Saving Assange Now or Never
Julian Assange will soon find out whether he will be granted a final appeal in the U.K. in his fight against extradition, or will soon face the cruel vengeance of the U.S., says Mary Kostakidis.
By Mary Kostakidis
In Julian Assange’s extradition case, Magistrate Judge Venessa Baraitser determined he would not survive imprisonment in a U.S. Supermax facility – that he is very likely to commit suicide.
One of the final witnesses in the 4 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 U.K. following assurances by the U.S. 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, and the U.S. had also failed to delivered 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 their citizen who was extradited to the U.S. following assurances the U.S. reneged on – a process that took many years while the prisoner attempted first to seek redress in the U.S. 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-U.S. Extradition Treaty.
The assurances provided by the U.S. in their 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 U.K. Supreme Court has delivered a landmark ruling in a case where the U.K. 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 U.S., their treatment and the conditions in which they are kept.
The U.N. considers solitary confinement beyond 2 weeks as torture – special rapporteurs have been arguing this for decades. In condemning the treatment of Chelsea Manning in a U.S. prison, then Special Rapporteur on Torture Juan Mendez 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.” [Emphasis added.]
Abu Hamsa has been in solitary confinement for nine years. His lawyer testified walking was too painful for him because his toe nails were so long, and his pleas for them to be cut were ignored.
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 U.S. 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 U.S. 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 U.N. 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 & 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 U.S. Appeal, Ian Duncan Burnett, was the Chief Justice of the High Court at the time. His decision in the case of U.K. citizen Laurie Love set a precedent where extradition to the U.S. 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 Feb. 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 U.S..
The reliability and adequacy of the U.S. assurances that he will not be held in a super max prison, nor under S.A.M.S., 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 [U.K.] Supreme Court in another case, regarding the necessity for judicial review of foreign govt assurances.
A letter very early this year to the U.K. home secretary from a cross party group of our 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 U.S.
If Julian Assange is extradited and the U.S. 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 U.S. will have redefined in law, investigative journalism as ‘espionage’.
It will demonstrate that U.S. domestic laws, but not protections, apply internationally to non-U.S. 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.
This is the text of a speech delivered by Mary Kostakidis to a conference on Julian Assange held in Sydney, Australia on Jan. 29.
Journalist Mary Kostakidis presented SBS World News for two decades as Australia’s first national primetime news anchorwoman. Previous articles include “Watching the Eyes” for Declassified Australia. She covers Julian Assanges’s extradition court proceedings live on Twitter.
A Visit to Julian Assange in Prison
Drawing by Nathaniel St. Clair
In Mid-December 2023, Charles Glass, the esteemed writer, journalist, broadcaster, and publisher visited with Julian Assange, an inmate at Belmarsh Prison in the U.K. Assange has been confined there since April, 2019. He is awaiting his final appeal to quash U.S. efforts to extradite him to face some of the same Espionage Act charges I was confronted with. Glass chronicles the visit in a recent piece in The Nation. His account took me right back to prison. Glass’s visit with Assange could have been a visit with me.
I fondly remember Charles Glass. He wrote to me while I was in FCI Englewood, the prison I was bound in after being convicted of violating the Espionage Act in 2015. He and others sent me a few of his books, notably Americans in Paris and Tribes with Flags. I was extremely grateful for such support. I had read them before, but reading from prison allows a different perspective, even on paths previously traveled. My prison eyes were reading them for the first time. In some ways, his visit with Assange was a similar overture of support for me and my experience in prison.
I make no attempts to compare myself to Julian Assange, but I know what he is going through and what he is facing. Glass’s statement that Assange’s “…days are all the same: the confined space, the loneliness, the books, the memories, the hope that his lawyers’ appeal against extradition and life imprisonment in the United States will succeed” also applied to me. But, what was particularly profound for me was reading about Glass’s experience as a visitor to someone confined to prison. For me, time with a visitor was a highly-desired oasis in the never-ending desert that is prison. It was the one time I could have a more substantial connection with the world outside the prison walls. Email and letters were always appreciated, but nothing could replace actual contact, or at least being in the same room as a loved one or supporter. The value of having a visitor cannot be understated, the other days fighting against the droll, oppression, and monotony of prison were all endured for the singular experience of a visit. I imagine that Assange has had the same longing anticipation of an upcoming visit, the one time in prison when you can be reminded that you are still alive, still human.
Glass deftly characterizes the prison where Assange is being held as “bleak,” and “inhumane”. I realized the same descriptors apply to the experience visitors must face. Visitors and inmates alike go through an emotional and offensive gauntlet just for the privilege of a visit in prison. For me, it was a painful and desired rollercoaster of emotions with the high of the visit and the low of the eventual parting at the end of it. It was always a struggle to resist having the visit tainted by the dehumanizing strip searches I had to endure before and after each visit. It was difficult to truly understand that my visitor went through a similar hell. Glass’s visit with Assange re-informed me of the other side of prison visit.
When visiting anyone in prison, inmate and visitor alike are faced with arbitrary rules with no real guidance or reason. It is a daunting task trying to comply with the rules when they change at the whims of the gate-keepers. I had a painful chuckle reading how the gate-keepers deemed books Glass brought for Assange as “fire hazards” and therefore not allowed. Belmarsh’s other restrictions on books, how they can be received, and how many an inmate can have are not dissimilar to the same arbitrary rules at FCI Englewood. There is no redress, no challenge of authority at this level. If you want the visit or the books, you have to follow the rules, whatever they are and however they are enforced at the time.
Whenever my wife Holly would visit, I could sense her effort to be strong for me and not give in to the hell she had to go through just to have time sitting next to me and holding my hand. Time and again she endured a gauntlet of nonsensical and punitively arbitrary visiting rules. Holly never knew if what she was wearing would be acceptable or if the body search would once again border on assault. Approaching the prison on visiting day, she could only hope that the gate-keepers were having at least a good day and maybe save her some indignity. Some guards had well-founded reputations among inmates of being unnecessarily cruel, particularly with female visitors. I was also fortunate enough to be visited by other friends, including Norman Solomon from Roots Action. In many ways, I felt horrible that they had to endure such humiliation to come see me, prison is designed to prove to you that you don’t have much worth, if any. I imagine that Assange may have felt the same as he was visiting with Glass.
I always wondered what it was like for Holly and Norman waiting in the visiting room with other “free” people who had been successful in getting past the gate-keepers to visit with their inmates. Though strangers to each other, they shared an unfortunate commonality, hoping for nothing more than time with a loved one or friend. Regardless of their lives outside prison walls, each and every visitor has to hope that the system will at least allow for the simplest of human needs, time.
Somewhat shamefully, I found myself a bit jealous to read that Glass and Assange were able to be face to face during their visit. The setup in FCI Englewood was a bank of attached chairs, Holly and I could not face each other. Any motion to sit askew or move around in the chair to face each other could be grounds for ending the visit. Once I found Holly, we could have an embrace at the beginning and end, maybe a kiss. I rarely let go of her hand during the visits. Once together, a big chunk of time was spent deciding what to get from the vending machines. Then Holly would have to leave me to stand in line at the vending machines and then the microwave. The choices I had, if the gate-keepers bothered with restocking were not much different from the junk available to Glass to get for Assange. I know that Assange felt as I did, regardless of the food in the visiting room. It was leaps and bounds better than the food served any other time in prison.
Once the preliminaries were taken care of, we could get down to the visit. But, there was never time enough. There was never enough time to say or hear what you wanted or hoped. In prison, only during visits does time move faster. A final embrace and then getting in line for another strip search was how the visits with Holly ended for me. I felt lucky if she was in the first group of visitors who were escorted out, that way neither of us could see the pain on each other’s face from across the room. Glass’s visit with Assange ended pretty much the same way, the visitor is free to go outside, the prison goes back to his cell.
I encourage you to read Glass’s account of his visit with Assange. It is much more than merely the account of a visit with a person in prison, it is a representation of the Espionage Act and how it is being used by the U.S. government to silence and punish those who dare expose its wrongdoings and illegalities. Much like prison visiting rules, use of the Espionage Act is arbitrary and punitive, justice or security have nothing to do with it. We are all becoming prisoners to the whims of the gate-keepers who are using the Espionage Act to keep us ignorant and in line. With Assange’s extradition, freedom of the press, along with government accountability and a myriad of other supposed freedoms from government persecution are at stake. We will each find ourselves either the visitor or the visited if the current use of the Espionage Act is allowed to continue. Whether visitor or visited, the Espionage Act puts us all in prison. I was there with Charles Glass in that prison visiting room. Considering the stakes if Julian Assange is extradited, we all were.
This first appeared on ProgressiveHub.net.
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