Tareq Haddad
(London, U.K.) The government of the United States presented its challenge into a ruling that barred the extradition of WikiLeaks founder Julian Assange at the High Court this week.
Over two days of hearings at the Royal Courts of Justice in central London, prosecutors on behalf of the U.S. sought to undermine District Judge Vanessa Baraitser’s ruling on January 4 in which she made an order for Assange’s discharge on the basis that extradition, given the restrictions and prison conditions he would be held, would be oppressive by way of his mental health. Namely, his recurrent depressive disorder accompanied by psychotic features, in addition to a diagnosis of Autism Spectrum Disorder (ASD) and Asperger’s.
Central to the U.S. government’s case is that new assurances, delivered by the U.S. embassy in London to the United Kingdom by way of Diplomatic Note 74 on February 8 — one month after Baraitser’s ruling — provide a “sea change” in mitigating the risk factors associated with the likelihood Assange will commit suicide if extradited.
Included in the note are assurances that the United States would not impose the restrictive Special Administrative Measures (SAMs) on Assange pre-trial or post-conviction, nor that he would be held at the maximum-security penitentiary at the ADX in Florence, Colorado, if convicted and sentenced to a custodial term.
Representing Assange, Mark Summers QC told the court on the second day of proceedings that such assurances should have come much earlier when the issues of SAMs and detention at the ADX in Florence were before a District Judge, not after the arguments had been lost in an attempt to re-litigate them.
Summers offered the court a number of examples of where — during the evidentiary portion of the hearings before District Judge Baraitser — the prosecution had the opportunity to remove the prospect of SAMs or ADX Florence, but instead chose to argue that those conditions would not create an intolerable risk of suicide. The defence pointed to the several declarations of Gordon D. Kromberg, an Assistant U.S. Attorney for the Eastern District of Virginia and lead prosecutor in this case, where the prospect of SAMs or ADX Florence were defended and further posited as a likely eventuality.
In response, James Lewis QC, on behalf of the U.S., told the court during closing arguments on the final day that, by nature, such diplomatic notes ought to be responsive — stating that it is only when a court makes a ruling or when a matter arises that such assurances are ordinarily given.
“In short, assurances have facilitated extradition, where the court has indicated concern or finding, and there is a strong public policy imperative to allow assurances provided, once the requesting state has been informed of the concerns.”
Prior, Summers, on behalf of Assange, also argued that the assurances provided by the U.S. government verged on meaningless in that they were so filled with caveats that once Assange surrendered to America, the court would have no control over the imposition of SAMs or detention in ADX which the U.S. could decide at a later stage.
He further pointed to the fact that the Central Intelligence Agency is an authorising body in the application of SAMs.
“The various witnesses, importantly my lord, tell you that the involvement of the CIA in the decision-making exercise is important in this particular case. They, of course, are an instigating agency. Their certification allows the Attorney General, head of the prosecution service, to impose… [SAMs].”
That is particularly in light of the recent Yahoo! News report — authored by Zach Dorfman, Sean D. Naylor and Michael Isikoff — in which 30 former Trump-era, high-level officials attested to CIA sketches drawn up to murder or kidnap the WikiLeaks publisher, which Summers brought before the court.
Summers pointed to how security officials described the mood of the agency after WikiLeaks’ publication of the Vault 7 files in 2017 — a trove of sensitive CIA hacking tools described as the “largest data loss” in the agency’s history — which consisted of “a desire for revenge,” and “fury.” One Trump national security official said: “They were seeing blood.”
The leak also led then-CIA director Mike Pompeo to designate WikiLeaks “a non-state hostile intelligence agency” which allowed the CIA to enable every tool in its arsenal as if it was dealing with spies from a hostile Russia, China or Iran. Importantly, it could do so without the oversight of U.S. Congress.
“The CIA’s planning in relation to Mr Assange goes much, much further than that,” Summers said. “And of course all of that then bears upon how likely or not that agency is, if there is an assurance which allows it to do that [impose SAMs], how likely that agency is to certify Mr Assange as someone to whom SAMs should apply the moment he sets foot in the USA.
“How likely it is that agency will assess there is a risk, for example, of directing the publication of an unredacted version of Vault 7? It is absolutely, unequivocally not the case that only future crime could trigger SAMs under the assurance.”
“… It’s any word, spoken or not spoken, any act done or not done, since February of this year which the CIA and the Attorney General subjectively believe gives rise to a risk where someone might disclose something they’d want kept secret.
“The irony, perhaps, is that the very act of allowing me to submit to you that somebody might think that he might direct publication of an unredacted Vault 7 is probably an act that engages the power to certify SAMs. His fate is already likely sealed.”
Further still, Summers argued that regardless of whether or not SAMs are imposed or whether or not Assange is sent to the ADX in Florence, District Judge Baraitser’s ruling took account of a number of scenarios in which it was the high levels of isolation — such as within the Communication Management Units or administrative segregation — that would themselves give rise to the substantial risk of suicide if Assange were to be extradited.
Both the prosecution and defence, for example, agree that Assange, pre-trial, would be held in administrative segregation at the William G. Truesdale Adult Detention Center in Alexandria, Virginia — also referred to as the Alexandria Detention Center (ADC) — if extradited. Given the complexity of cases under the Espionage Act of which he is charged, the trial may not commence for a number of years — leaving Assange in prolonged periods of severe isolation.
At the first day of the appeal hearing, prosecution lawyers on behalf of the U.S. also raised the case of professor Michael Kopelman’s expert evidence after they were granted leave to do so in a preliminary hearing overseen by Lord Justice Timothy Holroyde. Lord Justice Holroyde was joined by Britain’s most senior judge — Ian Duncan Burnett, Lord Chief Justice of England and Wales — in this two-day appeal.
Lewis, on behalf of the U.S., pointed to professor Kopelman’s report of 17 December 2019 in which a number of misleading statements were made with respect to the now-known identity of Stella Moris as Assange’s partner and that they had two young children together.
He argued that had that information been known, it would have “put a different complexion” on the facts. Moris gave testimony to professor Kopelman, emeritus professor of neuropsychiatry at King’s College London, that was used alongside other interviews and psychiatric evaluations to determine Assange’s mental health.
“In our respectful submission, [professor Kopelman’s declaration of impartiality] was not an honest statement of truth and he did not act in accordance with his declaration,” Lewis said. “And the District Judge erred in not taking that firmly into account in her assessment of his reliability.”
As a result, the prosecution argued, the evidence should be given no or far less weight.
Edward Fitzgerald QC, on behalf of Assange, reiterated arguments from the preliminary hearing in which it was outlined that professor Kopelman had omitted the information “not out of being in cahoots with Mr Assange and seeking some tactical advantage,” but out of the very real fear posed to the safety of Moris and her children after she expressed a fear of them being identified in the reports.
Fitzgerald further outlined how the omission occurred in the context of CIA spying revelations — namely the revelation from a Spanish whistleblower that his firm UC Global had conducted surveillance on Assange on behalf of the CIA, which included drawing up plots to kill and an order from owner David Morales to steal nappies from Moris’s oldest child so paternity can be determined by DNA. (This is in fact not possible.)
The defence pointed to a statement from Gareth Peirce, Assange’s instructing solicitor, as evidence that corroborated the course of action in which she advised professor Kopelman to defer admission of the information until further legal clarification could be sought.
Fitzgerald also took the court to dates of when the true information came to light in March 2020, stating that District Judge Baraitser was fully aware of the position by September when the evidentiary portion of the hearing took place and when expert witnesses, including professor Kopelman, were cross-examined.
“At no point was she misled,” Fitzgerald said.
Lewis, irrespective of Kopelman’s evidence, also argued on behalf of the prosecution that District Judge Baraitser erred in her overall assessment of the psychiatric and medical evidence, stating that she wrongly preferred the evidence of professor Kopelman and Dr Quinton Deeley to that of professor Seena Fazel and Dr Nigel Blackwood. He also asserted that District Judge Baraitser failed to properly carry out the Turner test — case law in which a six-step test must be satisfied before extradition under Section 91 of the Extradition Act of 2003 can be barred.
Lewis, one of the U.K.’s most experienced extradition lawyers, further suggested that the case law relied upon by District Judge Baraitser — such as the 2018 High Court ruling in the U.S. extradition case of British computer scientist and activist Lauri Love — was deeply flawed because the cases Love had relied upon differed and there was no mention of the Turner test.
“So my lord, clearly, the focus in Love was not on the test which was set out in Turner, because the focus in our respectful submission is the forum bar, and it has to be taken with care if you’re relying on Love as a precedent in suicide cases.”
In response, Fitzgerald, who is equal to Lewis in his seniority, told the court that the District Judge carefully weighed the evidence of the four medical experts and gave carefully reasoned arguments for the findings she did.
“The District Judge was perfectly entitled, on the evidence before her, to reach those conclusions,” he said, citing instances in her ruling which pointed to her reasoning for preferring the evidence of professor Kopelman and Dr Deeley.
“So this picture that my learned friend tries to paint that professor Kopelman is this lone wolf is absolute non-sense. Professor Kopelman was supported by Dr Deeley and to a large extent there were things that he said that were supported by professor Fazel too.”
He added: “My learned friend, one of his grounds was that the judge didn’t address the capacity to resist the impulse of suicide. Look at the heading above 347 [in District Judge Baraitser’s ruling]. ‘The capacity to resist the impulse to suicide.’ Then there are three carefully reasoned paragraphs addressing that capacity to resist the impulse and setting out the different views.”
With respect to Turner, Fitzgerald said that the prosecution had not identified a single error in the way District Judge Baraitser applied the law, pointing to seven carefully argued points at 337 onwards of her report.
“To the extent that there was guidance in Turner, and in Wolkowicz approving Turner, she followed that guidance clearly.
“And if a District Judge follows the law and reaches a conclusion and orders someone’s discharge, it’s pretty extraordinary if, a year later, we’re reviewing it on the basis that, ‘Well, perhaps the test in Turner needs to be reformulated in a new way.’”
In relation to the case of Love, who Fitzgerald also represented, he said that the District Judge was perfectly entitled to refer to it for a number of reasons, including that both Assange and Love share a diagnosis of Asperger’s and depression.
“She was saying I looked at a case which has analogies, which must be an appropriate thing to do for a judge at the first instance.”
Fitzgerald also referenced the extradition requests of Garry McKinnon and Robert McDaid—both halted on humanitarian grounds.
He said: “When my learned friend says no one’s ever committed suicide [after extradition to the United States], that’s because the English courts are alert to ensure that people like Lauri Love, Mrs Tollman, Mr McDaid don’t get extradited where there’s a risk.
“To turn that against us and say, because our courts have acted as guardians and sentinels of these people’s protection and we’ve protected them from committing suicide, therefore, it’s something that’s down to the U.S. — they were seeking their extradition. They were saying it doesn’t matter what the risk is, we want them.”
Much like America’s current zeal for Julian Assange.
Following two days of hearings, Lord Chief Justice Burnett thanked the prosecution and defence for preparing their arguments and said that after careful consideration, a written ruling will be issued in the next few days.
The case continues.