The extradition trial of the decade began in a London Magistrates Court this week in the case of the United States versus Julian Assange.
This has been brewing since 2009, when Assange's Wikileaks organisation solicited bulk databases containing sensitive information for download. The US alleges that in late 2009 Chelsea Manning, formerly known as Bradley Manning and at the time a US intelligence analyst deployed in Iraq, responded to Wikileaks and in early 2010 downloaded nearly four complete databases from US departments and agencies.
These databases contained approximately 90,000 Afghanistan War-related reports, 400,000 Iraq War-related reports, 800 Guantanamo Bay detainee assessment briefs, and 250,000 US Department of State cables.
Manning was arrested in May 2010, and subject to court-martial in 2013. Assange, however, was able to avoid US arrest until 2019, when - following his expulsion from the Ecuadorian embassy in London, where he had been granted asylum in 2012 - a US District Court issued an indictment containing 18 counts. That indictment, and the accompanying US extradition request to the United Kingdom, is the basis for the London legal proceedings.
The US extradition request is comprehensive and unprecedented. It extends to charges relating to an alleged conspiracy to receive national defence information, obtaining and disclosing national defence information, and conspiracy to commit computer intrusion.
In total, the charges would amount to 175 years' prison time, if convictions were to be recorded for all counts and the maximum penalties imposed.
Assange is also being subjected to a unique US form of so-called "long-arm" jurisdiction, given he is not a US citizen and none of his alleged actions took place whilst in the US.
Pressure is beginning to grow on the Morrison government to do something about the Assange case, in a similar way to how in 2007 pressure built on the Howard government to respond to David Hicks.
Rather, the US is asserting that Assange's actions so threatened its national security and its citizens that he can be charged under US criminal law anywhere in the world.
The terms of a 2003 UK-US extradition treaty are critical to this case. They contain a general requirement for double-criminality, and that extradition not be sought for so-called political offences. Importantly for Assange, the death penalty can also not be applied.
If the UK courts are satisfied that all of these requirements have been met, then extradition can be ordered - however the UK home secretary still needs to endorse the US request.
This means that whatever the law may have to say on extradition, the final decision is made by a politician - and as such a range of additional factors can come into play, including Assange's health. This was famously highlighted by the 2000 decision of the then-UK home secretary, Jack Straw, not to extradite Augusto Pinochet to Spain because of poor health.
Assange's legal team will argue that extradition should be denied because Article 4 of the 2003 treaty does not permit extradition in the case of a political offence.
They will no doubt argue that any alleged acquisition by Wikileaks of classified US national security documentation is by definition political in nature, just on the basis of the security classification of the material. The political nature of the US request will be further asserted on the basis that US politicians from various sides, including the then-secretary of state, Hillary Clinton, and President Donald Trump, have all called for Assange's extradition.
Trump's recent statements regarding what he sees as his unlimited presidential power to intervene in matters before US courts will also be seized upon to call into doubt the independence of the US judicial system. Recent revelations regarding secretive recordings of Assange's meetings with his lawyers in 2018 whilst at the Ecuadorian embassy will further add to arguments that his rights to fair trial before the US courts have been compromised.
The current extradition proceedings will continue this week with further hearings set down for May and a final decision at the earliest in June. From there multiple appeal options would be available to both sides such that it is unlikely the case will be finalised this year, and may extend well into 2021 and even beyond if it goes on appeal to the UK Supreme Court.
During this time, the profile of the Assange case will continue to build in Australia, and there is evidence that his plight is beginning to attract public attention. A Parliamentary Friendships Group has been formed, and this month Andrew Wilkie presented to Parliament a 270,000-signature petition calling for Assange's release. Wilkie and Nationals MP George Christensen visited Assange in Belmarsh Prison last week, after which they raised concerns about his health.
Pressure is beginning to grow on the Morrison government to do something about the Assange case, in a similar way to how in 2007 pressure built on the Howard government to respond to David Hicks when he was being held by the US at Guantanamo Bay.
In the Senate this week, Foreign Affairs Minister Marise Payne restated that Australia has no legal standing in the Assange case, but had nevertheless raised with the UK Foreign Secretary during his recent Canberra visit the conditions under which Assange is being detained. Further recent allegations of Assange having been strip-searched in prison will continue to place the spotlight on the Australian government's response.
- Donald R Rothwell is a Professor of International Law at the ANU College of Law, Australian National University.