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 26-27 appeals hearing in London. If the American authorities are requested to extradite the Biden administration, WikiLeaksFor exposing evidence about U.S. war crime, the founder could spend 175 years in prison. 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 extraditionBecause Assange could commit suicide if extradited back to the U.S. where he would be held under harsh prison conditions. Expert testimony from Michael Kopelman, an emeritus professor at Kings College London in neuropsychiatry, was a major part of her defense expert testimony. 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 for the High Court’s review of the evidence Baraitser weighed during the September 2020 four-week evidentiary hearing.
For the first time on appeal, the DOJ is providing conditional “assurances” that if imprisoned in the U.S., Assange 1.) The maximum-security prison ADX Florencia in Colorado will not be sent to Assange; 2. He would not be subjected onerous Special Administrative measures that would keep him in complete isolation; 3. He could serve any Australian custodial sentence. 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. These issues should have been raised at the September 2020 evidentiary hearing by the DOJ, which could have been cross-examined.
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]He assessed Mr. Assange between May and December 2019 and was best equipped to examine his symptoms. He has taken great care to provide an informed account of Mr. Assange’s background and psychiatric history. He has paid careful attention to the prison medical records and included a detailed summary in his December report. He is a highly skilled clinician and was aware of the possibility for exaggeration as well as malingering. I had no reason not to trust 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.
Kopelman was aware of the dangers and made the decision to withhold information about Moris, 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 Kopelman’s initial concealment, but wrote that she was sorry.
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. Fitzgerald cited Lauri LOVE, an activist and computer scientist, who was extradited using the same approach as Baraitser. Love also has been diagnosed with depression and has Asperger’s, which is correlated with a reduced capacity to resist suicide. In both cases, psychiatric evidence was presented that would indicate that they were more likely to commit suicide if they lived in harsh U.S. jails.
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, who is the most senior judge in England, Wales and the United States, ruled together with another judge that the U.S. request for extradition to the Love case was rejected. Also, because of the high suicide risk, Holroyde was the highest ranking judge in England. Holroyde was among two judges who ruled that the U.S. could expand its appeal grounds 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. The CIA and the attorney General (head of DOJ) will decide whether Assange’s future behavior warrants it. 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. Chelsea Manning, a whistleblower, provided the documents. WikiLeaksPublication. She was being held in administrative isolation when she attempted to commit 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. This could be a Special Housing Unit (High Security Unit), Special Management 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 defense argument 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 says that it will not object to Assange receiving any Australian custodial sentence. Summers cited an example of a case in the United States where it reneged upon its assurances that David Mendoza Herrarte (Spanish drug trafficker) could serve his sentence in prison in Spain if the U.S. first extradited him to the U.S. to be tried. The U.S. responded that Mendoza could apply to transfer to Spain, and that the prosecutor had just assured him. 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 side can ask the U.K. Supreme Court if they wish to review the case.
More than two dozen People around the globe are protesting Assange’s persecution. This case is a sign of the future of investigative journalism, and of the survival of First Amendment rights to freedom of expression.