The barrister-brewed humour of Edward Fitzgerald QC, one of the solid and stout figures defending a certain Julian Assange of WikiLeaks at the Old Bailey in London, was understandable. Time had worn and wearied the parties, none more so than his client. Fitzgerald had asked for water, but then mused that its absence could hardly have been as bad as the horrors of war in the Battle of Iwo Jima. What mattered was the decision on extradition.
Kevin Gosztola of Shadowproof also gave us a sense of the scene. "I see a bench of a glass container, where Assange will be isolated during the announcement of his extradition decision. This has been standard practice during this case, even after he complained about how it infringed upon his ability to participate in his defense."
As it transpired, District Justice Vanessa Baraitser went against her near perfect streak of granting extraditions by blocking the request by the US government for 17 charges based on the Espionage Act of 1917 and one of conspiracy to commit computer intrusion. Crudely put, she accepted the grounds of poor mental health, evidence that Assange was a suicide risk, and that his conditions of detention in a US supermax prison facility might well accentuate it. She also noted a "real risk that … Assange will be subject to restrictive special administrative measures [SAMs]."
Should the publisher be "subjected to the extreme conditions of SAMs, [his] mental health will deteriorate to the point where he will commit suicide with the 'single minded determination' described by Dr [Quinton] Deeley." She was further "satisfied that Mr Assange's suicidal impulses will come from his psychiatric diagnoses rather than his own voluntary act." Accordingly, "it would be oppressive to extradite [Assange] to the United States of America."
But for those unwilling to digest the headline act and specious highlights, the decision of Justice Baraitser was also an expansive effort to salvage the credibility of state-sanctioned persecution while dishing it out to the defendant. Central to her judgment was reasoning crafted to deny the exceptional, political nature of the Assange case and its threat to journalism.
She did not accept, for instance, that Assange would be treated differently - in other words, "be subject to harsh detention conditions on the basis of his political opinions or nationality." She further failed to accept that the case against Assange might be "manipulated for political purposes at the behest of the executive or the CIA."
The mountain of evidence submitted by defence witnesses demonstrating the markedly politicised nature of the Department of Justice's actions, left little impression. As Reprieve's board president Eric Lewis stated during the trial, individual prosecutors might well be acting in good faith but "the [DOJ] is highly politicised and many Americans would agree with that sentiment." Baraitser's response: "there is no credible evidence" to reach a conclusion "that federal prosecutors have improper motives for bringing these charges or to find they have acted contrary to their obligations and responsibilities of impartiality and fairness." Things remain perennially micro with some judicial minds.
Baraitser pays homage to state power and dirties the role played by WikiLeaks and whistleblowers. The defence had argued Assange engaged in activities as an investigative journalist, and that such conduct would be protected by Article 10 of the European Charter of Human Rights providing the right to freedom of expression and information.
But the judge evidently had different ideas uncritically focusing on the alleged conspiracy to commit computer intrusion between Chelsea Manning and Assange. In doing so, there was little engagement with the defence's demonstration that the hacking allegation is deeply flawed and speculative, both in terms of attributable identity and on the matter of execution. The testimony from Patrick Eller, formerly of the US Army Criminal Investigation Command headquarters at Quantico, was particularly damning. Manning, Eller revealed on September 25, 2020, "already had legitimate access to all the databases from which she downloaded the data." To have logged "into another user account would not have provided her with more access than she already possessed."
Baraitser merely accepted the prosecution submission that Assange had "agreed to use the rainbow tools, which he had for the purpose of cracking Microsoft password hashes, to decipher an alphanumeric code [Manning] had given him." The code was tailored for "an encrypted password hash stored on a Department of Defence computer connected to the SIPRNet [Secret Internet Protocol Router Network]." But Eller's testimony, referring to Manning's court martial records, makes the point that she never supplied the two files essential in generating the decryption key for the password hash. "At the time, it would not have been possible to crack an encrypted password hash, such as the one Manning obtained." In any case, Manning already had access, making any conspiracy needless.
None of this mattered a jot. "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." Assange had also allegedly engaged in conduct that would amount to offences in English law, not only with Manning, but with "computer hackers Teenager, Laurelai, Kayla, Jeremy Hammond, Sabu and Topiary to gain unauthorised access to a computer".
The judge also took a withering view to the publisher's "wider scheme, to work with computer hackers and whistle blowers to obtain information for WikiLeaks." She latched onto the US prosecution's keenness to target Assange's philosophy, citing the "Hacking at Random" conference held in August 2009 and the "Hack in the Box Security Conference" in October that year. "Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law." The right to freedom of expression was mediated by imposed responsibilities and the "technical means" used in gathering information.