The United Kingdom High Court granted Julian Assange leave to appeal his extradition to the United States on the grounds that he is at risk of discrimination due to his nationality. His treatment highlights the limits of Australian diplomatic influence. 

In May, there was much in the way of speculation as to whether the UK High Court of Justice would grant Julian Assange leave to appeal his extradition to the United States to face 18 charges, 17 inspired by the Espionage Act of 1917. It is hard to diminish the gravity of what the WikiLeaks founder is accused of: receiving and publishing classified US government materials comprising diplomatic cables, the files of those detained in Guantanamo Bay, and the wars in Iraq and Afghanistan. Any computed sentence, glacially calculated at 175 years, would effectively amount to a constructive death sentence. 

In March 2024, the UK High Court curtly dismissed six of the nine arguments submitted by Assange in part of his effort to seek a review of his entire case against extradition. The judges, moored in the initial reasoning of the district court judge, refused to accept that he was being charged with a political offence, something barred by the US-UK Extradition Treaty, or that the CIA had breached lawyer-client privilege in having spied on him in the Ecuadorian embassy in London, not to mention the serious thought given to his abduction and assassination.   

The judges rewarded the prosecution with a gift: extradition would be more likely if a number of assurances could be made by the US government. These were, in turn, that Assange be offered First Amendment protections, despite him not being deemed a journalist; that no prejudice would come to him, both during the trial and in sentence, on account of his nationality, and that he not be subject to the death penalty.  

On 16 April, the US State Department filed the non-binding assurances in a diplomatic note to the Crown Prosecution Service (CPS). “Assange will not be prejudiced by reason of nationality with respect to which defenses he may seek to raise at trial and at sentencing.” If extradited, he could still “raise and seek to rely upon at trial (which includes any sentencing hearing) the rights and protections given under the First Amendment of the Constitution of the United States. A decision as to the applicability of the First Amendment is exclusively within the purview of the US Courts.”   

The US authorities further undertook to avoid seeking or imposing the death sentence. “The United States is able to provide such assurance as Assange is not charged with a death-penalty eligible offense, and the United States assures that he will not be tried for a death-eligible offense.”   

On 20 May, the High Court was sufficiently unconvinced by the given reassurances, granting leave to Assange to appeal on the grounds he is at risk of discrimination by virtue of his nationality, insofar as it affects his right to assert protections afforded by Article 10 of the European Convention on Human Rights and the US First Amendment.   

The inexorable legal proceedings just described have demonstrated the limits of Australian diplomacy in the corridors of Washington. Despite the AUKUS alliance, which is seeing Australian money and strategic real estate used by the United States and the UK as part of a geopolitical dance; despite repeated claims of friendship and the importance of the Washington-Canberra alliance, the Albanese government has failed to convince the Biden administration to drop the case against Assange. 

This is not for want of trying – at least in some circles.  Last September, a diverse parliamentary delegation comprising such individuals as Nationals MP Barnaby Joyce, Greens Senators David Shoebridge and Peter Whish-Wilson and the independent member for Kooyong, Dr. Monique Ryan, raised their concerns about the continued prosecution of Assange with members of the US Congress. Ahead of their visit, over 60 Australian parliamentarians had opined in a letter published in the Washington Post that, “As Australian Parliamentarians, we are resolutely of the view that the prosecution and incarceration of the Australian citizen Julian Assange must end.”   

During the visit, Senator Shoebridge went so far as to suggest that the continued detention of Assange was “an ongoing irritant in the bilateral relationship.”  Not resolving the matter would “be damaging” to the alliance. 

The visit was not fruitless, at least on the Congressional front.  In December 2023, House Resolution 934, introduced by Rep. Paul A. Gosar, an Arizona Republican, materialised, expressing “the sense of the House of Representatives that regular journalistic activities are protected under the First Amendment, and that the United States ought to drop all charges against and attempts to extradite Julian Assange.” 

On 14 February this year, Tasmanian independent MP Andrew Wilkie put a Private Members Motion to the House of Representatives emphasising, among other things, the admission by both the government and opposition that “this matter has gone on for too long” and underlined “the importance of the UK and USA bringing the matter to a close” to enable Assange’s return to Australia. It passed by 86 votes to 42. 

Such transpacific bonhomie on the part of Australian and US politicians has not translated into concrete diplomatic returns. Australian Foreign Minister Penny Wong has remarked at various points that the Assange case remains a source of constant reminder from the Albanese government to their US counterparts. During her visit to the UN General Assembly last September, she told reporters that, “We have raised this many times.”  Both she and US Secretary of State Antony Blinken had spoken “about […] the views that the United States has and the views that Australia has.”  

Unfortunately for Wong, Blinken has shown himself to be rather unmoved. In July 2023 on a visit to Australia accompanied by US Secretary of Defense Lloyd J. Austin III, he reminded his hosts that Assange had been “charged with very serious criminal conduct in the United States in connection with his alleged role in one of the largest compromises of classified information in the history of our country.”   

In April this year, Australian Prime Minister Anthony Albanese told ABC’s News Breakfast that he had again raised Assange’s plight with the Biden administration as a matter of “national interest, that enough is enough, that this needs to be brought to a conclusion, and we’ve raised it at each level of government in every possible way.”  It was a comment prompted by the most fleeting of remarks by President Joe Biden that his administration was “considering” the case.  

While rumours of negotiations regarding a potential plea deal between Department of Justice officials and Assange’s legal team have been coasting through the mediascape, nothing, to date, has materialised. Nor, it would seem, has an effective, convincing policy from Canberra to move matters. Indeed, in a series of talking points prepared for the Australian Attorney-General Mark Dreyfus on 2 June, 2022, the strategy seems focused on letting the machinery of extraditing, trying, and convicting Assange to take place before permitting a possible international prison transfer.   

One obvious way to change the equation would be to make the performance of obligations due under AUKUS conditional on the release of the publisher. It would be a daring, if most unlikely proposition. When it comes to the US-Australian alliance, Canberra’s timidity continues its predictable reign. 

Dr Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He currently lectures at RMIT University.  Email: bkampmark@gmail.com  

This article is published under a Creative Commons License and may be republished with attribution.