A Guide To The U.S. Government's Appeal In The Assange Extradition Case

[Editor's Note: I expect to be credentialed to remotely cover the Assange appeal hearing on October 27-28 and will have live updates on proceedings that can be followed on Twitter from @kgosztola]

On October 27, the High Court of Justice in the United Kingdom will hear the Crown Prosecution Service argue on behalf of the United States government that a lower court improperly blocked the U.S. from extraditing WikiLeaks founder Julian Assange.

The proceedings in London are expected to last two days and will involve five grounds for appeal that were previously approved by the High Court of Justice. (Two were reinstated by the court after a hearing on August 11.)

District Court Judge Vanessa Baraitser ruled on January 4 that Assange’s mental health was such that it would be “oppressive to extradite him” to the U.S. But two days later, she accepted the U.S. government’s objections and ordered him to remain in jail while her decision was appealed.

Assange is detained at Her Majesty’s Prison Belmarsh in London, a high-security prison where he has been held since he was expelled from the Ecuador Embassy on April 11, 2019. He faces 18 charges—17 of which are charges under the Espionage Act.

The Espionage Act is a U.S. law passed in 1917 that the Justice Department has increasingly wielded against media sources who share “classified” documents or talk about sensitive information with journalists.

Because Assange is the first publisher to be charged under the law, press freedom organizations around the world have roundly condemned the political prosecution. It also is part of a troubling development where the U.S. government increasingly seeks to impose its domestic laws on foreign nationals. Assange is an Australian citizen and has no ties whatsoever to the United States.

Each of the charges, aside from a conspiracy to commit a computer crime offense, solely relate to the documents that were submitted by U.S. Army whistleblower Chelsea Manning to WikiLeaks in 2010: the Iraq and Afghanistan War Logs, the U.S. State Embassy cables, and the Guantanamo Files.

The general allegations in the indictment against Assange directly criminalize the publication of information.

Corruption has marred the case at every stage. Yahoo! News reported in late September that CIA Director Mike Pompeo obsessed over Assange after WikiLeaks released CIA files in 2017 exposing the agency’s cyber warfare capabilities. Agents sketched out plans to kidnap or even kill Assange.

The CIA backed an espionage operation against the Ecuador embassy that was conducted by Undercover Global. They collected legally-privileged conversations among attorneys and broke into the personal devices of guests visiting Assange.

The FBI worked with an informant named Siggi Thordarson, a serial liar and sociopath who embezzled funds from the WikiLeaks store and sexually preyed on underage boys. He fabricated allegations against Assange that were later retracted in an interview with an Icelandic reporter. Icelandic authorities jailed Thordarson on September 24 to stop him from perpetrating additional financial fraud schemes.

Assange’s personal archive, confidential medical data, and legally privileged materials were seized from the embassy following his arrest and handed over to the FBI.

Nevertheless, President Joe Biden’s administration has pressed onward with the case against Assange, refusing to answer questions from reporters about why they will not drop the charges.

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The following is a guide to each of the grounds for the U.S. appeal that the Crown Prosecution Service will present to the High Court of Justice. Assange’s legal team will have an opportunity to respond to each argument. It is based on the submissions to the appeals court from the Crown Prosecution Service and Assange's legal team.

Ground 1: The judge improperly applied the UK's extradition law

Under section 91 of the Extradition Act passed in 2003 in the United Kingdom, the “physical or mental health of the requested person may act as a bar to extradition, if it is such as to render extradition oppressive or unjust.” If a judge concludes it would be oppressive, the judge may discharge that person, as happened in this case (although Assange was ordered to remain in jail during the appeal).

Prosecutors assert Judge Baraitser failed to correctly apply something called the Turner test, which stems from a 2012 case where a test for discharging a person on mental health grounds was set out.

According to that case, the court forms a judgment based on the facts. A “high threshold” must be reached to satisfy the court that a “person’s physical or mental condition is such that it would be unjust or oppressive to extradite him.” The court must determine there is a “substantial risk” the person would attempt to commit suicide.

The person must lack the capacity to “resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act, which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.”

There must be evidence that the person may succeed in committing suicide. The prison system of the country requesting extradition must lack the ability to manage the person’s mental condition and risk of suicide. And, finally, treaty obligations must be weighed in the decision.

In response to the Crown Prosecution Service, Assange’s legal team meticulously shows how the test was applied appropriately by the judge. One is an “overall value judgment.”

Like the case against activist and computer scientist Lauri Love, the judge focused on the degree of Assange’s mental disorder, the extent of his risk of suicide, and the extent to which U.S. prison conditions would result in a deterioration of health. Assange's attorneys contend, “Her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety.”

As to the “high threshold” and whether there is a “substantial risk,” Baraitser noted Assange faces the “bleak prospect of severely restrictive detention conditions designed to remove physical contact and reduce social interaction and contact with the outside world to a bare minimum. He faces these prospects as someone with a diagnosis of clinical depression and persistent thoughts of suicide.”

Assange was designated for the care planning process for prisoners identified at risk of suicide or self-harm when he arrived at Her Majesty’s Prison Belmarsh and largely has remained under care aimed at dealing with his health and risk of suicide, Baraitser acknowledged. He takes medication and is afraid for his future, putting him at a “very real” risk of attempting to end his life.

Baraitser engaged the question of whether a suicide attempt would be impulsive or the result of a voluntary act. She accepted the findings of Professor Michael Kopelman, who was the only psychiatrist who gave testimony who assessed Assange between May and December 2019.

“Professor Kopelman gave his clear and unequivocal view that Mr. Assange’s suicidal impulses will come from his psychiatric condition rather than his own voluntary act,” she determined.

Whether the procedures in place in a U.S. jail or prison would prevent Assange from succeeding in suicide or attempting suicide were considered and deemed insufficient. “Assange undoubtedly has the intellect to circumvent these suicide preventative measures; in order to avoid suicide watch or increased isolation at HMP Belmarsh, he has already adopted a strategy of disguising his suicidal thoughts,” Baraitser added.

“I accept that oppression as a bar to extradition requires a high threshold,” Baraitser stated. “I also accept that there is a strong public interest in giving effect to treaty obligations and that this is an important factor to have in mind. However, I am satisfied that, in these harsh conditions, Mr. Assange’s mental health would deteriorate causing him to commit suicide with the ‘single minded determination’ of his autism spectrum disorder.”

Along with the Turner test, Assange’s team contends she incorporated what they call the Lauri Love approach. Like Love, Assange has been diagnosed with depression and autistic spectrum disorder. Both were considered by psychiatrists to have the determination to take their lives “irrespective of precautionary measures.”

Baraitser recognized once transferred from Belmarsh to a U.S. facility he will lose many of the “protections” that have helped his health stabilize. He will likely lose access to support of family and friends. He will no longer have the Samaritans phone line, a suicide prevention service. And he will likely lose the “trusting relationship” he has built up with the psychologist, who has been treating him.

Ground 2: The judge should have let the US offer assurances if she was going to deny the request

The U.S. procedurally objects to Judge Vanessa Baraitser not asking for assurances before denying the extradition request. It points out the U.S. did not agree with Julian Assange’s legal team that he was likely to be designated for special administrative measures (SAMS) and if convicted incarcerated at ADX Florence, a super-maximum prison in Colorado.

Assange’s legal team counters that the judge was under “no duty to invite the prosecution to address concerns about prison conditions by offering them an opportunity to provide assurances.” In fact, his attorneys add the Crown Prosecution Service never requested the judge seek assurances if the judge was concerned about potential prison conditions as a factor that could contribute to suicide risk.

Baraitser concluded the evidence put forward by defense attorneys was persuasive enough to conclude if Assange was subject to the “extreme conditions of SAMs,” his mental health would “deteriorate to the point” where he committed suicide.

In the Lauri Love case, the High Court of Justice quashed his extradition over possible prison conditions that could have resulted in his death due to his “difficult mental conditions, Asperger’s syndrome and depression” and physical conditions, “notably eczema, which would be exacerbated by stress.”

Assange’s legal team points out the U.S. did not suggest in the case against Love that the High Court of Justice had a duty to seek assurances before denying the extradition request.

Ground 3: The judge ought to have disqualified a key psychiatric expert

Prosecutors maintain Judge Vanessa Baraitser should have disqualified psychiatrist Professor Michael Kopelman because he withheld his knowledge that Assange was in an undisclosed relationship with Stella Moris and fathered two children while he was in the Ecuador embassy in London.

Clair Dobbin QC, who is with the Crown Prosecution Service, accused Baraitser of not appreciating the “significance of the fact that Kopelman was willing to mislead” the court.

However, Baraitser acknowledged that Kopelman’s decision to “conceal their relationship was misleading and inappropriate in the context of his obligations to the court” as an impartial witness. She contextualized what Kopelman did as an “understandable human response” to Moris’ predicament.

Moris was concerned about the risk to her family if it became known that she was in a relationship with Assange, especially given the Spanish private security company Undercover Global’s espionage operation against Assange, his legal team, and all visitors while he was living in the Ecuador embassy.

“[Kopelman] explained that her relationship with Mr. Assange was not yet in the public domain and that she was very concerned about her privacy. After their relationship became public, he had disclosed it in his August 2020 report. In fact, the court had become aware of the true position in April 2020, before it had read the medical evidence or heard evidence on this issue," Baraitser recalled.

Baraitser made it clear the court was not misled by Kopelman’s initial omission. She assessed all the medical evidence while considering the fact that Assange’s new family could potentially diminish his risk of committing suicide.

Ground 4: The judge erred when considering evidence of suicide risk

The U.S. government would like to disqualify Professor Kopelman so the particular evidence from him on suicidal impulses no longer weighs so heavily against their extradition request. But if that fails, they argue Judge Vanessa Baraitser committed an error when assessing the evidence of suicide risk.

Prosecutors plainly accuse the judge of impropriety because she gave more weight to Kopelman and less to Professor Seena Fazel, a forensic psychiatrist who was one of their preferred doctors because he did not view “Assange’s risk factors to be strongly predictive of suicide and rejected Kopelman’s opinion.

“The district judge did not properly take this into account in her assessment of all the expert evidence before her. She regarded Professor Fazel’s analysis as ‘helpful’ but ‘preferred’ Professor Kopelman’s opinion that ‘statistics only take you so far,’" prosecutors argue. “This was a mischaracterization of Professor Fazel’s evidence. His evidence went to demonstrating that high risk of suicide did not mean a probable risk of suicide (far from it) and that it was not possible to predict a risk of suicide on the sort of long-term basis envisaged here.”

Assange’s defense counters, “The district judge rightly noted that Professor Fazel generally supported Professor Kopelman’s assessment of Mr Assange’s mental state.” She referred to Fazel’s evidence of what would constitute a high risk of suicide and how that did not necessarily mean a “high probability of suicide.”

However, Baraitser based her conclusions on the capacity Assange would have to resist suicidal impulses, and Kopelman, Fazel, and a third doctor, Dr. Quinton Deeley who “agreed that severe depression and isolation might reduce” his ability to resist suicide

Ground 5: The UK government was offered a package of 'assurances' to address the judge’s decision

The United States government offered assurances after Judge Vanessa Baraitser denied the extradition request.

The package included an assurance that the U.S. would not seek to impose special administrative measures (SAMs) on Assange before trial or after he was convicted. However, it contained a major loophole. If Assange committed a “future act” that “met the test” for SAMs, the U.S. would designate him for such restrictive confinement conditions. They did not specify what type of acts might justify abandoning this assurance.

Prosecutors pledged to allow Assange to apply for a prisoner transfer to Australia to serve his U.S. sentence under the Council of Europe Convention on the Transfer of Sentenced Persons. But that agreement was in force during and before the extradition hearing, and the Crown Prosecution Service never entered any evidence into the record during the extradition hearing that related to this agreement.

In fact, invoking the agreement is too clever by half, a way for the U.S. government to avoid scrutiny over the systematic abuses and due process violations that take place within the U.S. incarceration system, which are well-known to the world.

If Assange was extradited and held in a U.S. jail or prison, the U.S. pledged to ensure he received “clinical and psychological treatment” as recommended by a “qualified treating clinician employed or retained” by the facility where he is held. However, this assurance is as problematic as the SAMs assurance that contains a major loophole.

Should a psychologist assigned to the jail or prison decide Assange’s condition is not serious enough for care, he could be denied treatment. As reported in 2018 by The Marshall Project, the BOP’s own data showed—despite promising better care for prisoners with mental health issues—the number of prisoners “designated for higher care levels” decreased by more than 35 percent. The BOP lacked the staff necessary to provide increased care to prisoners’ with mental health problems. It incentivized staff to “downgrade inmates to lower care levels.”

The U.S. government pledged that Assange would not be designated for ADX Florence, the supermax prison. Yet similar to the assurance to not impose SAMs, they indicate if Assange commits a “future act” that meets the "test for such designation” he could still be confined in the maximum security prison.

Importantly, the assurance ignores the possibility that Assange would be confined in a Communications Management Unit (CMU) at Federal Correctional Institution Terre Haute in Indiana or U.S. Penitentiary Marion in Illinois.

In early October, the BOP designated Daniel Hale for a CMU, even though a federal judge, prosecutors, and defense attorneys had discussed sending him to Federal Medical Center Butner in North Carolina, a low-security facility where he could receive attention for post-traumatic stress. Hale pled guilty to violating the Espionage Act when he disclosed documents on the U.S. military’s drone program to Intercept co-founder Jeremy Scahill.

Joel Sickler, the head of a criminal defense litigation support firm, who testified as an expert on federal prisons during the extradition hearing, declared, “For any inmate, and many of my clients, the level of monitoring of their lives can—and often does—cause distress leading to significant levels of depression. In my experience, those inmates who are placed in CMUs experience this exponentially.”

The visitation policy for prisoners designated for a CMU is harsher than the policy for SAMs. All visits with his partner Stella Moris and his children, Gabriel and Max, would be non-contact visits where he could only speak with them through a partition. He would not be allowed to hug, kiss, or sit next to them the entire time that he was incarcerated.

Additionally, all of his phone calls would likely be restricted to immediate family, and he would only be allowed two scheduled 15-minute calls per week. (Regulation permits prison staff to restrict Assange to three 15-minute calls per month with “immediate family only.”)

Though Assange would have a bi-annual review to determine whether his CMU designation should continue, former USP Marion warden Maureen Baird testified that it is extremely rare for a prisoner to be transferred out of a CMU.

The problem with offering assurances for the first time during the appeal is articulated by Assange's attorneys. It gives the U.S. government a "tactical advantage at the expense of fairness" and in a manner that prolongs Assange's detention.

The Justice Departmant has "actively engaged in these proceedings for nearly two years, providing significant volumes of evidence, without making any suggestion assurances were being considered, though the offer of assurances at first instance is commonplace. This meant that none of the defense witnesses could comment on the assurances that are now produced."

Assange's legal team concludes, "The DOJ’s approach of not offering assurances in the court below gave them the further advantage that they could obtain extradition without providing any assurances if they could persuade the district judge of the correctness of their approach. Now that they have failed, they seek belatedly to bring forward these conditional and untested assurances in the High Court."