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Court rejects request to exclude ‘11th hour’ US evidence against WikiLeaks founder Julian Assange

Lawyers for Julian Assange say the US has introduced an 11th hour indictment against the WikiLeaks founder that provides additional grounds for his extradition

The US government has left Julian Assange with insufficient time to prepare a legal defence after serving a new indictment “without warning” only weeks before his extradition hearing, lawyers for the WikiLeaks founder said today.

Edward Fitzgerald QC, acting for Assange, said it would be extraordinary for the court to hear the new allegations within weeks of the US announcing new allegations against his client.

The barrister said it had only become clear in the past two weeks that the US had effectively introduced new charges in a superseding indictment issued on 29 July.

He was speaking on the first day of a hearing at the Old Bailey in London, which is scheduled to run for at least three weeks.

Assange attended the hearing in person, wearing a navy-blue suit, shirt and tie, and sporting a smart haircut. The 49-year-old confirmed his name and age to the judge.

The court heard that Assange had been arrested and served with a superseding indictment by the US.

Fitzgerald said new material in the US’s third indictment was not simply background material, but was being put forward to the court as the basis of standalone criminality.

“It is now being said that even if the court rejects the charges against him, [Assange can be extradited] on the basis of the new material alone,” he said.

The court heard that it would be extraordinary in normal circumstances to consider the additional material in the indictment, but even more extraordinary when Assange has been in custody and had restricted access to his lawyers.

There are chapters of allegations that are not remotely criminal, and issues around many of the other allegations raised by the US, said Fitzgerald.

Hacking conspiracy

Evidence submitted by the US accuses Assange of conspiring with named computer hackers to obtain information for WikiLeaks.

The latest indictment raises questions around the role of an FBI informant, known as Hector Xavier Monsegur or “Sabu”, and how he came to be cooperating with the FBI.

The indictment fails to disclose that members of the hacking group LulzSec, known as Topiary and Kalya, were tried for hacking offences in Southwark Crown Court a decade ago, said Fitzgerald.

Another alleged hacker referred to in the US evidence was given a maximum sentence, before being later summoned before a grand jury investigating Assange.

There are also questions around an individual known as Teenager, who was convicted in Iceland of fraud and theft, along with impersonation of Assange.

The US previously counselled caution in dealing with him. “Now apparently that caution has gone,” said Fitzgerald. “It was thought they were using Teenager to frame Assange.”

Many of the new claims against Assange relate to computer intrusion, which has a limitation of eight years. The majority of these are out of time.

“They are bolstered by what you might think of as ‘make weight’ allegations designed to bring all of this back within the limitation period,” said Fitzgerald.

The barrister said it would be unfair on Assange, who has been in custody in a maximum security prison since April 2019, to delay the proceedings.

He said that the only fair way of dealing with the new material was to excise it from the court proceedings, adding that there had been no explanation from the US and no apology for the late introduction of new material.

Nuclear options

“We have an explanation. We think the US saw the weakness of their own case,” said Fitzgerald.

He said that if the US was right in saying, “Ha ha, we are doing it and there is nothing you can do about it”, the court had two nuclear options: “You can say, if you are going to smuggle that into charge two we are not going to consider charge two. The other would be to adjourn.”

Judge Vanessa Baraitser said she had previously offered the defence the opportunity to adjourn the case to address the inducement. “I appreciate that Mr Assange was in custody and that was not attractive,” she said.

But the defence had decided against it. 

Baraitser declined to excise the new US material from the case. She said if it was to be argued that parts of the US extradition request be excluded, that should be done while considering the extradition request.

Defence requests adjournment

Mark Summers QC, also representing Assange, later told the court that the defence would have to apply for the proceedings to be adjourned to give time to gather evidence to deal with the fresh allegations.

“It is not an application we make lightly,” he said, given that Assange is already being held in prison. “We are not in a position to gather evidence and respond to a case that has only emerged in the last few weeks.”

Summers said it had been difficult for his lawyers to communicate with Assange, who is in HM Prison Belmarsh.

“We are not in a position to gather evidence and respond to a case that has only emerged in the last few weeks”
Mark Summers QC, representing Julian Assange

The only way Assange can receive documents is if they are posted to Belmarsh. He has still not seen the revised opening note and the documents that accompany it, which make the issues of the new indictment “pellucidly clear”.

Fitzgerald told the judge that Assange had been able to make short phone calls from a payphone at the prison. “Everyone strains to hear him,” he said. “He can’t hear us and we can’t hear him. He was having to take information from us on detailed and complex documents.”

James Lewis, representing the US government, said the defence had already had two months. He said it was difficult to see how the defence would be “affected one jot” by the expansion of point two of the indictment into computer hacking.

“We are here, we are ready to go. It is a matter of making sure the hearing is fair, but you are the arbitrator of that,” he told the judge. If the hearing was delayed, he said, “we will just be served with a slay of further material that has no baring on point two”.

The judge refused the application. “The defence have had ample time to return to court and seek to apply to adjourn the case,” she said.

Long list of allegations

The WikiLeaks founder faces 17 charges under the 1917 Espionage Act after WikiLeaks published a series of leaks from Chelsea Manning, a former US Army soldier turned whistleblower, in 2010-11.

The 49-year-old faces a further charge of conspiracy to commit computer intrusion. The charges, filed in an indictment by the Eastern District of Virginia, carry a maximum sentence of 175 years.

Assange is wanted in the US for allegedly conspiring with army intelligence analyst Chelsea Manning to expose military secrets between January and May 2010.

A US grand jury has indicted him on 18 charges – 17 of which fall under the Espionage Act – including conspiracy to receive, obtain and disclose classified diplomatic and military documents.

He has been held on remand at the maximum security jail since April 2019 and has missed several recent hearings because of “respiratory problems”

Assange was granted political asylum in the Ecuadorian Embassy in London in 2012 to avoid onward extradition to the US from Sweden for sexual offence allegations dating back to 2010, which he has always denied.

In November, Swedish authorities dropped the rape allegations, but he was jailed for 50 weeks last April after breaching his bail conditions when the asylum period granted to him expired.

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