© RTWikiLeaks founder Julian Assange is seen on the balcony of the Ecuadorian Embassy in May, 2017.
The press has no right to access the full set of documents on the Julian Assange case, because the need for the British authorities to protect the confidentiality of the extradition process outweighs the public interest of the press to know.
Thousands of pages of documents on the Assange case will therefore remain secret, without the media being able to learn their contents or obtain any copies of them. This is what the London First-tier Tribunal, chaired by Mr. Andrew Bartlett QC, established in response to an appeal filed by la Repubblica.
Last November, our newspaper appeared before the First-tier Tribunal in London to defend the right of the press to access the full file on a case which is anomalous to say the least. Regardless of what you think about the founder of WikiLeaks, whether you like him and his work or not, Julian Assange is the only Western publisher to have been found by the UN Working Group on Arbitrary Detention to be arbitrarily detained in the heart of Europe since December 2010. Yet in the course of these last 7 years, no media has tried to access the full file on Julian Assange.
That is why Repubblica decided to file an appeal to the First-tier Tribunal against the refusal on the part of British authorities to release the full set of documents. The hearing took place in London last November and the British authorities testified in a closed session. Now, not even a month after the hearing, the Tribunal has issued its verdict: our appeal has been dismissed. At this point, we will have to consider whether there are legal grounds to appeal to the Upper Tribunal.
The Neverending Story
Two agencies have played a key role in the case of Julian Assange: the Swedish Prosecution Service (SPA) in Stockholm, which conducted an investigation on allegations of rape which remained paralyzed in its preliminary stage for seven years and was finally dropped last May, and the Crown Prosecution Service (CPS) in London, which provided SPA with support on the Assange case given that Assange has been in London since 2010 despite being under investigation in Sweden.
It is the Crown Prosecution Service that la Repubblica has been challenging before the First-tier Tribunal in order to obtain, among other documents, the full correspondence between the SPA and the CPS and between CPS and the US government. In fact, Julian Assange has always been concerned he could be extradited to the US and prosecuted together with his staff for publishing classified documents. It was this concern which first made Assange oppose extradition to Sweden tooth and nail and then, even when the Swedish investigation was dropped, it was this very same concern which kept him inside the Embassy, where he still is.
Trench warfare
In the last two years, la Repubblica has used FOIA to ask the Crown Prosecution Services for copies of the full set of documents, but we did not obtain anything: not a single page of documents. It was only after we opted for litigation that the CPS released 792 pages of documents so heavily redacted that they are essentially useless. Furthermore, a few days before the hearing, the CPS informed us that all the emails of Mr. Paul Close - the CPS lawyer who handled the Assange case from the very beginning - have been deleted by the CPS, which was unable to provide us with any convincing explanation as to why historical records about a highly controversial case which is still ongoing have been destroyed forever.
This week, more bad news: the First-tier Tribunal chaired by Mr. Andrew Bartlett QC has dismissed our appeal, arguing that we have no right to access the full correspondence between the Swedish and the British authorities, because this kind of communication concerns an extradition process and although this extradition proceeding has collapsed, the British authorities' interest in protecting the confidentiality of the extradition process outweigh the public interest to know.
The Tribunal also ruled that we do not even have the right to know whether there is any correspondence at all between the British and the US authorities on the Assange case, because if such correspondence does exists, it is likely to be "an inquiry about possible extradition or a request for actual extradition or a follow-up to such a request": releasing any such correspondence would be likely tip off Julian Assange.
Extraditing a publisher or a criminal? Not all extraditions are alike.
Though the First-tier Tribunal's verdict is an outright dismissal of our appeal, it still contains some interesting and important nuggets: the Tribunal does not question the status of WikiLeaks as a media organization "which publishes and comments upon censored or restricted official materials involving war, surveillance or corruption, which are leaked to it in a variety of different circumstances". This could sound of little interest, but it is important considering the vitriolic attacks experienced by WikiLeaks throughout the last year, with characters like Mike Pompeo, the CIA head nominated by Donald Trump, calling WikiLeaks "a hostile intelligence service".
In our appeal against the Crown Prosecution Service, we have been represented by two brilliant London lawyers, Estelle Dehon and Jennifer Robinson of the Cornerstone Barristers and Doughty Street Chambers law firms respectively. "It is important that the Tribunal acknowledged that Mr. Assange is "the only media publisher and free speech advocate in the Western world who is in a situation that a UN body has characterized as arbitrary detention"", Jennifer Robinson tells la Repubblica, "The Tribunal also acknowledged that the matter has dragged on for a long time, with high cost to the public purse, which is a legitimate public concern and a controversy that must be understood for the public's benefit".
However, despite these important nuggets, the verdict appears to deal with the risk of Julian Assange being extradited to the US without any concern for his status as an editor of a media organization: according to this verdict, the founder of Wikileaks has no right to know if there is an extradition request from the US due to the publication of secret US government documents, just as a drug dealer or mafioso has no right to receive tip-offs on an extradition request. This conclusion should fuel debate in our democratic societies: is it legitimate to equate the extradition of a publisher prosecuted for his publications to the extradition of a criminal? Are all extraditions alike?
"Progress has been made", Estelle Dehon tells la Repubblica,"because the Tribunal accepted that the circumstances of the case raise issues of human rights and press freedom", Estelle Dehon tells la Repubblica, "The Tribunal also agreed that there is a significant public interest in disclosing the information, in particular to increase understanding of how the CPS handled the extradition process and its relationship with a foreign prosecuting authority. It is disappointing that the Tribunal found this significant public interest to be outweighed. We are considering the reasons provided by the Tribunal, with a view to appealing"
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