adequately and expeditiously protect
Mr Assange’s fundamental freedoms under the Convention.
82. Materials published by WikiLeaks demonstrate that even the
most democratic governments cannot be trusted to work in the dark,
without scrutiny. Where State institutions fail to react adequately
to governmental abuse, the role of the press and whistle-blowers
becomes crucial. While I am relieved to see Julian Assange hugging
his wife and children, finally as a free man, I am worried about
the way forward for democracy. The disproportionate treatment he
was subjected to will surely affect media freedom around the world,
at a time when new conflicts are constantly emerging, transnational
repression is increasing and covert operations are conducted on
a daily basis. Reversing this trend will pose a significant challenge.
For the sake of our own security and liberty, we must insist that
the press operates in a secure environment, able to report on matters of
public interest, without fear of reprisals. I trust that proposals
presented herein, will help pave the way for this to happen.