Twelve years after Wikileaks published classified documents from the U.S. army and the U.S. State Department, Julian Assange is about to know whether he will be extradited and have to face trial in the United States for conspiracy and computer fraud. After the British High Court ruled in favour of his extradition, the case has been sent to Priti Patel, the British Secretary of State, who should decide shortly if Julian Assange must be sent overseas. Her decision is of utmost importance, as it can potentially open a new chapter in this decade-long saga.
This article attempts to provide an overview of this case in order to evaluate the meaning and the impact of Julian Assange’s potential extradition. In other words, it is an occasion to grasp what could happen, or be avoided, depending on the upcoming final decision on the extradition request.
Julian Assange, a wanted man
Julian Assange founded Wikileaks in 2006, a platform aimed at letting anonymous whistle-blowers publish secret official content. In 2009, he leaked with the help of Chelsea Manning hundreds of thousands of classified documents from the American Government, namely war reports from the conflicts in Iraq and Afghanistan, Department of State cables and Guantanamo Bay detainee assessment briefs.
On 6 March 2018, he was indicted by the U.S. District Court for the Eastern District of Virginia for computer fraud and conspiracy to commit computer intrusion due to the alleged assistance provided to Chelsea Manning in the hacking of the classified U.S. military computer network. The U.S. Department of Justice took a step further on 23 May 2019 and issued a superseding indictment under the Federal Espionage Act for alleged conspiracy to commit computer intrusion as well as alleged conspiracy to receive, obtain and disclose national defence information. A second superseding indictment was also issued on 24 July 2020 without substantially modifying the previous allegations. On 20 July 2020, an extradition request was officially issued by the United States and validated by the British Secretary of State a few days later.
Before being targeted by the U.S. Government for the Wikileaks revelations, Julian Assange had already been involved in a judicial process with Sweden. In fact, the Swedish Prosecutor’s Office produced an arrest warrant in 2010 for alleged rape and sexual molestation but Julian Assange had left to seek refuge in Great Britain. He eventually got arrested in 2019 after the withdrawal by the Ecuadorian authorities of the political asylum granted in 2012 and a British Court sentenced him to fifteen weeks of jail for breach of the Bail Act. His request to be released on bail was denied and he will remain behind bars in the Belmarsh prison until the final decision on the extradition request is reached. The Swedish Prosecutor chose to discontinue the investigations and the allegations are all expired since 2020.
The extradition process
Even though Julian Assange has been indicted for conspiracy and computer fraud, he cannot face a trial until he enters American territory. As he currently stands in Great Britain, the United States has no other choice but to seek his extradition.
Because extradition is not an obligation under customary law, States usually conclude bilateral or multilateral treaties. In the United Kingdom, the Extradition Act of 2003 sets out the British extradition regime and gives effect to the bilateral treaty concluded with the United States.
As explained above, the United States launched the extradition mechanism by issuing a request to the British Government in 2020, a mechanism following the procedural requirements set out in the Extradition Act. After the request was certified by the Secretary of State and the warrant for the Requested Person’s arrest issued, hearings before the Westminster Magistrates’ Court could start.
Since extradition is not an absolute obligation, it can always be prevented under certain circumstances. For instance, a request can be denied if it would result in a human rights breach. Julian Assange’s lawyers were successful at first instance when they argued that his extradition would fall within these particular circumstances. On 4 January 2021, the district judge of the Magistrates’ Court pronounced a discharge considering that his mental condition would amount to an oppressive extradition. Under the Extradition Act, a request can indeed be denied when the mental or physical condition of the person concerned would amount to an oppressive or unjust extradition. However, this decision was overturned on appeal on 10 December 2021 before the Queen’s Bench division of the British High Court which found that the American request fulfilled all the requirements.
Julian Assange has now exhausted all of his remedies before domestic courts since the British Supreme Court refused to grant permission to appeal for lack of arguable point of law.
Following the Extradition Act, the High Court sent the case to the Secretary of State Priti Patel. The decision that will be taken in the following days is crucial given the issues at stake. Indeed, accepting the extradition request would not only determine the future of Julian Assange, it would amount to a trial for conspiracy with the potential of creating a precedent in the application of the Espionage Act that would possibly reshape the relationship between the freedom of press and national interests, such as national security.
National interests v Freedom of press
The Wikileaks revelations and the charges pressed against Julian Assange have caused lots of controversy. Different conflicting interests are at stake in this case: on one hand national security, on the other hand freedom of expression and freedom of press. The American Government wants to punish Julian Assange because the revelation of the documents in question ‘classified at the Secret level […] could cause serious damage to United States national security’. However, concerns have been expressed due to the fact that some alleged criminal activities detailed in the superseding indictments can be carried out by journalists. For instance, the Secure File Transfer Protocol technology exploited by Julian Assange is comparable to the ‘secure drop’ used by journalists who need to receive information from anonymous sources. The main fear shared amongst freedom of press defenders comes from the potential criminalisation of common journalistic methods. Setting such a precedent could intimidate journalists who would censor themselves more easily. The first superseding indictment specifies that the allegations would not hamper the freedom of press because Julian Assange should not be considered as a journalist. However, some commentators have criticised the lack of convincing arguments explaining how Assange’s operations were different from the way a journalist would proceed.
Substance-wise, the question related to the classification of his activities does not really matter. The First Amendment protection effectively covers everyone regardless of their occupation and the Espionage Act does not mention any exception for journalists. However, no journalist has ever been convicted in the United States under the Espionage Act so far. Given the sensibility of the case, the Obama administration had preferred not to press charges against Julian Assange to avoid any conflict with the freedom of press.
Julian Assange has mainly been indicted under the Espionage Act, a statute adopted in 1917, amended in 1950 and presently codified in Chapter 18 of the U.S. Code. If effectively extradited, he could be convicted up to 175 years of imprisonment. However, the path towards a conviction would be paved with substantive issues.
The Espionage Act only applies to information related to national defence. In US v Morison, the Justices defined the two conditions to fulfil in order to fall within this classification. More precisely, the information must be ‘potentially damaging to the United States or might be useful to an enemy of the US’ and be ‘closely held by the Government’. In addition, the Statute imposes an intent requirement (i.e. the mens rea), interpreted as ‘a reason to believe’ that the diffusion of information in question would be harmful to the state. Judge Ellis in the Rosen case followed this scheme and reaffirmed a ‘bad faith requirement’, meaning that the defendants must have acted ‘with a bad purpose either to disobey or disregard the law’. Therefore, to successfully convict Julian Assange, the Government would have to meet these requirements and find a way to prove the malicious motives behind the Wikileaks revelations, even though finding evidence of the intent is always a delicate task.
Despite the fact that the British judiciary approved Julian Assange’s extradition, the end of the story is yet to be written. The imminent decision of the British Secretary of State should clarify the situation and lift the veil of uncertainty. Should he be sent to the United States, his trial for conspiracy under the Espionage Act would certainly become a landmark case specifying the boundaries between freedom of press and national security as well as the extent of journalistic practices. However, this scenario will not happen if Priti Patel decides not to grant extradition.
 ‘What Is Wikileaks’ (Wikileaks, 2015) <www.wikileaks.org/What-is-WikiLeaks.html> accessed 12/05/2022.
 ‘Wikileaks Founder Julian Assange Charged in 18-Count Superseding Indictment, Charges Related to Illegally Obtaining, Receiving, Disclosing Classified Information (23 May 2019, US Department of Justice) <https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment> accessed 20/05/2022.
 Indictment, USA v. Assange, No. 1:18cr (2018).
 Superseding Indictment, US v Assange, No. 1:18-cr-ll (2019).
 Second Superseding Indictment, US v Assange, No. l:18-cr-111 (2020).
 US v Assange  EWHC 3313, para 4.
 ‘Julian Assange: A Timeline of Wikileaks Founder’s Case’ BBC (19 November 2019) < https://www.bbc.com/news/world-europe-11949341> accessed 20 May 2022.
 US v Assange  WMC; Ben Quinn, ‘Julian Assange Refused Bail Despite Judge Ruling Against Extradition to US’ The Guardian (6 January 2021) <https://www.theguardian.com/media/2021/jan/06/julian-assange-refused-bail-despite-judge-ruling-against-extradition-to-us> accessed 20 May 2022.
 Joana Dawson, ‘Extradition from the UK: What Next for Julian Assange?’ (House of Commons Library, 23 April 2019) <https://commonslibrary.parliament.uk/extradition-from-the-uk-what-next-for-julian-assange/> accessed 21 May 2022.
 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017). ICJ judges already specified that there was no such thing as an obligation to extradite under customary law (see the Joint Declaration of Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley, Libyan Arab Jamahiriya v UK  ICJ Reports). If an obligation is not arising from another source of International Law, a state can deny the extradition without breaching any rule.
 Treaty Series No. 13 (2007), Cm 7146.
 Extradition Act 2003, part 2.
 ibid; Dawson (n 9).
 Ibid, section 87.
 US v Assange (n 8), para 363.
 Extradition Act 2003, section 91.
 US v Assange (n 6).
 ‘Permission to Appeal’ (The Supreme Court, March 2022) <https://www.supremecourt.uk/news/permission-to-appeal-march-2022.html> accessed 21 May 2022; Haroon Siddique, Ben Quinn, ‘Julian Assange Denied Permission to Appeal against US Extradition’ The Guardian (14 March 2022) <https://www.theguardian.com/media/2022/mar/14/julian-assange-denied-permission-to-appeal-against-us-extradition > accessed 21 May 2022.
 US Department of Justice (n 2).
 Ethan Thompson, ‘Press Freedom and the Espionage Act: A Critical Juncture’ (2021) 66 Wash U J L & Pol’y 185.
 Letter from Dunja Mijatović to Priti Patel Secretary of State (10 May 2022).
 Superseding Indictment, US v Assange (n 4).
 Thompson (n 19).
 Gabe Rottman, ‘Special Analysis of the May 2019 Superseding Indictment of Julian Assange’ (2019) 34 Comm Law 5; Thompson (n 19).
 Kurt Wimmer & Stephen Kiehl, ‘Prosecution of Journalists under the Espionage Act: Not So Fast’ (2017) 33 Comm Law 24.
 Thompson (n 19).
 18 USC para 793-798.
 Daniela Johnson Restrepo, ‘Modern Day Extradition Practice: A Case Analysis of Julian Assange’ (2021) 11 Notre Dame J Int’l Comp L 138.
 Heather M. Lacey, ‘Government Secrets, National Security and Freedom of the Press: The Ability of the United States to Prosecute Julian Assange’ (2010-2011) 1 Nat’l Sec & Armed Conflict L Rev 202.
 US v. Morison, 844 F.2d 1057 (4th Cir. 1988).
 US v Rosen, 445 F. Supp. 2d 602 (E.D. va. 2006).
 Ibid (quoting US v. Morison, 844 F.2d 1057 (4th Cir. 1988).