USA Vs. Assange - S02E01 - The Extradition Appeal (27-28th October 2021)

What we know

• The USA has decided to appeal UK's first instance decision to NOT extradite Assange
• The UK as granted the USA permission to appeal
• The USA want to oppose the main arguments that lead to Assange's non-extradition: His mental health being critical / the conditions in US prisons that will not prevent him from commiting suicide, as evidenced by an email from the UK Crown Prosecution Service answering questions from the New York Times.
• The Defense may want to oppose the other arguments (“cross-appeal”) of the first instance decision: denying the journalistic, political, and general interest character in Assange's actions; claiming that harm was caused by WikiLeaks releases; etc.
• USA's prosecution is still going on despite a change to Bidens' administration. Gordon Kromberg still seems to be in charge at the DoJ.
• The procedure goes on, with upcoming decisions on whether or not the Defense will be granted its cross-appeal points, and about the schedule of the upcoming hearing.
• A preliminary hearing was held on August 11th 2021. It granted to the US permission to appeal on all ground they requested.
• The hearing will be held in the Royal Court of Justice, The Strand, London.
• The hearing is tentatively scheduled for October 27th, for two days (both parties agreed this would be too short!)

What we don't know

• Will the Defence be granted the permission to appeal on other grounds (“cross-appeal”) than the ones the USA are appealing on?
• Will the USA finally, once and for all, drop the case, which would be the only proper issue to the case.
• If appeal is won by Assange, what comes next? Will he be free? Where could he go?

"Assurances" from the US

Prosecutors will talk quite a lot about “assurances,” which were offered by the US government AFTER the extradition request was blocked by District Judge Vanessa Baraitser on January 4 and AFTER the extradition hearing in September 2020.

These are the “assurances”:

(Meaning: “Assange will not be submitted to Special Administrative Measures (SAMs = solitary confinment = torture)… *except* if he deserves so.”)

What are SAMS? “solitary confinement, technically, for 24-hours a day”, said the former warden of the Metropolitan Correctional Centre in New York. No communication with other inmates. 30 minutes on the phone per month monitored by the FBI. Mail, heavily screened.

More on these “assurances” by Amnesty: https://www.amnesty.org/en/latest/news/2021/07/the-us-diplomatic-assurances-are-inherently-unreliable-julian-assange-must-be-released/

Preliminary Appeal hearing - August 11th

According to the Courage Foundation, a “preliminary hearing” for the appeal happened on August 11th. Preliminary hearing clearly ruled in favour of the US.

Different High Court judge than the one granting “limited appeal” gave the US all they wanted: They will be able to appeal on the five grounds they wanted to appeal on, and not limited to only two of them as in previous decision.

Full appeal hearing as bee (tentatively) scheduled for October 27th, for a duration of 2 days (which both parties considered too short).

For more about the procedure, check the flowchart detailing the next steps.

More Context about the Appeal by Stella Moris

from https://www.crowdjustice.com/case/assangeappeal/ (published on August 6th, ahead of the August 11th preliminary hearing.)

It is seven months since Julian’s extradition was blocked by Judge Vanessa Baraitser, yet he has remained in prison, suffering and isolated, despite having committed no crime.

It took the court six months to decide whether to grant the US government permission to appeal. Permission has been granted on a limited basis; that is to say, two out of the five grounds that the US applied to appeal on were rejected by the High Court judge who reviewed the application.

The next court date will be on August 11th at the Royal Courts of Justice in central London. Julian is expected to attend in person.

Whatever spin the US might try to put on the appeal, it is important to remember that it has been granted on limited grounds. The case was reviewed by Mr. Justice Jonathan Swift, one of the most senior High Court judges in charge of the Administrative Court, and he found that Judge Baraitser had rightly relied on expert evidence that Julian’s clinical condition meant that he is at a high risk of death if the UK court orders his extradition, as well as supporting her assessment on the integrity of the expert witnesses.

The United States government is not accepting the High Court’s ruling, which allows only limited grounds of appeal and this is what next Tuesday’s hearing will be about: the US is asking different High Court judges to grant permission for the two grounds that it lost on, in an attempt to appeal on all five grounds. During the hearing the US government is set to attack the professional integrity of Professor Michael Kopelman, an eminent expert in his field, in an effort to rule his important evidence regarding Julian’s mental health inadmissible.

Any losing party, the US in this case, is allowed to attempt to have different judges review the grounds that they have lost on. But the US government’s attack on Dr. Kopelman is particularly vexatious. The US government will try to re-run arguments that have already been settled by two different judges. It is the latest move by the US government to try to game the British legal system. The US government’s handling of the case exposes the underlying nature of the prosecution against Julian: subverting the rules so that Julian’s ability to defend himself is obstructed and undermined while he remains in prison for years and years, unconvicted, and held on spurious charges. The “process” is the punishment.

However much the prosecution plays to the gallery on August 11th in its efforts to attack the reputation of one of the most well-respected neuropsychiatrists in Britain, the real substance of the appeal will take place when the main appeal hearing will be heard in full later this year. But the scope of that hearing, three or five grounds, will be determined on the 11th of August.

After having lost the extradition case in January, the US government issued what is referred to as “undertakings” or “assurances”, though both terms are misnomers, as regards to its highest-security federal prison in the US, Supermax ADX Florence, and so-called Special Administrative Measures (SAMs), as well as prisoner transfer arrangements to Australia to serve the final part of his (potential 175-year) sentence.

The first thing to point out here is that any assurances short of dropping the case entirely are worthless. Julian is being punished for doing his job. He published true information that the public had the right to know and which revealed serious wrongdoing on the part of states and their agents.

Some people have wrongly suggested that the US government’s so-called “assurances” are significant concessions in relation to Julian’s case – for anyone who looks at their wording it is clear that they are no such thing, as Amnesty International has repeatedly exposed.

Here are a few reasons why:

• According to its own filing, the caveats to these “assurances” render them meaningless – the US government can still impose the conditions that Judge Baraitser concluded would kill him, if it decides that Julian “do(es) something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX”. In other words, it imposes no obligations whatsoever on US authorities to rule out SAMs and ADX, and asserts the US government’s prerogative to impose ADX/SAMs conditions once Julian is in US custody
• According to the US government’s own filing, the “assurances” can be overridden by US intelligence agencies on national security grounds (28 C.F.R. § 501.2 or § 501.3), with no transparency at all. Julian has famously exposed how these powerful US agencies engage in criminality and wrongdoing, including torture, in many WikiLeaks publications over the years. News reports have listed US agencies as having carried out illicit activities targeting Julian and our family. It is fanciful to suggest that these agencies would not use their statutory powers to bury Julian alive and in so doing cause his death once he was in US custody
• More than 80,000 prisoners a day are held in solitary confinement in the United States outside the Supermax system and the SAMs system according to the US Bureau of Justice Statistics. Even if the US did not apply SAMs or ADX, Julian would be certain to fall into the category of prisoners held in solitary confinement, conditions that the medical experts in this case have found would drive him to suicide (only some 45 people are held in SAMs and approximately 500 in ADX Florence).
• The pledge that he could finish his sentence in Australia is not a concession, it is existing, agreed protocol between the US and Australia – but it would only be accessible to Julian when all appeals have been exhausted, which could take more than a decade because the case would inevitably go all the way to the Supreme Court
• The history of US conduct of the case – bugging the Ecuadorian Embassy, spying on Julian and our family, targeting Julian’s lawyers and violating legal privilege recording his lawyers’ meetings with him, harvesting DNA from our baby, to name but a few of the known aspects, shows that the US government cannot and should not be trusted to deliver on any “undertakings” they make in relation to Julian. The only criminal activity that has taken place in this case has been committed by the prosecuting state against Julian, his colleagues, friends and family.

Amnesty International says: “Such latitude to alter the terms of the core assurances after Assange’s transfer to the US renders them irrelevant from the start since he would remain at risk of ill-treatment in US detention at the point of transfer and afterward”. Julia Hall, their expert on Counter-Terrorism, Criminal Justice and Human Rights, says: “These are not assurances at all…these are inherently unreliable, it promises to do something and then reserves the right to break the promise”. (https://www.ilfattoquotidiano.it/in-edicola/articoli/2021/07/24/julia-hall-amnesty-international-expert-on-national-security-assange-should-be-released/6272346/)

The so-called “assurances” are not the issue before the court on August 11th. There have however been numerous fleeting reports about the “undertakings” that have completely misconstrued their scope and nature, wrongly suggesting they remove the factors that the Magistrate took into consideration to rule against extradition on January 4th.

What the US is proposing is a formula to keep Julian in prison effectively for the rest of his life despite mounting international pressure for his release and a widespread acceptance that the US case is built on lies.

It is ironic that the US appeal was granted days after investigative journalists in Iceland revealed that the Department of Justice’s lead witness Thordarson has admitted that allegations in the indictment against Julian that are based on his testimony are fabricated, and that he became a DoJ witness in exchange for immunity from US prosecutors (https://stundin.is/grein/13627/). Those discredited allegations have grossly misled the UK courts and are repeatedly cited in the judgment delivered on January 4th.

Julian spent his 50th birthday behind bars in Belmarsh prison, where he has been on remand for two years. He is not a criminal. He is a journalist and a publisher, and he is being punished for doing his job. Julian’s freedom is coupled to all our freedoms - no democratic society can ever make journalism a crime.

Although there is growing pressure from legislators, human rights organisations and press freedom groups from around the world for the US to abandon this baseless, politically motivated prosecution, unfortunately we must prepare to fight it in court again.