If kicking the can down the road was an Olympic sport, the judges in the Assange case would be gold medalists. 

The High Court this week had one job: to decide whether Julian Assange should be granted a full appeal hearing or whether he should be immediately extradited to the US to face trial. Given two clear options they decided to do neither. Instead, with Assange approaching five years in Belmarsh high security prison, they decided to wait for even longer before making a final decision.

This latest delay is because the Court has asked the US government to supply ‘assurances’ that if Assange is put on trial in the US, he will be treated as if he were a US citizen, not a foreigner; that he will be guaranteed First Amendment freedom of speech protections; and that he will not face the death penalty. If the US fails to provide such assurances, then the judges will reconvene and grant a full appeal hearing. If its assurances satisfy the Court, then the extradition will proceed. All this will be argued through at yet another hearing on 20 May.

It is, of course, a relief that Assange was not bundled onto a plane and sent to a US Supermax prison this week. But much else about this judgement is wrong. The endless delays are now habitual and are their own kind of torture for Assange. And the process of asking the prosecuting authority to give their word that they will behave well, despite all the evidence to the contrary, is deeply flawed.

The US government has already used a key witness who has admitted perjury, spied on Assange and his lawyers, and planned to kidnap or assassinate him. These are not the acts of people who can be relied on to be honest in their intentions towards the person they have pursued for years, on whom everyone from Donald Trump, perhaps soon to be president again, to the head of the CIA has heaped abuse.

Moreover, Assange is to be tried under the US 1917 Espionage Act, the first journalist ever to be so. The whole US case is based on treating Assange as a foreign spy. This was the meaning of then-CIA director Mike Pompeo’s attack on WikiLeaks as a ‘hostile, non-state, intelligence agency’. But the assurances that the High Court is demanding amount to insisting that Assange will be tried like an American citizen and a journalist would be, with full First Amendment rights. In other words, the judges are asking the US to abandon the whole framework of the case against Assange.

The Court must surely know that whatever assurances are given — and of course, the US would swear black was white if it resulted in delivering Assange to a US prison — they will not be acted on and should never be believed.

But perhaps the real significance of the further delay is political. This has always been an intensely political case, abandoned by Obama and restarted by Trump. It now faces considerable opposition from the Australian government and from lawmakers across the globe. There are vocal and well-supported campaigns for Assange in the UK, across Europe, in Latin America, and increasingly in the US. 

There must now be very real concerns in both the Biden camp and among Trump campaigners about whether they want the most significant trial concerning freedom of the press to come to a head during the final stages of the US presidential race. This might explain what lies behind the rumours that the US is considering a plea bargain deal that will allow Assange to return to Australia if he admits guilt.

Many in the Washington bubble must be hoping the UK courts can make the problem go away. However, the worst way of doing so would be a prolonged full hearing on appeal, which is one possible outcome if the US’s assurances are deemed too weak.

This is not because Assange does not deserve a full appeal hearing. He does. So far, his case has only had a full hearing in the original magistrates court, the lowest court in the UK system, which normally hears appeals against parking fines. A full hearing in a higher court would be the least this case deserves.

But even if US pledges are dismissed, a full hearing will not happen. This week, the judges only allowed an appeal on three of the twelve points of appeal that Assange’s lawyers put before them. Again, they rejected public interest and political defences for Assange’s actions. That’s why the US is being asked to clarify its undertakings on only three issues. So any appeal will also be very limited.

This in itself is self-contradictory. The High Court is simultaneously refusing to recognise objections to extradition based on Julian Assange’s political opinions while demanding that the US assure him of First Amendment rights, which are precisely the rights which protect freedom of political expression.

All this means that Assange’s fate cannot be left in the hands of the courts. It is public campaigning and political pressure that gained this reprieve. Only an intensification of that pressure can convince the political establishment, both here and in the US, that it will be more politically painful to continue the persecution of Julian Assange than to abandon a case that should never have been brought.