WikiLeaks founder Julian Assange was denied release on bail today following a court ruling that he should not be extradited to the US to face hacking and espionage charges.
Judge Vanessa Baraitser cited Assange’s support in helping National Security Agency (NSA) whistleblower Edward Snowden evade arrest as one of the reasons for keeping him in prison until the US can appeal her decision.
The judge said that as far as Assange was concerned, the case had not yet been won and he still had an incentive to abscond.
“Mr Assange still has a huge support network available to him should he go to ground,” Baraitser said in a ruling today at Westminster Magistrates Court.
The 49-year-old, who had been held at Belmarsh for 15 months, will remain in prison until the outcome of an appeal by the US government.
Speaking outside court after the hearing, Assange’s partner and mother of two of his children, Stella Moris, called for the US government to drop the case.
“This a huge disappointment,” she said. “Julian should not be in Belmarsh prison in the first place. I urge the Department of Justice to drop the charges and the president of the United States to pardon Julian.”
Assange supported Snowden
The court heard from Clair Dobbin, representing the US government, that Assange’s support for Snowden was one reason why he could not be trusted not to abscond.
Assange had said in an interview that he had arranged distraction operations to help Snowden – who blew the whistle on US mass surveillance programmes – avoid arrest, said Dobbin.
When there was a worldwide manhunt for Snowden in 2013, WikiLeaks helped to get him out of hiding in Hong Kong to Russia.
When the US cancelled Snowden’s passport, WikiLeaks looked at using private jets, or presidential jets, to help Snowden reach South America.
WikiLeaks booked flights to India through Beijing and created other distractions to impede Snowden’s arrest.
“That should leave this court in no doubt over Mr Assange’s wherewithal to avoid complying with bail conditions,” Dobbin told the court.
She said Assange’s history of attempts to evade extradition showed that he was capable of going to almost any lengths to avoid it.
“He was willing to spend seven years in an embassy, with all the deprivations that involved,” she added.
The court had already accepted evidence from an expert witness that Assange would take his own life to avoid extradition, Dobbin told the judge. If that was the case, there was a strong risk of him fleeing from justice, she said.
Judge rejects arguments for bail
The judge rejected arguments from Edward Fitzgerald QC that Assange had no motive to abscond following the court’s decision on Monday not to extradite him.
Fitzgerald said Assange had been detained in Belmarsh prison for 15 months solely on the basis of the extradition request and now the grounds for extradition had gone.
He said there was little precedent for courts to overturn rulings to discharge extradition requests for mental health reasons on appeal.
“Mr Assange has every reason to stay in the jurisdiction where he has the protection of law and every reason to accept bail conditions, no matter how stringent,” said Fitzgerald.
He said bail would allow Assange contact with his family and two young children and would anchor him to the community.
A significant number of responsible people had offered substantial sums in surety and the bail conditions would include Assange wearing a GPS ankle bracelet that would give an immediate alert if he moved, the court heard.
“The absconsion was eight years ago in a totally different situation, in relation to a totally different request and a different ruling,” said Fitzgerald. “Since then, everything has changed.”
Human Rights Act
Fitzgerald told Baraitser that she should consider Assange’s rights under the Human Rights Act when deciding bail.
He said Assange had already served his full sentence for absconding in 2012 and that all the doctors who gave evidence agreed that he suffers from depression and autism.
Assange was also at a higher risk of Covid if he remained in prison, said Fitzgerald.
“The court can look at the position whether it is proper to deny him his liberty – however circumscribed that might be – when he has secured an order for discharge, and when he can live with his family and children, where on any view the risk of Covid is reduced,” he added.
Doubt over US continuing prosecution
The court heard that there was now doubt whether the US would continue its intention to appeal under the Biden administration.
Zachary Terwilliger, US attorney for the Eastern District of Virginia, which is driving the Assange case, said in an interview yesterday that he was uncertain whether the case would continue under Biden.
Terwilliger pointed out that the Assange case had already consumed years of work by prosecutors and other officials. “There’ll be some decisions to be made,” he told NPR. “Some of this does come down to resources and where you’re going to focus your energies.
“This is not the language of this appeal being pursed at all costs.”
Dobbin said the US government would argue that Baraitser had applied the wrong legal test in assessing whether Assange was likely to commit suicide in the US.
Quoting case law, she said the courts had not intended to set a test that it would be impossible for a person extradited to the US to commit suicide in a US prison.
The US would argue that the test was whether the severity of Assange’s mental condition was enough for him to resist the impulse of suicide, she added.
The US was also considering whether to make undertakings about Assange’s treatment in prison.
Dobbin argued that Assange’s children were born while he was in the Ecuadorian embassy in order to avoid extradition. They had never lived together as a family.
“The only issue is Mr Assange’s ability to flee and live elsewhere, and obviously his family would be free to follow,” she said.
Mexico offers asylum
Dobbin said the president of Mexico had used his daily press conference on Monday to offer Assange political asylum and had praised the UK court’s verdict.
“There are countries that are sympathetic to Mr Assange,” she said. “He would be able to enter the embassy of another country to claim asylum.”
But Fitzgerald said the offer had been misquoted. Mexico was making an approach to the UK government and was “going though proper channels to see if he [Assange] can be freed and granted asylum – it is not saying, come to our embassy”, he said.
Mexico was offering Assange asylum after the conclusion of the proceedings, said Fitzgerald.
That would mean Assange would not be trapped in the UK, like alleged hackers Laurie Love and Gary McKinnon. They won their extradition case but could face charges and extradition to the US if they left the protection of the UK.
Assange will remain in Belmarsh prison in southeast London until the US completes its appeal.
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