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The Biden administration asked two United Kingdom High Court judges to overturn the British district judge’s denial of extradition of journalist Julian Assange this week during an October 27-28 appeals hearing in London. If extradited to the United States, the WikiLeaks founder would face 175 years in prison for exposing evidence of U.S. war crimes. Determined to bring Assange to trial in the U.S. on the indictment filed by former President Donald Trump, President Joe Biden’s Department of Justice (DOJ) is raising spurious issues on appeal.
On January 6, U.K. District Judge Vanessa Baraitser denied extradition because of the strong likelihood Assange would commit suicide if extradited to the U.S., where he would be held under onerous prison conditions. She relied largely on expert testimony by defense expert Michael Kopelman, emeritus professor of neuropsychiatry at Kings College London. Kopelman testified, “I am as confident as a psychiatrist ever can be that, if extradition to the United States were to become imminent, Mr. Assange will find a way of suiciding.”
The U.K. 2003 Extradition Act forbids extradition if “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.” Baraitser found the risk of suicide to be “substantial” or “very high,” and that it would thus be oppressive to extradite Assange to the U.S.
In its appeal, the DOJ claims that Baraitser should have disregarded Kopelman’s testimony because, in his preliminary report, he misled the court by not mentioning that Stella Moris was Assange’s partner, and they had two young children together. The DOJ is asking the High Court to reweigh the evidence that Baraitser assessed during the four-week evidentiary hearing in September 2020.
For the first time on appeal, the DOJ is providing conditional “assurances” that if imprisoned in the U.S., Assange 1.) would not be sent to the maximum-security prison ADX Florence in Colorado; 2.) would not be subject to onerous Special Administrative Measures that would keep him in virtual isolation; and 3.) could serve any custodial sentence he may receive in Australia. In order to excuse its tardy offer of these so-called assurances, the DOJ erroneously argues that the burden was on Baraitser to request such “assurances” from the U.S. before denying extradition.
All of the DOJ’s appellate arguments are disingenuous. Moreover, the DOJ should have raised these issues at the September 2020 evidentiary hearing, when they could have been tested by cross-examination.
Psychiatric Expert Kopelman’s Evidence
Baraitser accepted Kopelman’s testimony that Assange “suffers from a recurrent depressive disorder … sometimes accompanied by psychotic features, often with ruminative suicidal ideas.” Kopelman said that the “imminence of extradition or extradition itself would trigger a suicide attempt, but it was Mr. Assange’s mental disorder that would lead to an inability to control his wish to commit suicide.”
In citing her reasons for adopting Kopelman’s assessment, Baraitser wrote:
[Kopelman] assessed Mr. Assange during the period May to December 2019 and was best placed to consider at first-hand his symptoms. He has taken great care to provide an informed account of Mr. Assange’s background and psychiatric history. He has given close attention to the prison medical notes and provided a detailed summary annexed to his December report. He is an experienced clinician and he was well aware of the possibility of exaggeration and malingering. I had no reason to doubt his clinical opinion.
The DOJ is now arguing on appeal that Baraitser should have excluded Kopelman’s evidence (or afforded it less weight) because he omitted from his preliminary report that Assange has a partner, Moris, and they have two children. Kopelman was concerned about Moris’s anxiety about the privacy of her children. Both Kopelman’s subsequent report and his testimony at the extradition hearing did refer to Moris and their children.
There were concrete dangers that Kopelman was worried about when he made the decision to withhold the information about Moris and the children from his preliminary report. “They arose from real concerns about a risk to Stella Moris’ safety and privacy, and that of her children,” Assange’s lawyers wrote in their brief to the High Court. They included “the extreme measures of surveillance employed against Mr. Assange in the Ecuadorian Embassy, the targeting of Stella Moris and the children; and the discussions they participated in about kidnapping or poisoning him.”
Baraitser considered Kopelman’s two reports as well as his testimony before denying extradition. She acknowledged his initial concealment but excused it, writing:
I did not accept that Professor Kopelman failed in his duty to the court when he did not disclose Ms. Moris’s relationship with Mr. Assange…. In my judgment, Professor Kopelman’s decision to conceal their relationship was misleading and inappropriate in the context of his obligations to the court, but an understandable human response to Ms. Moris’s predicament…. In short, I found Professor Kopelman’s opinion to be impartial and dispassionate; I was given no reason to doubt his motives or the reliability of his evidence.
The defense brief cited the report of Professor Keith Rix, the U.K.’s acknowledged expert on the ethical duties of psychiatric experts. Rix opined that Kopelman acted “professionally,” “responsibly,” and “exercised appropriate and reasonable caution” in not disclosing the relationship with Moris and the children in his first report.
Kopelman’s testimony was corroborated by the evidence of defense expert Dr. Quinton Deeley, an experienced developmental psychiatrist. Deeley stated that Assange’s Asperger’s syndrome increased the risk that he would commit suicide if faced with the prospect of extradition to the U.S.
The DOJ is seeking to relitigate the issue of Kopelman’s credibility and is asking the High Court to reassess the weight to be given the evidence of the defense experts versus the prosecution’s experts. As Assange’s lawyers wrote in their appellate brief, it is a “well-established principle that the appellate court should respect the competence of the [district judge] to determine for herself the issues of the reliability and weight of the expert witnesses she herself heard.”
Furthermore, at the hearing before the High Court, the defense cited recent new revelations about the CIA’s plotting to kidnap or assassinate Assange to further corroborate Kopelman’s opinion. Defense attorney Edward Fitzgerald told the justices, “There are great grounds for fearing what will be done to him given the revelations of surveillance in the embassy and plots to kill him.”
The DOJ also maintained that the extradition decision must be based only on Assange’s present mental state and cannot make a prediction about what it will be if he is extradited. But Fitzgerald cited the case of activist and computer scientist Lauri Love, in which the High Court used the same approach that Baraitser did in the Assange case. Love also has been diagnosed with depression and has Asperger’s, which is correlated with a reduced capacity to resist suicide. And there was psychiatric testimony in both cases that onerous conditions in U.S. prisons would exacerbate their suicide risk.
The High Court judges who presided at the appeals hearing in Assange’s case were Lord Chief Justice Ian Burnett and Lord Justice Timothy Holroyde. Burnett, the most senior judge in England and Wales, ruled with another judge to reject the U.S. request for extradition in the Love case, also because of high risk of suicide. Holroyde was one of two judges who ruled on August 11 to allow the U.S. to expand its grounds for appeal in the Assange case.
The defense presented considerable testimony at the evidentiary hearing that if Assange was extradited to the United States, he would be subject to Special Administrative Measures — which are onerous conditions that would keep him in virtual isolation — and he would be held at ADX Florence.
“Throughout the 1½ years of these proceedings below, (a) the defence evidence squarely raised the impact of either [Special Administrative Measures] or ADX (among other regimes of isolation) as one of the factors contributing to the risk of suicide, and (b) the US chose to challenge the substance of that evidence, rather than remove the risk with assurances,” notwithstanding repeated comments by defense witnesses on the “notable absence of assurances or guarantees,” Assange’s defense lawyers wrote in their appellate brief.
Now the United States is providing the court with “assurances” that if Assange is extradited to the U.S. and imprisoned, Special Administrative Measures will not be imposed on him, and he will not be held at ADX. The U.S., however, is reserving the right to impose Special Administrative Measures or hold Assange at ADX if Assange’s future behavior warrants it. Whether his future behavior warrants it will be decided by the CIA and the attorney general (who is head of DOJ). It was the CIA that planned how to kidnap or kill Assange, and it is the DOJ that is prosecuting Biden’s appeal against Assange. Chief Justice Burnett stated during defense counsel’s argument, “It’s not contested that the CIA is intensely interested in Mr. Assange.”
When one of the judges asked James Lewis, who represented the United States, why they didn’t make these assurances before Baraitser issued her ruling, he replied disingenuously, “It was our position that it was highly unlikely he would ever be put in [Special Administrative Measures] so opportunity never arose” during the evidentiary hearing.
Even if Assange is not subject to Special Administrative Measures or held at ADX, he will nevertheless be placed in pretrial administrative segregation, which bears “strong similarities with respect to isolation and sensory deprivation” to Special Administrative Measures and, once they are imposed, there is no reasonable likelihood of challenge, according to testimony at the evidentiary hearing. Whistleblower Chelsea Manning, who provided the documents that WikiLeaks published, was being held under administrative segregation when she attempted suicide.
Post-conviction, Assange would be held “under substantially similar conditions of isolation at whichever unknown high security prison (if not ADX),” the evidence showed. That could be a Special Housing Unit, High Security Unit, Special Management Unit or Communication Management Unit. “All of these regimes, especially in combination, constitute long-term and extreme isolation,” according to the testimony, and they carry the same “well known risks which solitary confinement poses to the mental health of those subjected to it for prolonged periods.”
During his argument for the defense, Mark Summers stated, “The evidence is overwhelming that regardless of [Special Administrative Measures], and regardless of the ADX, if extradited, Julian Assange is surely headed for extreme isolation, pre- and post-trial.”
The United States also says it will not object to Assange serving any custodial sentence he may receive in Australia. Summers cited a case in which the U.S. reneged on its assurances that Spanish drug trafficker David Mendoza Herrarte could serve his prison sentence in Spain if he was first extradited to the U.S. for trial. The U.S. retorted that the prosecutor had just assured that Mendoza could apply for a transfer to Spain and the DOJ denied the application. Moreover, the U.S. cannot guarantee that Australia would consent to host Assange’s incarceration.
It will be several weeks before the High Court issues its ruling on Biden’s appeal. The losing party can ask the U.K. Supreme Court to review the case.
More than two dozen press freedom, civil liberties and international human rights groups, and people around the world, are protesting the persecution of Assange. This case is a bellwether for the future of investigative journalism and the survival of the First Amendment right to freedom of the press.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Assange Defense.