Julian Assange may have won the first round of his extradition battle against the US but lawyers and the National Union of Journalists have warned his victory had little to do with the protection of journalism and free speech.
A study of the ruling from the district judge Vanessa Baraitser – which said the WikiLeaks founder should not be extradited on mental health grounds – appears to extend the scope of the British Official Secrets Act, which governs the leaking and handling of classified government information.
As part of the extradition case, Baraitser had to satisfy herself that Assange would have committed a criminal offence if the acts complained about by the US had instead taken place in the UK.
Critically, Baraitser, decided Assange did in part by “aiding and abetting” Chelsea Manning, a US army intelligence analyst, who leaked 250,000 US diplomatic cables to him. She cited extracts from a chatlog between the two to justify the argument.
On 10 March 2010, Manning said there was no more information to share on the Guantánamo detainee assessment briefs that she had passed on to Assange, suggesting there were no more leaks to come. Assange’s reply is probably best interpreted as one of general encouragement, writing “curious eyes never run dry in my experience”.
Afterwards, Manning decided to leak many more documents, including the US diplomatic cables a month later. At one point Assange provided a link to a secure drop box to pass on information – of the type used by many media organisations such as the Guardian – “in a specific directory that WikiLeaks had designated for her use”.
Gavin Millar QC, a specialist media barrister with Matrix Chambers, argues that Assange’s conduct is “exactly what a journalist would do”. He added: “Once you have a confidential source you want to establish what information they have, what access they have, whether they want to disclose it and how you might obtain it.”
At another point Assange used a password-cracking tool to try to gain access to the Pentagon system, after Manning provided an encrypted password. It would have allowed Manning to access a system she already had access to under a different username. The attempt failed, although Baraitser was highly critical of the move.
“This is the conduct which most obviously demonstrates Mr Assange’s complicity in Ms Manning’s theft of the information, and separates his activity from that of the ordinary investigative journalist,” the judge concluded.
Such crude interpretations are helped by the fact there is no formal public interest defence embedded in the various British official secrets acts, a point recognised last September by the Law Commission, which said one should be introduced when the government makes good on its Queen’s speech promise to update the legislation.
In one other area, Baraitser may be on stronger ground. She said Assange broke the Official Secrets Act by publishing unredacted US diplomatic cables in 2011, revealing the names of sources and informants. It was an act criticised by a wide range of media organisations at the time.
The National Union of Journalists said that while several British journalists have been threatened with prosecution under the act since the 1970s, including the Guardian reporter Amelia Hill during the phone-hacking scandal, until now those threats have never been carried out.
However, what the Assange ruling demonstrates is that the absence of an effective public interest clause makes it possible for lawyers acting for a foreign power – in this case the US – to contend that engaging with a confidential source in possession of classified information is a criminal offence.
