Rally in Sydney, Australia, demanding freedom for Julian Assange, May 24, 2023. Photo: Steven Saphore/Anadolu Agency via Getty Images.
By Mary Kostakidis – Feb 5, 2024
Julian Assange will soon find out whether he will be granted a final appeal in the UK in his fight against extradition, or will soon face the cruel vengeance of the US.
In Julian Assange’s extradition case, Magistrate Judge Venessa Baraitser determined he would not survive imprisonment in a US Supermax facility—that he is very likely to commit suicide.
One of the final witnesses in the four-week extradition trial in 2020 was an American lawyer whose client Abu Hamza was held in ADX Colorado where Julian is likely to be sent. Abu Hamza has no hands. He was extradited from the UK following assurances by the US that the prison system was able to deal with the special requirements of such a prisoner.
His lawyer testified that despite assurances he would not be placed in total isolation, that is indeed where he was kept, under Special Administrative Measures (SAMS), and the US had also failed to deliver on other undertakings to protect his human rights: he did not have a toilet in his cell he could operate. He was stripped of all dignity, contrary to guarantees.
In the case of David Mendoza Herrera, the Spanish government successfully pursued the return of the Spanish citizen who was extradited to the US following assurances the US reneged on—a process that took many years while the prisoner attempted first to seek redress in the US but ultimately only succeeded after suing the Spanish government for failing to protect his rights. It was forced to act after the Spanish Supreme Court virtually threatened to suspend the Spain-US Extradition Treaty.
The assurances provided by the US in its 2021 High Court Appeal of the District Court’s decision in Assange’s case were not tested in Court. They were automatically accepted, a judge expressing complete confidence in the reliability of a guarantee from the United States Government, and differentiating between the guarantee of a State and that provided by a Diplomat.
(Whilst a Diplomat’s assurance may involve a different signature at the bottom of the page, surely it appears there only after the boss’s approval, but evidently this makes a difference).
Significantly however, the assurances were also conditional—they could be revoked at any time, so not worth the paper they were written on, no matter who signed them.
Since that decision was handed down though, the UK Supreme Court has delivered a landmark ruling in a case where the UK government had accepted assurances provided by a foreign government (Rwanda). It determined that such assurances cannot be automatically accepted—that there is a requirement for “meaningful, independent, evidence-based judicial review focusing on the protection of human rights on the ground in that country.”
In Julian’s case, it is the human rights of national security prisoners in the US, their treatment and the conditions in which they are kept.
The UN considers solitary confinement beyond two weeks as torture—special rapporteurs have been arguing this for decades. In condemning the treatment of Chelsea Manning in a US prison, then Special Rapporteur on Torture Juan Méndez said:
Prolonged solitary confinement raises special concerns, because the risk of grave and irreparable harm to the detained person increases with the length of isolation and the uncertainty regarding its duration… I have defined prolonged solitary confinement as any period in excess of 15 days. This definition reflects the fact that most of the scientific literature shows that, after 15 days, certain changes in brain functions occur and the harmful psychological effects of isolation can become irreversible.
Abu Hamza has been in solitary confinement for nine years. His lawyer testified walking was too painful for him because his toenails were so long, and his pleas for them to be cut were ignored.
Julian Assange Approaching Five Years of Imprisonment Without Conviction
Significant recent changes in Assange’s health
The automatic acceptance and reliability of the assurances were not the only problem at that time.
A serious problem that arose during that hearing was its failure to note or take into account the change in Julian’s medical condition. It is a critical failure because the decision delivered was based on assurances the US prison system could mitigate against his known risk factors—the risk he would commit suicide. But he had developed another serious physical risk factor.
After the four-week Extradition hearing in the lower court where Assange appeared boxed in a glass booth at the back of the court where he was prevented from communicating with his lawyers, he was permitted to appear via videolink from Belmarsh at subsequent substantive hearings.
At the start of the US Appeal there was a brief pre-hearing chat between Assange’s lawyer and the judge to the effect that the defendant has elected not to appear due to an increase in medication.
It was extraordinary and inconceivable he would choose not to observe the hearing via videolink. Indeed I was later informed by his wife Stella he had wanted to appear but had not been permitted to by the prison.
Both his absence and the explanation flagged a problem.
Assange had not missed a single hearing. He had shown great determination in his struggle to engage with the drama unfolding in court despite enormous challenges such as not being able to attract his lawyers’ attention (after being denied the tools and time to prepare for his own defence), and in spite of medication and a dramatic deterioration in his health as was so throughly documented by former UN Rapporteur on Torture Nils Melzer in his book The Trial of Julian Assange: A Story of Persecution.
Why was he so heavily medicated so as not to be able to sit in the video-link room at Belmarsh? What had necessitated this increase in medication? This question was directly pertinent to the decision the court had to make, but I heard no question from the judge about it and the hearing proceeded.
Then, remarkably, some time into the hearing, Julian appeared.
We journalists observing via a link could see him in a window on our screens. He would have been able to see and hear the judge, and those in the courtroom would be able to see him on a monitor as we could.
He looked mighty unwell, not only drugged. He had to use his arm to prop up his head but one side of his face was noticeably drooping and one eye was shut.
During these hearings we were given very occasional, brief glimpses of the defendant—time enough to note he is still observing his own legal proceeding, be it in a depersoned way. I asked the video link host on the chat facility to show us more of the defendant—we needed a better and more frequent look at him as he looked unwell.
Journalists are warned when we join the video-link that using the chat facility for anything other than communicating about technical issues and only with the host (hearings were frequently hamstrung by audio problems) could result in access being withdrawn. But many of the other 30 or so journalists on the link were sending Me Too messages on the Chat. Remarkably and to my relief the host obliged & we were shown Julian more often and for longer than in any previous hearings.
So after the bizarre news Julian was not going to attend his own hearing, the second thing I could not understand is that given his condition when he did appear, there were no questions or adjournment. Those deciding his fate were not perturbed by his state, or had failed to notice what was immediately evident to us.
Julian persisted in his attempt to focus, but he was clearly severely hampered. He eventually gave up, stood up and moved away from the monitor camera. It was as if he could no longer abide the humiliation of being scrutinised by people unknown, witnesses to a feeble, failed attempt to command his body and mind, a mind that has been razor sharp and never before let him down.
The public learnt some nine weeks later, and days after the judgement came down clearing the way for Julian’s extradition, that he in fact had had a TIA, a Transient Ischaemic Attack or minor stroke, often a precursor to a major, catastrophic one when prompt access to an MRI machine would be vital if his life was to be saved.
I don’t know whether it is known, exactly when Julian had the stroke. The monitoring of prisoners is not exactly tailored to pick up and quickly respond to such silent stealthy symptoms. Did the stroke occur before the hearing? Was that why he was so heavily medicated? Or did it occur at the time of the hearing?
One thing is clear: he has had a stoke, so his condition has changed, and the assurances accepted took no account of this, though the Court’s decision was handed down long after he had the stroke and around the same time it was finally diagnosed and made public.
One of the two Justices presiding over the US Appeal, Ian Duncan Burnett, was the Chief Justice of the High Court at the time. His decision in the case of UK citizen Laurie Love set a precedent where extradition to the US was denied on the basis of a medical condition.
This engendered a little hope that he may not reverse the District Court’s decision in Julian’s case. But as Law Professor Nils Melzer remarked, you don’t need the Chief Justice on a case where he has already set a precedent that can be followed. However you do need him if his precedent is to be overturned.
Throughout the hearing, the Love decision loomed large in our minds and Love was present in Court, but we realised this potential pathway was a dead end when it was finally raised by Julian’s lawyers.
The Chief Justice responded swiftly, dismissively and categorically: “Oh but that was an entirely different case. He had eczema.” (Verbatim to my memory)
So the difference between being extradited or not, was eczema, and there would be no joy for Julian in this court despite the marked deterioration in his physical and psychological health.
Julian sought leave to appeal the decision of the High Court, in the Supreme Court, but that Supreme Court’s determination was that there were no arguable points of law to form a basis for an Appeal.
The upcoming hearing
Over two days on February 20-21, a panel of two High Court judges will rule on whether Julian can appeal both the Secretary of State’s decision to extradite him and Judge Baraitser’s decision on the basis of the all grounds he argued which she knocked back, such as the political nature of the prosecution and the impossibility of a fair trial for him in the US.
The reliability and adequacy of the US assurances that he will not be held in a super max prison, nor under SAMS, that his suicide can be prevented, that he would be returned to Australia to serve out his sentence at some point, have not been tested in court, and now the medical condition for which they were furnished has changed. And in the meantime there has been a landmark ruling by the UK Supreme Court in another case, regarding the necessity for judicial review of foreign government assurances.
A letter very early this year to the UK home secretary from a cross party group of Australian parliamentarians is an important and timely one, requesting he “undertake an urgent, thorough and independent assessment of the risks to Mr. Assange’s health and welfare in the event he is extradited to the United States.”
Assange has made an application to attend this month’s hearing in person so he can communicate with his legal team.
The judges may make an immediate decision at the conclusion of the two-day hearing or reserve their judgement.
If Assange wins this case, a date will be set for a full Appeal hearing.
If he is denied the right to appeal there are no further appeal avenues at the domestic level.
He can then apply to the European Court of Human Rights, which has the power to order a stay on his extradition, a Rule 39 Instruction, which is only given in “exceptional circumstances”. It may however be a race to lodge the Appeal before he is bundled off on a plane to the US.
If Julian Assange is extradited and the US is successful in prosecuting him, he will not receive a fair trial there and unlikely to receive the constitutional protection afforded to its own citizens, the US will have redefined in law, investigative journalism as “espionage.”
It will demonstrate that US domestic laws, but not protections, apply internationally to non-US citizens.
It will have cost Assange his freedom & likely his life—an example to anyone who attempts to discredit the state sanctioned narrative. A narrative that has been shattered by independent and citizen journalists in Gaza—explosively, daily, globally, and irrevocably.
Mary Kostakidis is an Australian journalist who presented SBS World News for two decades as Australia’s first national primetime news anchorwoman. She is covering Julian Assange’s extradition hearing.
