Much of the defense’s case—including many of the arguments it revealed in the initial February hearings—focuses on the political nature of the charges. Assange’s lawyers point out that “political offenses” aren’t subject to extradition in the US-UK extradition treaty, and they argue that his prosecution is “being pursued for ulterior political motives and not in good faith.” The Espionage Act charge against Assange, which alleges that he illegally released classified documents, is by its nature a political offense that falls outside the extradition conditions, the defense argues. To emphasize the politicized nature of the case, they reference President Trump’s years-long war with the press, referring to the media as “the opposition party,” and “the enemy of the people.” They raise then-CIA director Mike Pompeo’s statement in April 2017 that he saw Assange and WikiLeaks as “a non-state hostile intelligence agency.”
That interpretation broke with that of the Obama administration, which considered prosecuting Assange under the Espionage Act in 2013 but chose not to, since doing so would violate a long precedent of not prosecuting news outlets for publishing classified information they obtain from sources.
“The indictment breaks all legal precedents. No publisher has ever been prosecuted for disclosing national secrets since the founding of the nation more than two centuries ago,” wrote journalism professor Mark Feldstein in his testimony on behalf of the defense. “The belated decision to disregard this 230-year-old precedent and charge Assange criminally for espionage was not an evidentiary decision but a political one.”
The defense’s arguments also seek to undermine the hacking case against Assange, which alleges that he conspired with former army private Chelsea Manning and others to steal classified information. That original hacking charge, the basis of the first indictment unsealed against Assange in April of last year, relied on the fact that Assange offered in chats with Manning to help her crack a hashed password—thereby involving himself in Manning’s theft of secret information from the military. But the defense points out that testimony in Manning’s own court martial was inconclusive as to whether Assange had ever actually cracked the password, or whether he would have been able to with the information Manning provided, or what purpose the password would be used for if it were successfully cracked.
In June, prosecutors hit Assange with a superseding indictment that added allegations of conspiring with hackers who provided stolen information to WikiLeaks, including Anonymous hackers Jeremy Hammond and Hector Monsegur, as well as Icelandic WikiLeaker Sigurdur Thordarsson. The defense argues that those new elements serve only as “background narrative” of a hacking conspiracy, and “absent proof of the Manning allegations the new additional conduct could not sustain, of itself, conviction.”
Moreover, the surprise introduction of a new indictment after the extradition case had already begun in February is highly unorthodox, says Tor Ekeland. It may even signal to the UK court that the US Department of Justice will pile on more charges after it already has Assange in hand, he says. Defense attorneys for Assange in a hearing Monday unsuccessfully sought to have the new elements of the indictment disregarded in the extradition case, given that they had little time to prepare counterarguments. “It’s an offense to the rule of law,” says Ekeland. “It shows that the US cannot be trusted not to supersede the indictment again if Assange is extradited.”
Ekeland argues that Assange’s defense still has powerful arguments in its favor, from the freedom of the press precedents that the Assange prosecution would violate to the potential threat to Assange’s mental health and well-being if he ends up in an American prison. That mental health argument in particular has worked in the past for British hackers the US has attempted to extradited: Ekeland’s own client Lauri Love avoided extradition after a psychiatrist testified that he suffered from psychosis and depression, and UK hacker Gary McKinnon escaped extradition in 2012 thanks in part to his diagnosis of autism.