The Long Night Before Dawn: The Assange Appeal

Julian Assange won his case against extradition to the United States on 4 January 2021. After watching the two-day appeal hearing in October, I believe he is likely to win again, defeating the US appeal to the High Court, with a ruling due before Christmas.

Given the already weak US case is suffering from several scandals, fuelling an ever-growing campaign, the Biden administration’s Department of Justice may not risk the embarrassment of yet another defeat in the Supreme Court in a case initiated by the Trump administration. Alternatively, the misuse of legal process to inflict punishment on Assange through endless delay could continue.

District Judge Vanessa Baraitser ruled against Assange’s extradition to the United States on grounds the extradition would be so oppressive it would drive him to take his own life.  This ruling makes the United Kingdom the only jurisdiction where he is safe from US extradition, and therefore the place he would be least likely to flee. Despite this, Baraitser agreed to the US request to keep him caged at Belmarsh maximum-security prison while an appeal on five grounds was prepared.

Assange was denied the right to personally attend the appeal at the Royal Courts of Justice in October, but he appeared briefly in the video room at Belmarsh, looming large on the screens of the seventy journalists and observers who tuned in—several of them from Australia on the 8pm to 2am shift. These additional ten months behind bars, on top of the ten years of arbitrary detention, have weighed heavily on Assange. He was thinner, and drugged, and he held his head in his hands while Crown Prosecution Service QC James Lewis, appearing for the United States, attempted to undermine medical experts’ mental health diagnoses, and derided his suicidal ideation. Assange moved to a chair out of shot, and then he left the room altogether. Who can blame him?

Court cases are mostly boring, but appeals are so much worse. A court case at least has the drama of witnesses and cross examination, whereas an appeal sees wigs on each side unpick a previous court case and ruling, with constant reference to tabs, bundles and paragraphs available only to legal teams and judges—in this case Chief Justice Burnett of Maldon and Lord Justice Holroyde. Time was equally divided between Lewis, arguing for the United States on the first day, and Ed Fitzgerald and Mark Summers, representing Julian Assange on the second. The skeleton arguments by the Assange team are worth skimming to understand the grounds the United States claims and the counter-arguments that have been asserted.

While Julian appeared weakened by the ordeal, the case against him is weaker still. After he leaves Belmarsh, he will get well, but the reputations of those involved in this prosecution are beyond rehabilitation.

The case is weak because:

• Thirty former US officials have come forward to reveal aggressive spying on Assange and his associates by the CIA, including the outlining of options for Julian’s abduction or assassination. The 7500-word Yahoo News investigation was submitted in evidence by Assange’s lawyers, as it reveals an ‘obsession for vengeance’ by the very country alleging that it offers a fair trial and decent prison conditions. The judges have been made to understand, in stark terms, that the CIA will determine Julian’s conditions in custody, and that Mike Pompeo, director of the CIA at the relevant time, was motivated by revenge for WikiLeaks’ Vault 7 publication—the CIA’s equivalent of the NSA Snowden leaks. Also submitted to the judges were Pompeo’s statement that ‘pieces of [the Yahoo News report] are true’, and his remark that the officials who spoke to Yahoo News should be criminally prosecuted for disclosing classified information. The US House Intelligence Committee is seeking information about the story, according to Adam Schiff, the committee’s chair.

• The United States is offering ‘assurances’ that are not assurances—quite literally. The United States asserts that it should have been given the opportunity to grant assurances that Assange would not be subject to Special Administrative Measures (SAMs) or held in the notorious ADX Florence facility. SAMs include solitary confinement twenty-four hours a day, no communication with other inmates, thirty minutes on the phone per month (scheduled two weeks in advance and monitored by the FBI), and having mail heavily screened. The United States had ample time to make assurances during the hearing, as the defence produced several witnesses and made much of their concerns about these very things, but the prosecutors instead chose to legitimate both ADX Florence and SAMs. Now that the United States has given such assurances in writing, we see, in writing, that it reserves the power to reverse the assurance, ‘in the event, after the entry of this assurance, [Assange] was to commit any future act that then meant he met the test for such designation’. That is, the United States can put Julian in SAMs and ADX without even violating the ‘assurances’. Furthermore, because it has violated such assurances before, Amnesty International has stated that ‘US diplomatic assurances are inherently unreliable’.

• The United States has dangled the idea of a sentence being served in Australia, a laughable concession given that Assange’s transportation would only be available at least a decade later, after all avenues of appeal on US soil had been exhausted.

• A star witness for the United States has admitted to fabricating allegations and lying to the FBI for immunity. Remember the strange theatre of Assange being rearrested in the cells of the Old Bailey on a new indictment halfway through the extradition hearing in 2020? That was to add the spice of Sigurdur Ingi Thordarson’s assertion that Assange had instructed him to commit computer intrusions in Iceland, which shored up US claims that Assange had similarly instructed Chelsea Manning. Thordarson had several convictions for sexual abuse of minors and financial fraud, and is back in jail again for continuing his crime spree while engaging with the US Department of Justice and the FBI. Only those with a weak case offer immunity deals to this calibre of person—it was a desperate measure entirely demolished by Thordarson’s admission that he was lying the whole time.

• Spain’s High Court is investigating five separate criminal complaints related to spying on Assange at the Ecuadorian embassy in London by UC Global, a security company that allegedly helped the CIA. Assange’s lawyers suggested that in addition to the Yahoo News investigation, ‘there is going to have to be some assessment’ also of the Spanish investigation that buttresses allegations that the CIA ‘plotted assassination, kidnapping and poisoning’ of Assange.

• The prosecution seeks to denigrate the character and evidence of a distinguished psychiatrist for a trivial reason. One of the five appeal grounds seeks to dismiss the evidence of Dr Michael Kopelman, emeritus professor of neuropsychiatry at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London. Professor Kopelman’s evidence was preferred by District Judge Baraitser in January because it was detailed and based on several examinations of Assange’s mental health. In her ruling,  Baraitser acknowledges that in one report Professor Kopelman records that Julian has a relationship and two children but does not name Stella Moris as the mother of the children. His report accurately records his findings as a psychiatrist of Julian’s mental health, but in not naming Stella he was found to have misled the court. Baraitser explains that she understood his human response, given this was the very period that threats posed by surveillance by Spanish intelligence company UC Global were becoming apparent. While the judge made it clear that this did not compromise his evidence, the United States is trying to rule out Professor Kopelman’s professional analysis because he committed an act of conscience.

• Scorn rather than arguments has greeted the evidence of medical professionals. Despite professional diagnosis of depression, autism and Asperger’s syndrome, in addition to a documented family history of suicide and other mental health issues, prison authorities finding half a razor blade in his cell, repeated calls to a Samaritans suicide hotline from jail, hallucinations, prescription of antidepressant medication and the antipsychotic quetiapine, and observation of self-harm, the United States claims that Assange is only mildly, as opposed to severely, depressed. An argument offered in the 2020 hearing was repeated again in the appeal, suggesting that because Assange consumed oranges and milk he does not have severe mental illness, and that if he goes to a library or watches television he cannot be considered autistic. The US prosecution also said that Assange could not be considered autistic because he had been given custody of his children in Australia. While disdain for and deprecation of the other side’s arguments are part of legal theatre, the callous disregard for and denial of suicidal depression against such detailed evidence was breathtaking but also telling.

• Overall, the excesses of the US case are uniting larger and broader coalitions of unlikely bedfellows in a growing campaign. Crowds on the streets are growing, with thousands marching in London on the eve of the trial and in hundreds of cities around the world. All major human rights and free speech organisations oppose his extradition and are joined by several respected mastheads—The New York Times, The Guardian, The Washington Post—and journalists from John Pilger to Andrew Bolt to Alan Jones. In Australia, the overreach of this case unites the Greens with Barnaby Joyce, Anthony Albanese with George Christiansen, and all members of the Bring Assange Home Parliamentary Group with similar cross-party groups in Germany, Italy, Iceland and the United Kingdom. Artists are generating exhibitions, books, clothing, installations and sculptures, and street art, banner drops and stickers are proliferating. Media unions in Australia, the United Kingdom and internationally, representing 600,000 journalists worldwide, are working for Assange’s immediate release, condemning recent revelations of the CIA plot to assassinate or kidnap Assange in a full-page ad in The Times. Twenty-four leading press freedom and human rights organisations in the United States have called on Attorney-General Merrick Garland with renewed urgency to drop this prosecution. Voices only grow louder the longer this drags on.

After I’d spent two long nights watching a London courtroom from Australia until 2am, Clare Daly, a passionate Irish Member of the European Parliament, spoke for me:

For us to be here is both a crime and an honour. It’s a crime that we have to be here in support of the person who more than anyone else has exposed US war crimes in Afghanistan and Iraq. The criminals walk free, and Julian Assange is persecuted. That is a crime. It’s a crime that he is being tried under an extradition treaty negotiated by war criminal Tony Blair with war criminal George Bush so that the political arguments cannot be heard, because this is a political prosecution. And therefore, we are honoured to be here on the right side of history in defence of free speech, in defence of Julian Assange. Our efforts after today will only be redoubled because this will be won politically rather than legally. I salute you all for your efforts and urge you to continue.

This is precisely what growing numbers of people, from growing numbers of organisations and platforms, fully intend to do until Assange walks out of Belmarsh, free.

Eyewitness to the Agony of Julian Assange

John Pilger, 2 Oct 2020

I have sat in many courts and seldom known such a perversion of due process. This is due revenge.

About the author

Felicity Ruby

Felicity Ruby is a PhD candidate at Sydney University and co-editor of a A Secret Australia Revealed by the WikiLeaks Exposés (2020).

More articles by Felicity Ruby