On the morning of August 11, 2021, the High Court of the United Kingdom expanded the scope of issues on which the United States could appeal a judge’s decision to block their extradition request for Julian Assange.
The United States has sought the extradition of the Australian journalist for seventeen counts of violating the Espionage Act and one count of “conspiracy to commit computer intrusion.” The Espionage Act charges stem from WikiLeaks’ publishing of State Department Cables, the Iraq Rules of Engagement, and Guantanamo Bay detainee assessment briefs. It marks the first time a publisher of truthful information has been indicted under the Espionage Act.
The case is made all the more troubling by the fact that Assange is an Australian national who operates outside the United States. The United States is not only asserting it can prosecute journalists for exposing its war crimes, but that it can prosecute any journalist anywhere in the world for doing so.
In January 2021, UK district judge Vanessa Baraitser blocked the US extradition request. When doing so, she rejected the arguments made about how Assange’s extradition threatened press freedom. Instead, her ruling turned solely on arguments about the conditions of US prisons and Assange’s mental health. She found that the extradition would be oppressive to Assange and that he was at a high risk of committing suicide in a US prison.
This should have been the end. The United States had received a technical legal victory for its claim that it can charge journalists anywhere in the world with espionage while being relieved of the burden of having to follow through on an unsavory, high-profile political persecution of a journalist.
Instead, the United States sought an appeal of Judge Baraister’s decision on five separate grounds. It was initially granted the right to appeal on three of them, but not the full five. The United States would have been able to appeal on the basis that the judge should have notified the country of her preliminary decisions about the effect of US prison conditions on Assange’s mental health, so they could offer her assurances about Assange’s conditions of confinement. It was also allowed to appeal based on those assurances, including claims that the United States would allow Assange to serve his prison term in Australia.
The United States was, however, blocked from appealing the judge’s conclusions based on the medical evidence presented at trial. Specifically, the United States wanted to argue that evidence from a defense witness should have been deemed inadmissible or granted little weight, and that the judge erred when assessing Assange’s risk of suicide. After today’s ruling, prosecutors will be able to raise those issues as well. An appeal hearing is scheduled for October 27 and is set to take two days.
Thanks to the 2003 US-UK extradition treaty, the United States is represented by UK prosecutors, with the British people footing the bill. This is in addition to the millions the UK spent surveilling the Ecuadorian embassy where Assange sought refuge for seven years.
“I Just Don’t Understand It”
The prosecution began their arguments by claiming the judge had made a ruling not on Assange’s current mental health, but his future mental health. While the defense presented expert evidence on this point, a prosecution witness argued one cannot predict the probability one will commit suicide more than six months in advance.
The prosecution further argued that defense witnesses relied on Assange’s self-reported claims. While, per the prosecution, anyone facing extradition’s claims of mental duress should be subject to scrutiny, Assange’s claims must be particularly scrutinized. The prosecution reasoned that since Assange sought and received political asylum from Ecuador and remained in their embassy, he had gone to great lengths to avoid extradition to the United States. They also used this opportunity to point out that while in the Ecuadorian embassy, Assange had “hosted a chat show on Russia Today,” oversaw the operation of WikiLeaks, and attempted to assist US whistleblower Edward Snowden in evading prosecution by the United States.
Most of the hearing focused on the findings of Michael Kopelman, emeritus professor of neuropsychiatry at King’s College in London. Kopelman was one of four psychiatrists who testified about Assange’s mental health during the trial. Judge Baraister ultimately found Kopelman and other defense experts to be more persuasive than the prosecution’s experts. Kopelman interviewed not just Assange, but friends and family members, prepared two separate reports, and even turned his interview notes over to the prosecution.
When Kopelman prepared a preliminary report in December 2019, neither Assange’s current relationship with partner Stella Morris nor the fact that they had two young children together was public knowledge. Morris feared for the safety and privacy of both her and her children if this was disclosed.
These fears were not without basis: a former employee of the private security firm UC Global testified that the firm had discussed with US intelligence agencies poisoning or kidnapping Assange. They also plotted to steal the diaper of one of Assange’s children in order to gather DNA to prove Assange’s parentage. This made both Assange and Morris fear for the safety of their children.
According to the defense, while Kopelman opted not to disclose that information in a preliminary report, he planned to seek legal advice on how to deal with Morris’s concerns for her privacy and his obligations to the court. Before he could do so, Assange and Morris disclosed their relationship to court officers. Morris then went public to the media with her story.
Kopelman’s subsequent report fully contained this information. The defense argued that the idea that Kopelman would have permanently concealed this information from the court was not plausible. At the very least, he would have sought confidential ways to disclose this information to the court and the prosecution.
Yet the prosecution contends that because the preliminary report omitted this, all evidence presented by Kopelman is inadmissible or should be granted little weight as evidence. Since the judge relied on Kopelman’s expert opinion, the prosecution appears to contend that had she been barred from considering it, she would not have been able to rule that Assange’s extradition would be oppressive.
The prosecution, which had the notes of Kopelman’s interviews with Assange, raised this issue during cross examination. Ultimately, the judge decided the initial report was misleading. However, she ruled this was an “understandable human response to Miss Morris’s predicament.” By the time the court actually heard any of the medical evidence, Judge Baraister pointed out, the full nature of Assange’s relationship with Morris was known. So while the December report was misleading on its own, the judge felt that the court was at no point actually misled. Given the totality of the circumstances, including a second report and the sharing of notes, Judge Baraister found the distinguished neuropsychiatrist to be credible and impartial.
When delivering today’s ruling, Lord Justice Timothy Holyrode noted that it is exceedingly rare for a higher court to second guess a judge’s rulings on matters like these. Yet he decided this was one of the rare exceptions. Similarly, he conceded that under most circumstances a judge’s decision about an individual risk of committing suicide would not be appealable. But if the prosecution was allowed to appeal the admissibility or weight of the expert’s testimony, they should also be allowed to appeal the finding that Assange would be at risk of suicide if transferred to the United States.
After the hearing and before the live feed was cut, Assange (who attended via video from Belmarsh prison) could be heard saying to his attorneys, “I just don’t understand it. An expert has a legal obligation to prevent harm, especially to my two children.”
Get Assange, No Matter What
Today’s hearing may strike many as petty. An appeal of the decision to block extradition would have happened either way. It may also strike many as cruel. The idea is slightly complicated but seems to be this: the fact that Assange was granted political asylum means any claims about his mental health need extra scrutiny. Prosecutors’ assertions that concerns about the safety of his children were invalid because safety “went out the wayside” when he chose to publish classified information are particularly heartless.
But today’s preliminary appeal was evidence of just how far the United States and the UK are willing to go to ensnare Assange.
Julian Assange has been in the crosshairs of the US government since he first released the “Collateral Murder” video depicting US gunships firing and killing upward of eighteen people, including two Reuters journalists, and wounding two children.
He spent seven years in the Ecuadorian Embassy in London, subjected to what a UN working group found to be arbitrary detention. The UN Special Rapporteur on Torture has found that Assange is the victim of psychological torture. And as Declassified UK exposed, the UK government was so intent on getting Assange out of the Ecuadorian embassy that it created an entire government campaign it named “Operation Pelican” to achieve just that.
The issues raised in the preliminary hearing may be narrow legal ones, but they are just the latest in the United States’ attempts to silence one of its critics. Assange’s case has aroused considerable global outcry. Assange’s prosecution has broad implications for the future of the First Amendment in the United States and press freedom globally. As a result, press freedom groups, US civil liberties groups, international human rights groups, and mainstream newspapers have all opposed Assange’s extradition to the United States.
Given that Assange’s crimes concern revelations about US war crimes and dirty dealings by the State Department, both antiwar activists and political leaders in the Global South have joined press freedom advocates in rallying behind Assange.
Before today’s hearing, protesters gathered outside the court were addressed by former Labour Party leader Jeremy Corbyn. Corbyn stressed that many journalists risked their own safety to expose public corruption and crimes committed in our names. Corbyn argued that Assange was part of “great tradition of great fearless journalism.”
The fight for Assange is not over. The UK High Court has yet to make any decision about the underlying appeal. But by allowing the United States the opportunity to challenge a judge’s weighing of medical testimony, they have made it easier for the UK to deliver the journalist into the clutches of the US empire.