The Crown Prosecution Service, which represents the US government, has gone before the UK High Court of Justice and criticized the work of the district judge, who blocked the extradition of WikiLeaks founder Julian Assange in January.
James Lewis QC argued that Judge Vanessa Baraitser approached the extradition law incorrectly when she focused on predicting “uncertain future events,” which could lead to a deterioration in her mental health. Baraitser misjudged Assange’s suicide risk and “should have weighed the crucial factors in the psychiatric trials significantly differently.”
He said the High Court should accept the appeal on the grounds that the US government has offered “assurances” that Assange will not be subjected to special administrative measures (SAMs) or incarcerated in ADX Florence, a super prison. maximum in Colorado. In addition, key medical testimony provided by defense experts and accepted by the district judge should have been rejected.
According to Lewis, if the law and the facts had been “correctly” interpreted by the district judge, there would have been only one result. Assange’s extradition would have been granted.
But Edward Fitzgerald QC, who is part of Assange’s legal team, argued that it was inappropriate to mock the district judge’s decision. The district judge issued a “carefully reasoned judgment” and “carefully considered”.
“I’m just wondering for a while if my learned friend is reading our own sentence,” added Fitzgerald, prodding Lewis.
Baraitser concluded it would be “overwhelming to extradite” Assange to the United States due to his mental health condition. However, he held him in Belmarsh maximum security prison while the US government continued his appeal.
Assange faces 18 charges, 17 of which are offenses under the Espionage Act. The law passed in 1917 has increasingly been challenged by the Justice Department against media sources, who disclose “classified” documents or discuss sensitive information with journalists, even if what they reveal is in the public interest.
During the prosecution, Fitzgerald informed the High Court that Assange was feeling unwell because of his medications. Yet, an hour after the hearing began, Assange appeared in a room in Belmarsh. He wore a white shirt and a black tie. He looked very tired and rested his head on his hand.
Later, Stella Moris, Assange’s partner, claimed that the court denied him permission to participate in the proceedings in person. appeal hearing.
Lewis presented the following “grounds for appeal“: District judge misapplied UK extradition law; the district judge should have sought reassurance from the US government after deciding to deny the request; the district judge should have disqualified a key psychiatric expert; the district judge failed to consider evidence of suicide risk; and the UK government has been issued an insurance package addressing the issues the district judge described in his decision.
The prosecutor argued that the US government was authorized by law to offer insurance at any time and that it was normal in extradition cases. Indeed, persistent reassurances are “binding” and reliable.
It is not clear how the US government would be expected to honor its commitments or what the consequences would be if it abandoned them.
Fanciful statements by prosecutors
In ensuring that Assange would not be designated for SAMs or imprisoned at ADX Florence, Lewis mentioned the Communications Management Units (CMU) at the Terre Haute Federal Correctional Institution in Indiana and the United States Penitentiary in Marion, in Illinois, where drone whistleblower Daniel Hale, who pleaded guilty to violating the Espionage Act, was dispatched in early October.
Seeking to assure the High Court that the CMUs would respect Assange’s human rights, Lewis read a statement filed by Gordon Kromberg, the US Assistant Attorney in the Eastern District of Virginia who was the principal prosecutor in the Hale case. (Note: Kromberg was the main representative for the Justice Department’s efforts to secure extradition.)
“CMU inmates are offered the same opportunities to communicate with people outside the prison as normal inmates,” said Kromberg. “Their communications can be monitored more extensively, however, or the BOP [Bureau of Prisons] they may impose certain restrictions, as indicated in the Bureau’s Program Statement, to prevent them from engaging in further criminal conduct. “
When the BOP imposes “certain restrictions”, inmates no longer have the same opportunities to communicate as “regular inmates”. Hence Kromberg’s characterization is misleading.
If Assange were in a CMU, he would likely be limited to two scheduled 15-minute phone calls per week. Those calls may be limited to close relatives, and the prison may deny him a call if an FBI agent isn’t available to monitor his conversation.
The visit policy for a prisoner in a CMU is tougher than the policy for SAMs. Contact visits are not allowed, which means that Moris and his children, Gabriel and Max, could not hug or kiss him.
Despite assurances relating to SAMs, Lewis nevertheless told judges that the US government must be able to detain Assange under these restrictive conditions if they fear he may be responsible for a “breach” of “national security”. Otherwise, he would have “a blank check to do what he wanted, and those conditions could not be imposed.”
The chief prosecutor raised the issue of the conviction, complaining that Assange’s lawyers had allegedly overstated the potential conviction he could face in the event of a conviction. He touted the 45-month sentence against Hale and the 63-month sentence against the NSA Reality Winner whistleblower as “lenient” and evidence that Assange would not face a sentence that would effectively imprison him for the rest of his life. (Assange is 50 years old.)
When one of the judges presiding over the hearing said it was possible that he would not be convicted at all if acquitted, Lewis proposed a rosy but unrealistic scenario, in which Assange’s legal team could call for a “quick trial”, to challenge the blame on First Grounds for Amendment, and then Assange would prevail and go free.
A number of defendants accused of violations of the Espionage Act have tried to challenge the constitutionality of using this law to punish unauthorized disclosure of information. There is little reason to believe that Assange would succeed, where others have failed.
Furthermore, someone accused of violating the Espionage Act does not require a “swift trial” and urges the government to speed up the case. Complex procedures relating to classified information must be followed. It may take a year or two to prepare all the evidence and witnesses for a trial.
The only way Assange would have respected his “quick trial” rights is if he pleaded guilty to the charges or accepted some sort of plea deal that would include jail but avoids trial. This assumes that prosecutors would trade with him.
Attempts to discredit a key psychiatrist
During the extradition hearing in September 2020, Professor Michael Kopelman, head of the neuropsychiatry section at King’s College London, informed the district judge that there was a “very high” risk that Assange would attempt or commit suicide if had been extradited.
The district judge accepted Kopelman’s assessment as credible and trustworthy and formed a key part of his decision. Therefore, Lewis has focused a substantial part of his argument on discrediting his analysis.
In Kopelman’s initial report, the neuropsychiatrist did not note that Moris – whom Kopelman interviewed as part of his evaluation for the court – was also Assange’s partner and mother of two of his young children.
Although he eventually noted this fact in his final report to the court, Kopelman was “actively misleading” when he withheld that crucial information, Lewis repeatedly stated.
“In our respectful presentation, this was not an honest statement of truth,” Lewis said, referring to the statement that all expert witnesses must sign on their reports. He argued that the district judge made a crucial mistake in “disregarding it firmly” when considering Kopelman’s psychiatric evidence.
Since Kopelman did not disclose the relationship with the district judge, Lewis argued that he should have given his entire medical testimony “little or no weight”. Then Baraitser would have had no alternative but to rely on US medical experts, who were not so sure of Assange’s suicide risk.
During his oral remarks to the High Court, Lewis characterized Kopelman as a combative, even deceitful figure who violated his oath to court. He also described Baraitser as a judge, who inexplicably accepted and preferred the results of Kopelman (and autism expert Dr. Quinton Deeley) over those of the US experts.
The two senior High Court judges appeared sympathetic to the arguments, with one noting that it appeared that the district judge might have considered the duty of honesty due by the experts to be flexible.
However, Fitzgerald painted a very different picture during the short time he had to answer the charge.
The idea that Kopelman is “a lone wolf is utter nonsense,” Fitzgerald replied.
Fitzgerald noted that Kopelman’s conclusions were supported by Deeley and “to a great extent” the things he said were also supported by the United States. expert Professor Fazel.
Moris made a similar point to The Dissenter. “It is not true that there is a real difference between doctors. Everyone accepted autistic traits, but the autism expert concluded and diagnosed [autism spectrum disorder], “She explained.
“The US doctors also accepted [that Assange] suffers from major depressive disorder, “the divergence point among the experts was” a matter of degree, “he said.
The district judge found that although Kopelman’s inability to identify Moris as Assange’s partner was misleading, she was already aware of Moris’s identity at the time of reading the preliminary report and had not been deceived.
Baraitser concluded that this was a “very humane response,” given the witness testimony detailing the Spanish security firm UC Global’s espionage operation against Assange.
Kopelman took the issue of suspending Moris’ relationship seriously and was awaiting legal advice on the matter, Fitzgerald told the High Court.
The district judge “reasonably and justifiably concluded that Kopelman’s report was independent and impartial,” a finding she had “full right to do,” according to Assange’s lawyers.
In essence, Fitzgerald added, the US government was reviewing the case in the High Court before judges who did not have the benefit of 18 months of evidence, legal arguments, and extensive cross-examination of witnesses.
On October 28, Assange’s attorneys will have much of the day to fully respond to the US government’s attempt to overturn the district judge’s decision.