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In a patently political decision, the U.K. High Court reversed the British lower court’s denial of extradition of WikiLeaks founder Julian Assange to the United States on a narrow ground, despite the recent revelations of a CIA plot to kidnap and assassinate him.
Assange was charged by the Trump administration with violation of the Espionage Act for revealing evidence of U.S. war crimes in Iraq, Afghanistan and Guantánamo Bay. He could be sentenced to 175 years in prison if he is tried and convicted in the United States. But instead of dismissing Trump’s indictment, the Biden administration continues to pursue the case against Assange, notwithstanding the grave threats his prosecution poses to investigative and national security journalism.
The High Court judges did not question U.K. District Judge Vanessa Baraitser’s conclusion that it would be “oppressive” to extradite Assange due to his mental health. Michael Kopelman, emeritus professor of neuropsychiatry at King’s College London, testified that Assange “suffers from a recurrent depressive disorder … sometimes accompanied by psychotic features, often with ruminative suicidal ideas.” He added 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.” Although the Biden administration challenged Kopelman’s credibility, the High Court affirmed Baraitser’s reliance on his testimony, which was corroborated by an experienced developmental psychiatrist, Quinton Deeley, who said Assange’s Asperger’s diagnosis means he is at heightened risk of suicide if extradited to the United States.
High Court Accepts U.S. Conditional “Assurances”
But the High Court said it was “satisfied” with the Biden administration’s conditional diplomatic “assurances” that Assange: (1) would not be subject to onerous special administrative measures (SAMs) that would keep him in extreme isolation and monitor his confidential communications with his attorneys; (2) would not be housed at the notorious ADX Florence maximum security prison in Colorado; (3) would receive psychological and clinical treatment in custody; and (4) could serve any custodial sentence in Australia. “It is submitted that on this basis alone, the [U.S.] appeal should be allowed,” the High Court judges concluded.
On January 4, after a three-week evidentiary hearing, Baraitser ruled that if Assange were extradited to the United States, he would very likely commit suicide due to his fragile mental health and the stringent prison conditions he would face. During the hearing, the U.S. government refrained from providing the so-called assurances it later offered. Once Baraitser issued her decision denying extradition, the Biden administration came forward with its assurances. But it left open a large loophole, stating that the assurances wouldn’t apply if Assange committed a “future act” that “met the test” for the SAMs. That unspecified eventuality would be based on a subjective determination.
“This is a travesty of justice. By allowing this appeal, the High Court has chosen to accept the deeply flawed diplomatic assurances given by the U.S. that Assange would not be held in solitary confinement in a maximum security prison,” Amnesty International’s Europe director Nils Muižnieks said. “The fact that the U.S. has reserved the right to change its mind at any time means that these assurances are not worth the paper they are written on.”
Although the United States has reneged on nearly identical assurances in the past, the U.K. High Court trusted its ally, the U.S. government, to make good on its pledge in the Assange case. “There is no basis for assuming that the U.S.A. has not given the assurances in good faith,” the High Court declared, calling them “solemn undertakings from one government to another.”
In accepting the U.S. assurances at face value, the High Court ignored evidence that even if Assange is not subjected to SAMs or housed at ADX, he will face equivalent forms of isolation. He would invariably be placed in pretrial administrative segregation, with isolation and sensory deprivation similar to the SAMs.
Moreover, after conviction, Assange would be held in very similar conditions of isolation at whatever high security prison to which he is assigned, whether or not ADX. He could be placed in a Communication Management Unit, Special Housing Unit, High Security Unit or Special Management Unit. In any of those placements, Assange would be held in long-term solitary confinement with the same attendant mental health risks as ADX.
Nowhere in its 27-page decision about Assange’s custodial treatment after extradition to the U.S. did the High Court mention the CIA plot to kidnap and assassinate Assange.
In 2017, WikiLeaks exposed the CIA’s hacking system of electronic surveillance and cyber warfare called “Vault 7.” The CIA called the exposé “the largest data loss in CIA history.” Mike Pompeo, Donald Trump’s CIA director, labeled WikiLeaks a “non-state hostile intelligence service.” CIA and administrative officials made “secret war plans” to kidnap and even kill Assange, according to an explosive Yahoo! News report published two months before the High Court ruling. Senior CIA and administration officials sought “sketches” and “options” for assassinating Assange. Trump himself “asked whether the CIA could assassinate Assange and provide him ‘options’ for how to do so,” the report says.
Biden Administration Hypocrisy in Defending “Media Freedom”
Two days before the High Court ruling,” U.S. Secretary of State Antony Blinken declared at the so-called Summit for Democracy, “Media freedom plays an indispensable role in informing the public, holding governments accountable, and telling stories that otherwise would not be told. The U.S. will continue to stand up for the brave and necessary work of journalists around the world.”
But by vigorously pursuing Assange’s extradition, the U.S. is doing precisely the opposite. The prosecution of Assange is the first time a journalist has been indicted under the Espionage Act for publishing truthful information. The United States has never prosecuted a journalist or news outlet for publishing classified information. If Assange is tried, convicted and imprisoned for doing what journalists routinely do, it will send a chilling message to journalists that they publish material critical of the U.S. government at their peril.
“If extradited to the US, Julian Assange could not only face trial on charges under the Espionage Act but also a real risk of serious human rights violations due to detention conditions that could amount to torture or other ill-treatment,” Amnesty International tweeted.
Assange is appealing the High Court decision on the validity of the U.S. diplomatic assurances to the U.K. Supreme Court. If the Supreme Court refuses to hear his appeal or he loses in that court, Assange could file a cross-appeal in the High Court asking it to review the issues on which Baraitser ruled against him.
Those issues include, his extradition (1) is barred because it would be for a political offense; (2) should be denied because the prosecution of Assange is being pursued for ulterior political motives and not in good faith; and (3) would constitute inhuman and degrading treatment and would result in denial of the right to a fair trial and the right to freedom of expression, all in violation of the European Convention on Human Rights.
Eventually, Assange could appeal to the European Court of Human Rights. The appeals process could take a number of years.
Meanwhile, Assange’s mental and physical health continue to deteriorate. He suffered a stroke in late October as the extradition hearing began. United Nations Special Rapporteur on Torture Nils Melzer was not surprised. Melzer wrote in a Twitter post that the “U.K. is literally torturing him to death,” adding, “As we warned after examining him, unless relieved of the constant pressure of isolation, arbitrariness & persecution, his health would enter a downward spiral endangering his life.”
The Biden administration must immediately dismiss the indictment of Julian Assange and withdraw its extradition request. The life of Assange and investigative journalism as we know it hang in the balance.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn sits on the national advisory board of AssangeDefense. She 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.