By Nathan Fuller
Almost immediately upon District Judge Vanessa Baraitster’s early January ruling that WikiLeaks publisher Julian Assange would not be extradited from the United Kingdom to the United States on medical grounds, lawyers representing the U.S. announced their intent to appeal that decision. Two days later, Judge Baraitser, whose ruling rejected Assange’s free speech and democratic rights arguments, denied Assange’s bail application, meaning he will remain in the freezing cold, COVID-infected maximum-security Belmarsh prison in London as he waits for the appeal process to unfold. That process could take weeks, months, or longer if the U.S. refuses to drop the charges altogether.
Will the U.S. drop the charges?
Despite the prosecution’s declaration of intent to appeal, it’s unclear how much appetite there is in the U.S. for continuing the prosecution. The ruling and notice of appeal came in the final days of the Trump Administration, and the day after the verdict, the U.S.’s outgoing lead federal prosecutor Zachary Terwilliger told NPR that he wasn’t sure if the Biden administration would continue to fight for Assange’s extradition.
“It will be very interesting to see what happens with this case,” Terwilliger said. “There’ll be some decisions to be made. Some of this does come down to resources and where you’re going to focus your energies.”
President Biden was Vice President when the Obama administration explicitly decided not to prosecute Assange.
“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”
Press freedom organizations and newsrooms agree that the prosecution of Assange puts all journalists at risk, by criminalizing basic newsgathering activity as well as the publication of truthful information in the public interest. “Julian Assange’s Indictment Aims at the Heart of the First Amendment,” wrote the New York Times editorial board.
Appealing on Medical Grounds
The U.K.’s lawyers (the Crown Prosecution Service, or CPS) representing the U.S. confirmed to reporters that the United States officially filed its intent to appeal the ruling on Friday, January 15. They then have two weeks to file grounds for appeal, notifying the court of the types of arguments they intend to raise in their formal appeal.
In her verdict, Judge Baraitser ruled that sending Assange to the U.S. would violate Section 91 of the U.K.’s 2003 Extradition Act, which bars extradition if the “physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.”
Medical experts testified throughout the hearing that Assange has Asperger’s syndrome, that he has clinical depression, and that his specific condition and history combined with his prospective treatment in any U.S. prison all create a dangerously high risk of suicide.
Prison experts testified about the types of conditions Assange would likely face if he were extradited. The experts agreed that he would likely be held in solitary confinement, which the U.N. has deemed psychological torture, that he would get an extremely long prison sentence, and that he’d be under Special Administrative Measures which render a prisoner effectively incommunicado, even further isolating him from his family, friends, and the rest of his support system.
But even without these additional harsh measures Assange could expect, the mere ordering of his extradition from the U.K. would trigger this suicide risk. “I am as certain as a psychiatrist ever can be that, in the event of imminent extradition, Mr. Assange would indeed find a way to commit suicide,” testified psychiatrist Dr. Michael Kopelman.
The U.S. is expected to attempt to challenge these arguments on appeal.
Once the U.S. files its grounds for appeal, Assange’s defense team has 10 days to respond to that filing, indicating the ways in which they will argue against the U.S. submission.
These appeal submissions are then sent to a single U.K. High Court judge, who makes a determination as to whether to grant permission to appeal, based on whether that judge feels the grounds are reasonably arguable. If the judge rules to allow the appeal, the case is then scheduled to be heard by the High Court, a panel of two judges.
If the high court finally refuses to hear the appeal, which is rare, it will be the end of the road for the United States and Julian will be released. However, if the High Court admits the appeal, a date for an oral hearing will be set.
It is at the High Court stage where Courage Foundation beneficiary Lauri Love, a U.K. national accused of computer crimes in the U.S., successfully defeated an extradition request from the United States. In Love’s case, which Judge Baraitser referred to in her own ruling, the District Judge ruled he should be extradited, but on appeal, the High Court ruled that the United States could not guarantee adequate mental health care in its prison system and Love, who like Julian has Asperger’s syndrome, could not be protected from the high risk of suicide.
Potential further appeals
If the case were successfully appealed beyond the High Court, it could theoretically (though not automatically) be sent up to the U.K.’s Supreme Court and even higher to the European Court of Human Rights.
While these proceedings take place in the United Kingdom, Assange is only detained and at risk because of the U.S.’s prosecution, and the new Justice Department could simply drop the indictment and extradition request at any time.
To support Assange’s free speech rights and oppose his extradition sign the petition at Assangedefense.org
(Nathan Fuller is the Executive Director of Assangedefense.org and an associate of the United Kingdom-based Courage Foundation that defends whistleblower including Edward Snowden, Chelsea Manning and Julian Assange.)