By Phoebe Cook
Jennifer Robinson is an award-winning Australian barrister who practises at Doughty Street Chambers in London. She has appeared before the International Court of Justice, the European Court of Human Rights, and regularly addresses the UN Human Rights Council in Geneva.
However, to much of the public, she is most well- known as Julian Assange’s longstanding counsel, regularly appearing in the media to discuss the progress of his case and its implications for press freedom.
In June 2024, Jen secured Julian’s release after negotiating a plea deal with the US. She appeared before the world’s media in Saipan and Canberra discussing the deal – and the support from the Australian government – that led to Julian’s release.
The updated and unredacted edition of How Many More Women?, which she co- authored with Dr Keio Yoshida, came out in September 2023. It explores how the law is used to silence victim-survivors speaking out about gender-based violence.
I interviewed Jen about the legal side of Julian’s case – how a complex multi-jurisdictional matter was managed and run, and the legal implications of his prosecution.
Q: Thank you for making the time to discuss the case. You’ve discussed the political implications of the case exhaustively in the media, but I would like to try and narrow in on the legal side of things, as challenging as it is to separate the legal from the political. I have tried to come up with questions that you won’t have been asked before in the media.
A: I’m looking forward to this and to retiring my talking points that I have been repeating, ad nauseum, for the past 14 years!
Q: The United Kingdom is a member of the European Convention on Human Rights (ECHR), which is incorporated domestically in the Human Rights Act 1998. How much of an impact did the UK’s membership of the ECHR have on the arguments you were able to run?
A: It played a very significant role. There is a very vibrant human rights law sector in the UK, because there is direct incorporation of this human rights treaty, which means that, as lawyers, we have more scope to protect our clients’ rights than we do here in Australia.
For example, lawyers were able to stop the proposed scheme of offshore detention in Rwanda because of the risks posed to asylum seekers’ human rights; while we’ve had two decades of offshore detention causing immense and irreversible harm in Australia.
In Julian’s case, because of the Human Rights Act, we were able to argue that his extradition would violate Julian’s rights to freedom of expression, to be free from inhumane treatment, and to receive a fair trial. Because of this, we were able to make arguments about the substance of what Julian was being pursued for – his journalism and the public interest in WikiLeaks’ publications – and what the material he received from Chelsea Manning showed the world.
Q: You also had the prospect of appealing to the ECHR if domestic avenues were exhausted and asking for interim measures to halt extradition. Was Julian in a much better position than someone in Australia would be fighting the same case?
A: Yes, not just because of the human rights arguments we were able to run, but because we also had recourse to the European Court and its preliminary measures jurisdiction.
It’s a very powerful stopgap against serious violations of human rights, which would have barred the UK from extraditing Julian until we had our appeal in the European Court heard. It is not a right of appeal – it is at the discretion of the European Court – but we considered we had a strong case for the Court to intervene if Julian’s extradition was ordered.
The threat of this also raises the political cost to the governments concerned – I don’t think the UK or the US would have wanted their conduct in this case, or its implications for free speech, reviewed before the European Court.
Q: Julian has had many lawyers come and go over the years, but you have been the one constant. How significant was it having a point of continuity on the case? Were you often able to flag things that others on the team wouldn’t have been aware of?
A: It was really important – first and foremost because it has meant Julian has had a lawyer who has been with him throughout this ordeal, with involvement in or oversight over every case he was involved in, which means I could help him manage the many different cases around the world and brief the new lawyers coming in on all aspects of his case.
We have worked together for so long, with Julian and the key people around him, that it made managing crises and obstacles much easier – over time and through experience, we instinctively knew what we had to do and how to work together through it.
This became even more important when Julian was so isolated and unwell. But it also helped because it allowed us to develop longstanding and trusting relationships with governments, politicians and diplomats – in Australia and around the world, who in the end were crucial to resolving Julian’s case. In a case so political and polarising, and so fraught, having a longer-term perspective and strategy was essential – we had a long-term strategy and, sadly, that’s what it took to get this case resolved.
I have been working with Julian to protect him from US extradition since 2010, the indictment was issued in secret in 2017 under Trump, and after he was arrested in 2019 on that indictment and extradition request, we have been fighting it in the courts for over five years.
Q: By my count, this case involved consular law, UK extradition law, European human rights law, US criminal law, US constitutional law, international law and international human rights law, with complaints to the UN Working Group on Arbitrary Detention, the UN Special Procedures and the Inter-American Court of Human Rights. How is such a complex case coordinated?
A: We had a large legal team, involving legal teams in different jurisdictions with specific skill sets working on each different case and on different aspects of the case. This is not unusual in international legal practice.
But this was on a bigger scale and working in a very complex political and geopolitical environment – where we had domestic, regional and international proceedings that were often being fought concurrently.
This required ensuring we all got to grips with the different moving parts and how each case affected the others – and Julian’s interests more broadly. It also required a thoughtful and sensitive political and advocacy strategy alongside the litigation and coordination to ensure the legal and non-legal methods of advocacy and outreach supported each other and fit within the overall strategy.
It was very challenging, but I enjoyed it – it is rare to have the opportunity to work on such an unprecedented case, which traverses so many areas of law – and where so many of the cases we fought were ground-breaking and precedent-setting. It’s been fascinating.
Q: You often said that Julian’s case was a political one and that it needed a political solution. And you were right – a politically negotiated plea deal saw Julian freed. But what role did the ongoing proceedings in the UK play in that negotiation?
A: There are many factors, both legal and political, that contributed to our ability to negotiate the plea deal and Julian’s release. But I do think the extradition challenge in the UK created a turning point in the negotiations.
In that challenge, we had argued that Julian would not be entitled to rely on the First Amendment in his defence if extradited, which would be a grave violation of his right to freedom of expression. This was based on the Human Rights Act, which is incorporated into the Extradition Act, as a grounds to challenge extradition.
The US prosecutor had argued that as a non-US citizen, Julian could not rely on the protection of the US Constitution, and we showed that position was reflected in US case law. We won provisional leave to appeal against the order to extradite Julian to the US on this basis – but the Court first asked for assurances from the US that Julian would be able to rely on the First Amendment. It was obvious to us that the US government was not going to be able to provide a satisfactory assurance because of a simple legal principle: the executive cannot bind the courts.
As I argued in my advocacy to the Australian government, the US was very likely to lose the extradition case on this point. We have since learned from material leaked to the Washington Post that the US knew they were going to lose.
I think that was a big part of what drove the US to make the deal. But I also think the risk of what would happen if they won was also a factor: if we had lost, the US would have had an Espionage Act trial of a globally recognised and award-winning Australian journalist and publisher in the Eastern District of Virginia, in an election year, with all of the mainstream media intervening to set out their objections to it.
Whether they won or lost, the outcomes were not good for the US. This, combined with the fact that it was clear to them that the Australian government wanted this resolved, thanks to the representations made by our Prime Minister, Foreign Minister and Attorney-General, meant we were able to negotiate a deal for Julian that can only be described as a huge win in the circumstances.
The plea deal placed Julian in a better position than he ever would have been, even if he had won the extradition case. If he had fought and won the extradition challenge, he would have spent more time in prison until he won and, even then, would have only been protected from extradition from the UK, but not from anywhere else – the indictment would have remained live and he could have been extradited from any other country.
With this deal, he was immediately released from prison, returned home to Australia to be with his family, the indictment was removed, and the US agreed they would not seek to prosecute him for any of the other WikiLeaks publications, or anything related to Edward Snowden, up until the date of the agreement, and with no ongoing restrictions or conditions.
This means he can travel internationally – which he has just done to address the Parliamentary Assembly of the Council of Europe. It gave him his life back.
This deal would not have been possible had it not been for our global strategy for Julian, which was not just about law: it was a combined legal and political strategy that came together to ensure his freedom.
His freedom would not have been possible without the legal challenges we ran, the political outreach, public advocacy and community campaigning that brought the Australian government on side, and the broader geopolitical context.
Q: If the UK courts weren’t satisfied with the US assurances on the First Amendment, would that have been the end of the matter or could the US have appealed against that ruling? It always felt like there would be no end to the case traversing up and down the courts.
A: We would have been granted leave to appeal and if we won, the US could have applied for permission to appeal to the Supreme Court. If we ultimately lost in the UK courts, we would have applied to the European Court of Human Rights, and applied for preliminary measures to protect him from extradition pending the resolution of that appeal. European Court appeals can take many years to determine – so Julian could have been in prison for years to come while these appeal processes worked their way through the various courts.
Q: There are no defences under the Espionage Act, so it’s essentially a strict liability offence. The US was arguing that as a non-US citizen, Julian wouldn’t be able to rely on the First Amendment. Did that mean that extradition being ordered was as good as losing the case?
A: Julian being extradited to the US was our red line – under no circumstances did we want him being extradited to the US to face trial because we had evidence in the magistrate’s court hearing that Julian would not survive the prison conditions in US maximum security detention. The medical evidence showed it was a matter of life or death for him.
Beyond this, there would have been so many practical difficulties in defending a national security case like this in the US. It would have been difficult to take proper instructions and communicate with Julian in supermax facility he was held in. As a foreign lawyer without security clearance, I wouldn’t have been able to assist. US counsel requires security clearance and case files can only be handled in secure facilities, which you can’t discuss with your client.
Then looking at the technical legal arguments we would have run in the US, there is no public interest defence in the Espionage Act – so you cannot argue that the material he published, showing evidence of war crimes and human rights violations – was in the public interest and therefore protected.
As I’ve explained, the US was also arguing that he would not even be able to rely on the First Amendment and free speech protections because he is Australian – and a non-US citizen. It is not clear what the Supreme Court would have done with this case – even if we had got there – and that would have been years and years away by the time the case wound its way through the courts.
So, Julian would have been locked up in the darkest black hole of the US prison system, and for years, when the medical evidence showed it would cause his death.
So not only was it a very real possibility that we would lose in the US, setting a terrible precedent for the media and for journalists, but the cost to Julian in even chancing the US system was far too great to contemplate it as an option.
Q: The Espionage Act is so poorly and broadly drafted that Julian was in breach by receiving classified materials from Chelsea Manning even though he wasn’t a foreign agent. And technically, The Guardian, The New York Times, Der Spiegel and all the other WikiLeaks publication partners were also in breach for publishing the same material. Critics of the Act have pointed out that journalists who publish leaks from government sources would also be in breach, but they would never be prosecuted because they’re working with the government. When an overly broad law is applied in such a selective manner, is this primarily a political rather than a legal problem?
A: It is both a legal and political problem. The law is so broadly defined that it captures journalistic activity, whether you are Julian or a journalist at the New York Times. The fact Julian was targeted, when the rest of the media wasn’t, shows that this can be wielded politically.
The US government demonised Julian, casting him as something other than a journalist and publisher – with phrases thrown about like WikiLeaks was a ‘hostile non-state intelligence agency’ – to attempt to justify prosecuting Julian.
It was much harder politically for the Trump administration to go after The New York Times, which would have caused outrage among the media. But by singling out and demonising Julian, it was more politically possible to indict him.
The reality is that, by prosecuting Julian, the precedent being set was going to apply to The New York Times and everyone else. This was a case where public advocacy was crucial in highlighting how Julian had been singled out and how his actions were consistent with ordinary journalistic practice – and we had to make these points before any US trial – and in the media and our public outreach.
If we had waited for a US trial where these issues would be heard, it would be too late for Julian.
Q: Does Julian’s case mean that lawyers need to be advising their clients on archaic laws and looking beyond past practice as an indication of legal risk?
A: Lawyers need to advise clients about their worst-case scenarios, even if they have a low risk of happening. As my colleagues who are in-house counsel for US media organisations have warned, they have to advise their journalists that what they are doing is technically a violation of the Espionage Act, but it’s unlikely the US government will ever prosecute them. But how is that any comfort?
The law is what it says and it only takes another Trump administration, or some other change of politics, to mean that journalists will be in the firing line again. By all accounts, Julian’s persecution and the example that was made of him is having its intended chilling effect.
We need a free press to hold governments to account – and it’s wrong that, in the US, journalists are having to technically break the law to report public interest stories, and just hope they won’t be pursued. That’s the effect of the Espionage Act.
Q: Has this prosecution already affected the risk appetite of news outlets?
A: Definitely. We are seeing a big decline in national security reporting, not just in the US but globally. The media business is struggling and it’s understandable that the bottom line is a key consideration in terms of what gets published – and defending a case like this costs into the millions, which is not sustainable for most outlets.
But between Julian’s prosecution in the US, and cases like the ABC and News Corp journalists being raided for reporting on Australian war crimes in Afghanistan, this reporting is difficult, risky – and expensive. And that’s bad for our democracies.
Q: In the eyes of the law Julian is a criminal, having received credit for over five years of time served in Belmarsh prison. And David McBride is in prison after being sentenced to almost six years in prison for providing the ABC with material which included evidence of war crimes. How can the legal profession push back against governments choosing to prosecute those who reveal war crimes, rather than those who commit them? Is this a problem of prosecutorial independence?
A: These prosecutions are both very problematic – and should never have been brought. They reveal a lot about what governments are willing to do to preserve their impunity and control a certain narrative about the West and its role. We can see the same impulse to avoid unpleasant truths – and accountability – in the efforts to control the information that is released about Australia’s actions in Timor- Leste. The prosecution of Bernard Colleary was another example of the overreach we have seen – another prosecution, brought under a Liberal government, that should never have been brought, and I was pleased to see dropped under this Labor government.
It is a shame Attorney-General Dreyfus didn’t also drop the case against David McBride. In Julian’s case, we know that the Obama administration hadn’t wanted to pursue Assange because of what was known as the ‘New York Times problem’, but the Trump administration then chose to go ahead.
When Biden came to power, and he was asked about dropping the case against Julian, the White House press office answer was that they would not politically intervene in the DOJ, despite the selective and political nature of the prosecution.
For the legal profession, I think we need to advocate for law reform. Then the exercise of prosecutorial discretion becomes moot – we should argue for changes to the law to better protect free speech in the context of national security. Australia has a raft of national security and defence legislation that creates offences imposing serious prison sentences for publishing national defence information. We should be talking about that.
Q: When Julian was released the idea of asking for a pardon was floated. Is this a priority or something to revisit further down the line?
A: At the moment, it’s really important that Julian’s time is his own – to recover, to rebuild his life and reconnect with his family. I’ve also done my job for him – he is free.
That said, I do think a pardon would be a strong message: it would make clear that the US is making clear, as a matter of policy, that prosecuting journalists and publishers is wrong. But they also need to change the law so that it can never happen again.
