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On the second day of the extradition appeal by the United States against Julian Assange, the defence made their case against the overturning of District Court Judge Vanessa Baraitser’s . Any extradition to the US, she concluded, would be so oppressive to the publisher as to render it unjust under British extradition law.

Before the British High Court, Edward Fitzgerald QC and Mark Summers QC sought to preserve the status quo.

The morning session was focused on defending the action of the defence witness Michael Kopelman, whose initial psychiatric assessment of Assange’s wellbeing omitted reference to Stella Moris and the existence of their two children. The prosecution had contended that this impaired Kopelman’s partiality before the court, notwithstanding his correction to the account in the final court submission. The omission, Fitzgerald contended, was justified given fears of the surveillance operation in the Ecuadorian embassy mounted by the Central Intelligence Agency, and concerns about potential abduction and assassination. This point has been confirmed in the now famous .

A day prior to the submission of the initial report, Kopelman from the head of the solicitor’s firm acting for Assange, Gareth Peirce. But as Peirce was facing an avalanche of documents to be served at the time – surveillance, allegations of kidnapping and poisoning, among other things – she was unable to furnish him with timely advice. Baraitser duly found that Kopelman’s conduct, while misleading, was not that of a dishonest individual but “a very human response”. The judge also knew about the identity of Moris prior to reading the initial report.

To bolster Kopelman before the attacks of the prosecution, the defence of consultant forensic psychiatrist Keith Rix, a noted authority on the ethical duties of psychiatric experts. Kopelman had, in Rix’s view “acted ‘professionally’; ‘responsibly’ and ‘exercised appropriate and reasonable caution’” in omitting reference to Moris and the children in his initial report.

The defence that the US government could not have been surprised by the relationship between Moris and Assange and their children. Nigel Blackwood, one of prosecution’s doctors of choice, was informed of the children’s existence in March, 2020.

Fitzgerald, mindful of addressing Lord Chief Justice Ian Burnett, about the parallels between the Assange case and that of “hacktivist” Lauri Love, whose extradition to the US was overturned in 2018. Love’s extradition was initially approved by the Westminster Magistrate’s Court but was overturned in the High Court with Burnett presiding. Love had also been diagnosed with Asperger’s syndrome, a contributing factor to his suicide risk in a US prison facility. The court there had accepted a “predictive function” so frowned upon by James Lewis QC, whose submission the previous day insisted that current medical valuations – and notably those of the prosecution – were the only ones that counted.

Burnett took issue with the characterisation. “It’s a completely different case,” , citing the fact that the district judge in Love’s case had found that preventive measures were adequate and would prevent suicide. Baraitser had found the opposite with regards to Assange. Fitzgerald contended the mental disorders in question were the same in both cases and that these would have a role in depriving intelligent individuals of volition in being at risk of suicide.

After lunch, Summers at the prosecution’s package of “assurances” regarding Assange’s fate in the pre-trial and post-trial phase. These an undertaking that Assange would not be subject to oppressive Special Administrative Measures (SAMs), face solitary confinement, nor end up in the ADX Florence supermax prison facility, if convicted. They also include a promise that Assange would receive appropriate “clinical and psychological treatment” as “recommended” by the relevant prison clinician. If convicted, the US government would permit him to apply for a prisoner transfer to serve his sentence in Australia subject, of course, to Australian approval.

In the view of the defence, the entire package was unreliable. Even assuming they would be acted upon, they would be inadequate. They were also oddly timed and untestable, being given only after Baraitser’s ruling. They only addressed two of the seven grounds for finding that Assange faced a substantial risk of suicide, and even then, inadequately addressed those limited issues. How could we trust such pledges from a power whose officials had considered abducting and killing Assange?

The previous day, Lewis had argued that the onus was on the judge to seek those assurances on how Assange would be treated in the first place. This rather odd interpretation was given a deserved shredding by Summers. Through the extradition hearing, the discussion about SAMs, ADX Florence and solitary confinement was frequent. The prosecution might well have taken these conditions off the table but as Baraitser herself observed, “Mr Kromberg acknowledged that their imposition is possible.”

Furthermore, “conditional assurances do not in fact remove the real risk of detention on SAMs or in ADX. They certainly do not remove the very real risk of detention or administrative segregation.” The US authorities still reserved, , “the power to impose SAMs on Mr Assange ‘in the event that, after entry of this assurance, he was to commit any future act that met the test for the imposition of a SAM’.”  Even leaving the matter of SAMs and ADX Florence, Assange would still risk facing “other severely isolating prison regimes or other notorious prisons in the US about which the [District Judge] heard copious evidence”.

James Lewis QC, for the prosecution, that such regimes as Administrative Segregation (AdSeg) could not be equated to solitary confinement. But the US prison system is replete with terminology designed to conceal what amounts to the same thing. “Prisons often hide behind these rhetorical labels [the hole, AdSeg, protective custody, SMU, SHU] to avoid scrutiny under legal sanctions that prohibit indefinite placement in solitary confinement and require due process for those who are sentenced,” the US-based human rights body, the National Immigrant Justice Center.

The defence’s High Court submission also notes the crude reality that, “One agency with power to recommend SAMs to the attorney general (on the basis of some unspecified ‘act’ they perceive Mr Assange to have committed) is the CIA – the very same agency whose criminal acts Mr Assange has sought to expose and who are under active investigation in Spain for plotting to kill him.”

Continuing the focus on the role of the CIA, Summers that this was the “first time the US had sought the assistance of a UK court in obtaining jurisdiction” over an individual a US government entity had considered poisoning or assassinating. “That is worthy of an investigation in relation to the assurances.” The CIA an “obsession for vengeance”; there was “credible evidence of US government plans at some length to do serious harm to Mr Assange”.

Drawing from the Yahoo! News report, Summers “discussions in the Oval Office about killing [Assange]” and “sketches drawn in the summer of 2017 as matters escalated to render him back to America from the UK. But the UK refused to go along with this.” The then CIA director Mike Pompeo was “on the record that some things are true and it’s under Congressional investigation.”

The assurance that Assange could be transferred to an Australian prison also deserved some measure of scorn. “Mr Assange will most likely be dead before [this assurance] can have any purchase, if it ever could.” Precedent also showed that the US could not be trusted to keep the undertaking. 

In the case of Spanish drug trafficker David Mendoza Herrarte, by Summers, a Spanish court was given an assurance that Mendoza, if extradited to the US to face trial, could serve any prison sentence in Spain. It took between Madrid and Washington, with the encouragement of the Spanish Supreme Court, to eventually secure the prisoner release.

In , Lewis, who omitted any reference to the role of the CIA, having previously dismissed such claims as “palpable nonsense”, made light of the tardiness of the US offer of assurances. “It is proper to deal with assurances at any stage. This is not a sea change. Assurances are not evidence. The fact is it is common sense that an assurance will be reactive in nature.” Conditions might change. Even if a person was released, Lewis proposed, citing precedent, the extradition process might well be restarted on the basis of assurances given by the requesting state. “We could start again with Assange.” A promise of perennial legal purgatory.

This second and concluding day was illuminating in casting light on the barbarously defective nature of the entire effort against Assange. The fact that it had reached the appeal stage is itself a grotesque reflection on British justice.

The fact that these proceedings could even assume that Assange might either get a fair trial or be treated fairly in a US prison after officials had chewed over the possibility of abducting or killing him can only be described as disturbed lunacy.

The High Court justices will now consider whether to continue this lamentable, sadistic enterprise.

[Binoy Kampmark lectures at RMIT University.]