There is a judge in London. The British authorities with the Crown Prosecution Service must confirm whether or not the service holds information on how, when and why they deleted crucial documents on the Julian Assange case and, if they do hold such information, they must either supply it to us or deny it to us, identifying on what grounds the information is being withheld.
This order was just issued by the London First-tier Tribunal chaired by Judge Foss, in a ruling (read) that sides with our battle for truth based on the Freedom of Information Act (FOIA), the law that allows citizens access to government documents.
For more than nine years we have been trying to obtain the full documentation on the Julian Assange and WikiLeaks case, and after discovering that part of that documentation was destroyed in 2017, we have been trying to investigate why it was destroyed, to determine if there is some way to retrieve it, or if it is now permanently lost.
Judge Foss has ruled that if the Crown Prosecution Service (CPS) authorities do not comply with her order by February 21st, their refusal could lead to contempt proceedings. Representing us in this legal battle since 2017 is a first-rate FOIA specialist, barrister Estelle Dehon, with the London chambers Cornerstone Barristers, who comments on Judge Foss’s ruling as follows: “The Tribunal concluded the CPS likely still holds some information explaining what took place. Hopefully that will, finally, be disclosed.”
Why the truth still matters, even if Julian Assange is no longer in prison
Julian Assange is now free: after a legal and judicial saga involving three U.S. administrations – those of Obama, Trump, and Biden – the WikiLeaks founder was allowed to leave the UK’s harshest prison, London’s Belmarsh prison, last June. After fourteen years no longer walking the streets a free man, the United States let Assange go. But not without demanding their last pound of flesh: an admission of guilt. The WikiLeaks founder was placed before a choice: either plead guilty, or risk spending the rest of his days in a maximum-security prison in the United States for publishing secret U.S. government documents revealing war crimes, torture and atrocities, from Afghanistan to Iraq to Guantanamo.
As the New York Times put it, “The agreement means that for the first time in American history, gathering and publishing information the government considers secret has been successfully treated as a crime. This new precedent will send a threatening message to national security journalists”.
But that plea deal is not only a sword of Damocles hanging over the heads of reporters should they, like Assange and his WikiLeaks colleagues, reveal state criminality in the future; it also places a tombstone on the truth for the WikiLeaks founder. Indeed, in accepting a plea agreement with the U.S. government, the Australian journalist was also forced to give up his right to uncover the facts behind his persecution using FOIA.
Assange is free, but the truth is still far away and must be sought before, with the passage of time, it is buried forever. Because it matters, and not just to him and his organization. The truth matters first of all because, although the Assange case is closed, there is no definitive confirmation that the U.S. government’s investigation into WikiLeaks is completely closed, and secondly because the persecution of WikiLeaks has been one of the most extensive in the history of Western journalism. Persecution riddled with grave abuses, from the arbitrary detention of Assange, established by the United Nations Working Group on Arbitrary Detention, to the CIA plans to kill him, still under investigation by the Spanish judicial authority. If, in a democracy, a news organization and its founder can suffer abuses of this magnitude without any of the responsible authorities being held to account, other journalists will be subject to them, creating a climate of intimidation and impunity.
A wall of darkness
Since August 2015, we have been trying through FOIA to obtain the full documentation on the Assange and WikiLeaks case. Four governments have been denying it to us for almost a decade: the United Kingdom, the United States, Sweden and Australia. The wall of darkness put up by the four governments gives a measure of how inconvenient the truth about this case can be. In our effort to break it down, we have been forced to resort to a legal battle in the courts and tribunals of the United Kingdom, United States, Sweden and Australia, requiring considerable effort and tens of thousands of euros, despite the fact that the lawyers representing us have always worked at reduced fees, if not in some cases completely pro bono. Without the support of a grant for investigative journalism from the David Reva and Logan Foundation, which has paid most of these legal fees – after the initial fees were paid from our own pocket – this journalistic work would not be possible.
One of the authorities that has played a crucial role in the case from the beginning is the Crown Prosecution Service (CPS), which prosecutes criminal cases in England and Wales. The CPS is the public authority that handled the requests for Julian Assange’s extradition from both the U.S. authorities and the Swedish Prosecution Authority when, in 2010 – not even four weeks after WikiLeaks began publishing secret files on the war in Afghanistan – he ended up in a rape investigation in Sweden. Today, of course, all investigations against Assange are closed.
Our investigation with FOIA uncovered crucial information, including the fact that, from the very early stages of the Swedish case, it was the Crown Prosecution Service that advised the magistrates with the Swedish Prosecution Authority (SPA) against the only legal strategy that could have brought the case to a rapid resolution, i.e. questioning Julian Assange in London, rather than insisting on his extradition. This legal advice was provided to the Swedish magistrates by Mr. Paul Close, a lawyer with the Special Crime Division – the division of the Crown Prosecution Service that prosecutes high-profile cases. Mr. Close’s advice helped create the legal and diplomatic quagmire that kept Assange arbitrarily detained in London from 2010. Some of the key decisions on the case, such as advising the Swedish prosecutors not to question Assange in London, were made by the Crown Prosecution Service between 2010 and 2013, when the CPS was headed by Keir Starmer, then Director of Public Prosecutions and now prime minister of the British Labour government. What role, if any, did Starmer play in the Assange case?
The highly anomalous handling of the Swedish case by both the Swedish prosecutors and the Crown Prosecution Service resulted in justice for no one, contributed to the devastation of Assange’s health, cost British taxpayers at least 13.2 million pounds to keep Assange under surveillance from 2012 to 2015, resulted in the UN Working Group on Arbitrary Detention decision that Sweden and Britain had arbitrarily detained Assange from 2010 and, finally, led the UN Special Rapporteur on torture, Nils Melzer, to claim 50 perceived due process violations and to denounce that Assange was being psychologically tortured.
US-UK conversation on Julian Assange and WikiLeaks? Shrouded in secrecy
To unearth what happened behind the scenes, access to correspondence between the Crown Prosecution Service and authorities in the United States, Sweden, and Ecuador is essential. Yet every attempt we have made to obtain the exchange between the British and American authorities on the case has failed. That exchange remains completely shrouded in secrecy. In nearly a decade of our battle, neither Washington nor London has ever released a single page to us of their relative emails or document exchanges. And no judge has ever ordered them to do so.
As regards the correspondence on the case between Britain and Sweden, on the other hand, after years of legal battle in London and Stockholm we did obtain a few hundred pages, but those pages contain gaps related to crucial stages, such as the period when a warrant for Mr. Assange’s arrest was issued, or when Mr. Assange took refuge in the Ecuadorian Embassy, or when Ecuador granted him asylum. It is simply not credible that the Swedish and British authorities did not communicate during those times. When, in November 2017, we asked for copies of documents related to those stages, the Crown Prosecution Service replied: “All the data associated with Paul Close’s account was deleted when he retired and cannot be recovered”.
Since that admission, we have been trying to obtain explanations from CPS authorities on how, when and why the account was deleted. The Crown Prosecution Service has always maintained that the destruction was carried out in accordance with standard procedures, when attorney Paul Close had retired, and in November 2017 Judge Andrew Bartlett of the First-tier Tribunal ruled that there was “nothing untoward” about its destruction.
To British Labour Party MP John McDonnell’s request to know if there is a backup system to retrieve deleted accounts, the Crown Prosecution Service replied that there is not, and that one “cannot ‘know’ that all relevant emails were transferred to the case file” before Close’s account was destroyed, though that was “standard practise”. Last May, a cross-party group of Members of Parliament, which included Labour MP John McDonnell, Green MP Caroline Lucas, Jeremy Corbyn and Conservative MP David Davis, submitted a request for an inquiry in a letter to the chair of the Justice Select Committee of the British Parliament. A few days later the parliament was dissolved, however, and new elections were held, so the initiative did not move forward.
Judge Foss: the Crown Prosecution Service has not undertaken adequate searches
The British authorities at the Crown Prosecution Service are not the only ones who destroyed the documents: in February 2023, we learned that the Swedish Prosecution Authority had done so as well. And we learned this only because their English colleagues at the CPS affirmed this during a hearing in our legal battle. For years, the Swedes too had put up a brick wall to our requests and appeals in the Stockholm courts to obtain the documents the Swedish Prosecution Authority stated did not exist. They did not exist because they had destroyed them.
As for the Crown Prosecution Service, it was not until June 2023 that the first crack in the wall of secrecy appeared, when the First-tier Tribunal chaired by Judge O’Connor ordered the CPS authorities to confirm whether they hold information about the destruction of documents.
After this order, for the first time the authorities with the Crown Prosecution Service brought out a document which, going by their version of events, justified having destroyed the documents: it stated that email accounts would be deleted thirty days after a staff member had left their post. Thirty days? And yet they had always claimed that Paul Close’s account was deleted three months after he retired. And if that document really did show the documents had been destroyed in keeping with the rules, then why had no one ever mentioned this in six years, and why had no one ever thought of giving me a copy, despite my repeated requests and appeals in the British Tribunals?
In order to understand when that document was created, it is important to have the associated metadata, but the CPS refused to release it to us, because we did not ask for it when we submitted our request.
While judge Foss ruled against us when it comes to the metadata, her ruling is a full victory when it comes to the destruction of documents: “Overall, based on the evidence before us”, writes judge Foss in her ruling, “our concern is that over a number of years the CPS has not properly addressed itself at least to recording, if not undertaking, adequate searches in relation to the CPS lawyer’s emails”.
This time, will the Crown Prosecution Service finally shed light on that crucial documentation in the Julian Assange case?
