On May 31, 2024, Alexandra Marshall, in her informative email message to subscribers of The Spectator Australia, noted that:
‘Assange is an interesting topic – in part because it divides conservatives right down the middle. I’d be interested to hear from you … to free Assange or put him on trial? Where do you stand?’
This is an enticing invitation that conservatives might want to respond to enthusiastically. As staunch conservatives – an admission which will not come as a surprise to the readers of this August publication – we are keen to argue that Assange’s predicament is not an issue that should necessarily divide conservatives.
The ‘interesting topic’ that Marshall refers to is caused by different values that conservatives seek to protect. Typically, conservatives stress the importance of maintaining the integrity of state secrets, needed to ensure social stability and protect the lives of those involved in combat. Hence, they may loathe those who publish state secrets, the disclosure of which might actually or potentially reveal the identity of combatants and endanger their lives. But conservatives also favour freedom of speech and support the publication of information that is in the public interest, especially in cases involving alleged state corruption.
The facts of Assange’s long-running judicial saga need not be rehashed here in detail because most readers would be familiar with them. Bradley Manning (now Chelsea Manning), according to Wikipedia:
…was convicted by court-martial in July 2013 of violations of the Espionage Act and other offenses, after disclosing to WikiLeaks nearly 750,000 classified, or unclassified but sensitive, military and diplomatic documents.
WikiLeaks, co-founded by Assange, published these documents. Chelsea served seven years in prison, but President Obama later pardoned Manning. We now have the situation whereby the person who obtained the documents is free, but the publisher of WikiLeaks is still incarcerated. Assange has effectively been imprisoned for 12 years; 5 years in the Belmarsh prison and 7 years in the Ecuadorian Embassy in London in self-imprisonment. The protracted incarceration of Assange motivates commentators to consider whether Assange is a journalist or a whistleblower. Although these issues are important, they are not the focus of this opinion piece, which deals with the question as to why there is a perceived or actual disagreement among conservatives regarding Assange’s predicament.
On March 26, 2024, The UK’s High Court of Justice, King’s Bench Division, released its approved judgment in the extradition case of Julian Paul Assange. The judgment prolonged the uncertainty surrounding Assange’s fate. Assange’s legal team had nine arguments as to why the court should reject the American extradition request. However, the Court failed to reach a conclusive decision, requesting further information from the respondents (the Government of the United States, and the Secretary of State for the Home Department), thereby merely delaying Assange’s extradition. Although assurances were filed by the United States that Assange would be allowed to rely on the First Amendment free speech provision of the Constitution, and would not face the death penalty, the High Court decided on May 20 that Julian Assange will be allowed to appeal against the proposed extradition to the United States. Simon Crowther, who is the legal advisor for Amnesty International, commenting upon this latest decision, opines that ‘the High Court’s decision is a rare piece of positive news for Julian Assange and all defenders of press freedom’. He continues:
The USA’s ongoing attempt to prosecute Assange puts media freedom at risk worldwide. It ridicules the USA’s obligations under international law, and their stated commitment to freedom of expression. In trying to imprison him, the US is sending the unambiguous message that they have no respect for freedom of expression, and that they wish to send a warning to journalists and publishers everywhere: that they too could be targeted, for receiving and publishing classified material – even if doing so is in the public interest.
For Crowther, therefore, extradition to the United States, if it were to proceed, would endanger freedom of speech. This must be a significant concern for conservatives because, once this basis right to freedom of expression and freedom to publish sensitive information is diluted, journalists and commentators are on a slippery slope, which accelerates each time the government proposes to further curtail these rights.
In Australia, and elsewhere, we have already embarked on this perilous journey with the adoption of anti-vilification legislation, hate speech legislation, legislation banning Nazi symbols, disinformation and misinformation laws, laws penalising even prayer in the vicinity of abortion clinics, banning any criticism of prohibition of conversion legislation, ostracising religious expression in the public forum, suppression of free speech during the Covid tyranny, obligations imposed on priests to disclose incriminating information received during the confessional, and so on. The list is endless.
Naturally, we are not advocating total and uncontrolled freedom of speech – indeed, in our book The Unlucky Country, we have a section on the limits of free speech – but freedom of speech and publication should be cherished to the greatest extent possible. The reason is that, in prosecuting Assange, the United States is seeking to entrench its powerful position against any person who might want to seek to reveal governmental shenanigans – this is undoubtedly a public interest issue. Conservatives who favour extradition may not fully realise that such action would strengthen the power of an already all-powerful state that, therefore, would be ideally placed to further limit a person’s freedom of expression and publication. Do we want such an outcome?
Assange’s legal team argued that the American extradition request was made for the purpose of prosecuting the applicant for his ‘political opinions,’ which is prohibited by section 81(a) of the UK’s Extradition 2003 Act. But the 2003 Act does not prohibit extradition for ‘political offences’. Although prohibition of extradition for ‘political offences’ is found in the UK-US Extradition treaty, it has not been incorporated into the 2003 Act, and therefore is not part of the UK’s domestic legal system. Relevantly, the Court found that the concepts of ‘political opinion’ and ‘political offence’, while there is a degree of overlap, are separate. Thus, although the 2003 Act ‘precludes extradition where extradition is for the purpose of prosecuting the requested person on account of their political opinions’, it is silent on the issue of preventing extradition for a ‘political offence’. Consistent with this reasoning, it is plausible that commentary on the United States’ intervention in Iraq might be regarded, and protected, as ‘political opinion’, but that the publication of sensitive documents which might endanger the war effort is an unprotected ‘political offence’. Although this reasoning has superficial appeal, it is an example of legalistic sophistry and an insidious attempt at prohibiting Assange’s right to publish sensitive government documents that are in the public interest.
In this context, it is necessary to consider whether the publication of sensitive documents – a political offence – is but an example of the expression of a ‘political opinion.’ This issue is relevant because, if so, the concepts, rather than being separate, would overlap and the freedom of opinion provision of the First Amendment to the United States Constitution could be interpreted as extending its protection to ‘political offences’ that communicate a message to the public. This consideration is certainly germane to Assange’s case because the publication of the documents allegedly exposed American transgressions in Iraq.
On this view, Assange is a political prisoner, and the extradition should not proceed because the alleged political offences constitute the expression of political opinions.
But even if the arguments above do not convince all conservatives, surely conservatives would be able to agree on the fact that, in any event, Assange has already been incarcerated for twelve years and that enough is enough. Indeed, politicians, in Australia and abroad, already favour this view. For example, as reported by Senator Alex Antic, even President Trump is considering pardoning Assange. if elected in November. The extradition proceedings have already taken far too long and are an embarrassment to people of goodwill who expect a fair and speedy trial.
Assange should be allowed to return to Australia, regardless of the legal nature of the serious allegations made against him. The constant rejection of his legal team’s arguments and the procrastination involved in the extradition procedure no longer serve the interests of justice. They do not serve any purpose anymore because Assange is now a political prisoner. Furthermore, this process could only become worse if conservatives were to argue that extradition is an appropriate and proportionate response to the release of sensitive governmental documents, even if they have been published in the public interest. Extradition could only make the state stronger and more determined to repress freedom of expression and to curtail the publication of sensitive documents.
If there is one thing these last years have taught us, it is that we should not trust government authorities that hide information from the public. The preference for deceit in the pursuit of unrestrained power has now become one of the hallmarks of the present ruling classes. This is why fighting for the protection of free speech and freedom of the press is so desperately necessary, especially in these days of arbitrary attempts to suppress political dissent.
To conclude, Assange’s case vividly demonstrates the importance of a free press within democracies, and that our governments are failing to protect the rights and safety of the press. Without our support for Assange, how are journalists supposed to report on matters of serious public interest that expose governmental corruption and gross violations of human rights? Surely, as conservatives, don’t we want freedom of speech and publication to prevail in Assange’s case to at least minimise the ever-growing power of an all-powerful state?
Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University.
Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia.
Moens and Zimmermann are the authors of ‘The Unlucky Country’ (Locke Press, 2024).