The Julian Assange Question: True Claims about Prison Conditions or Lies in Service of Martyrdom?

Today and tomorrow, the United States will appeal Judge Vanessa Baraitser’s decision in the Julian Assange case that American prisons are too inhumane to house someone with suicidal tendencies safely. The US will argue several things about the decision, including that Baraitser had wrongly credited testimony of an expert that, like that of several others presented in Julian Assange’s extradition defense, was obviously misleading.

On Wednesday, judges said the weight given to a misleading report from Assange’s psychiatric expert that was submitted at the original hearing in January could form part of Washington’s full appeal in October.

Sitting in London, Lord Justice Holroyde said he believed it was arguable that Judge Vanessa Baraitser had attached too much weight to the evidence of Prof Michael Kopelman when deciding not to allow the US’s appeal.

[snip]

Delivering the latest decision, Holroyde said it was “very unusual” for an appeal court to have to consider evidence from an expert that had been accepted by a lower court, but also found to have been misleading – even if the expert’s actions had been deemed an “understandable human response” designed to protect the privacy of Assange’s partner and children.

The judge said that, in those circumstances, it was “at least arguable” that Baraitser erred in basing her conclusions on the professor’s evidence.

“Given the importance to the administration of justice of a court being able to reply on the impartiality of an expert witness, it is in my view arguable that more detailed and critical consideration should have been given to why [the professor’s] ‘understandable human response’ gave rise to a misleading report.”

The US government had previously been allowed to appeal against Baraitser’s decision on three grounds – including that it was wrong in law. Assange’s legal team had described the grounds as “narrow” and “technical”. The two allowed on Wednesday were additional.

One key issue is whether assurances the US offered to the UK that Assange won’t be held under Special Administrative Measures are worth the paper they were written on (they’re probably not).

The summary of the decision to accept the appeal said that the United States had “provided the United Kingdom with a package of assurances which are responsive to the district judge’s specific findings in this case.”

Specifically, it said, Mr. Assange would not be subjected to measures that curtail a prisoner’s contact with the outside world and can amount to solitary confinement, and would not be imprisoned at the supermax prison in Florence, Colo., unless he later did something “that meets the test” for imposing such harsh steps.

“The United States has also provided an assurance that the United States will consent to Mr. Assange being transferred to Australia to serve any custodial sentence imposed on him,” the summary said.

While the basis for refusing extradition — expanding on a precedent established with Lauri Love, whose Aspergers was far more severe and better established than Assange’s depression — may be controversial, the severe conditions in American prisons are not.

And that’s why the focus of Assange’s team over the past nine months and in the next few days will be so telling.

Assange’s team would need to look no further than Joshua Schulte — the accused source for the stolen CIA hacking tools who has been held under draconian Special Administrative Measures (which sharply curtail Schulte’s ability to communicate with anyone besides his lawyers and immediate family) for over three years — to demonstrate how WikiLeaks associates have been treated in US jails. Judge Paul Crotty recently rejected Schulte’s latest bid to end the SAMs before the case got reassigned — with no public explanation — to Judge Jesse Furman (Crotty must be getting close to going senior status, but Schulte also asked Crotty to recuse). In his order affirming the SAMs on Schulte, Crotty noted that the former CIA developer, “intentionally disclosed information he knows to be classified–including in a recently filed motion seeking declassification of that very information,” and prosecutors just warned that Schulte may face additional consequences for doing so.

In recent weeks, the defendant has, through standby counsel, attempted to file several documents on ECF that appear to contain classified information. Section 5 notices are particularly likely to contain classified information, since the statute requires the defendant to “include a brief description of the classified information” at issue, and prohibits the defendant from “disclos[ing] any information known or believed to be classified in connection with a trial or pretrial proceeding until notice has been given under this subsection” and the United States has had an opportunity to seek a CIPA § 6 hearing and, if applicable, an appeal from the Court’s determination under § 7. Should the defendant knowingly and intentionally publicly file or attempt to publicly file information “known or believed to be classified,” including as part of a § 5 notice, he could be subject to penalties.

Likewise Assange’s team could point to the case of Daniel Hale, who was jailed prior to sentencing because it was feared he would harm himself, but then was placed in the Marion Communications Management Unit, a less harsh regime restricting prisoners’ communications than SAMs, but nevertheless not something known to be justified by anything Hale did during pre-trial release, and something that exacerbates Hale’s isolation in prison.

Rather than focusing on these very uncontroversial issues, Assange’s team has spent the last nine months spinning wildly about topics other than US prison conditions. They did so, first, by falsely claiming that an article in which Siggi Thordarson reaffirmed one of the most damning things he said about Assange would doom the case against Assange, even though as a co-conspirator, Siggi is unlikely to be called as a witness. More recently, Assange’s team has embraced an article showing that CIA Director Mike Pompeo was unable to pursue a variety of measures to attempt to thwart the release of (still substantially unreleased) stolen hacking tools, even though the article proves that Assange lied wildly in his extradition hearing about when and why the US government changed its understanding of his actions and further shows that the US didn’t charge Assange in the face of Pompeo’s pressure, but only did so when Russia attempted to exfiltrate Assange.

Assange has a really good case to make about US jail and prison conditions.

Instead, Assange has spent the last nine months telling wild stories in an effort to make a man credibly accused of conspiring to hack US targets a martyr of journalism.

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54 replies
    • earlofhuntingdon says:

      I hope that doesn’t include Assange’s trial team.

      Martyrdom for Assange will not go down well with the establishment from which come the UK’s judges. Making justifiable complaints about the conditions in US federal prisons would be much more persuasive. Why not pursue a valid and more persuasive defense? It’s not as if Assange’s team were limited to a single argument.

      Like America’s capitalism, its prisons are at the extreme, as is the length of its sentences. (The two are linked.) Yet, when criticized about the inhumane conditions, bureaucrats seem to get in a circle and point to their right, as if that identified the person responsible.

      • ceebee says:

        Thanks for bringing the Thomas Nast cartoon to mind. Would there were an Aldermanic Committee to pay attention and fuss at neo-Tweed rascal systems.

  1. bmaz says:

    “Assange has a really good case to make about US jail and prison conditions.”

    No, he does not. The relative conditions in US detainment may be deplorable, but considered on an international spectrum really are not. Sure the US sucks, but Burma it is not. Poor, poor pitiful Assange considered Sweden too harsh. And there are day to day people more critical to such an argument than Julian Assange. I know some of them. Assange’s and Baraitser’s argument is garbage. And she can start in her own country, not here. How is Belmarsh?

    • emptywheel says:

      Assange has had visitors in Belmarsh that would not be permitted in the US, probably even at Alexandria.

      bmaz, you talk a lot about rule of law. If the UK decides, in a fair legal proceeding, that Assange should not be extradited, you have to deal with that.

        • emptywheel says:

          With your argument that US prisons are not as bad as those of Myanmar, you’re sure to be persuasive.

            • Chetnolian says:

              OK have your snark BMAZ, but do recall that many people, including me, were surprised that Judge Baraitser (note the spelling) made the decision she did, as it was against form. The evidence she heard in court must have been quite compelling.

              And by the way, she has been promoted to Circuit Judge from September, so someone, in our studiously non-political judicial system must think she’s good.

              • Kenster42 says:

                Nah, just yet another UK / European judge with an unjustifiable prejudice against the US. Happens all the time. bmaz is correct as usual about Baraitser.

                • Chetnolian says:

                  Both the above comments make it easier for me, most reluctantly, as BMAZ must know, to think the prejudice against the USA is far from unjustified. The USA does not rule the world. Get used to it.

        • Mike Sax says:

          What would be the implications if Assange’s argument is accepted? That every convicted criminal in a US prison must be let go regardless of crimes?

    • earlofhuntingdon says:

      Few would hold up Burma or Belmarsh as a worthy comparison for the average condition of prisons in Europe, Canada, or even the US.

    • subtropolis says:

      I don’t recall him claiming that Swedish prisons are too harsh. Perhaps I missed that. But it seems as though you are conflating his normal, human desire to avoid prison at all (in the case of the Swedish charges) with his counsel’s current arguments re the US prison conditions.

    • Dmbeaster says:

      Agree with bmaz here. The ruling just back door negates extradition based on prejudices. Who can be lawfully extradited under this standard? Or is Assange so allegedly delicate that he merits this weird exception?

      • Mike Sax says:

        Indeed-what would be the implications if Assange’s argument is accepted? That every convicted criminal in a US prison must be let go regardless of crimes?

  2. GKJames says:

    I wonder if his attorneys have broached with him the idea of pleading guilty to a single count and doing his 10 years, maybe even in Australia. Yes, it would tarnish the halo, but the risk is that, if he loses the argument on US prison conditions (a legitimate debate, but not a winning hand in an extradition context), he’ll be looking at a far longer sentence. He may not be an ideal client receptive to real-world legal advice, but someone should provide it anyway. He should be aware by now that the odds of the US government’s ceding the point and the UK government’s freeing him (even if not extradited) are long.

    • Norskeflamthrower says:

      Yes indeed, save the bastard from completely inhumane American high security prisons but make sure this douchebag serves time. I would like this to refocus folks on the reality of the concentration camps we have existing under the cover of the law and justice.

      • subtropolis says:

        It wouldn’t surprise me if his counsel did make that suggestion, if only in the Press. “He’s suffered long enough!”

  3. Ruthie says:

    I just heard a BBC World Service host interview one of Assange’s lawyers (Jennifer Robinson, I think), who made the standard argument that his prosecution as an unprecedented assault on press freedom (“The New York Times problem”), and the extradition was problematic based on US prison conditions and Assange’s fragile mental and physical state. When the host challenged her assertion that press freedom was at the heart of the case, bringing up the hacking allegations, she flatly denied that that’s what the charges were about. I was flabbergasted at the gaslighting, but I probably shouldn’t be.

  4. The Old Redneck says:

    I really think Assange is trying to create international political pressure. He figures that’s the only chance he’s got. That’s why they’re staying away from sound legal argument and straying into this kooky-ass territory.
    And anecdotally, I think people who aren’t looking at this carefully are buying a lot of it.

    • earlofhuntingdon says:

      How hard would it be to do both? I get the incessant PR campaign, but going into court by omitting obvious, sound legal arguments is self-destructive.

      • Silly but True says:

        Robinson has been relentless in her “free press” defense of Assange as persecuted publisher/journalist really since the moment Manning was arrested.

        Robinson from a decade ago:
        “‘Our position of course is that we don’t believe it applies to Mr. Assange and that in any event he’s entitled to First Amendment protection as publisher of Wikileaks and any prosecution under the Espionage Act would in my view be unconstitutional and puts at risk all media organizations in the U.S.,’ Assange’s attorney Jennifer Robinson told ABC News.”

        https://abcnews.go.com/US/assange-lawyers-prepare-us-espionage-indictment/story?id=12362315

        She’s been holding to various permutations of this through Assange’s first 2018 sealed indictment revealed in 2019, and the later 2019 superseding indictment. It seems like Robinson has really stepped up the “US wants to put away Journalist Assange in jail for 170 years” angle since the 2019 superseding indictment though.

      • The Old Redneck says:

        A very valid question. I guess it’s just dealing with optics, and their perception that their real audience (which is outside the court system) has a limited attention span for unsexy stuff like prison conditions.
        But again, what they’re doing is working. I understand the ACLU and Amnesty International are now publicly urging his release.

  5. AlaskaReader says:

    OT question for the legal minds here.

    Can a citizen petition the courts seeking relief from damages incurred because of prosecutorial inattention and inaction?

    If my local prosecuting attorney won’t bring charges, (or, let’s say, …my US Attorney General won’t bring charges) , is there any avenue whatsoever for the public to compel the courts to begin proceedings in regards upholding and honoring the rule of law?

    Petitioning the other two branches is often unproductive, am I, in some manner or other, required to bring suit? Is that my sole option?

    (Apologies if this is inappropriately presented.)

    • Silly but True says:

      In Assange’s case, he already had engaged Robinson in 2010 to defend against US espionage charges. What is at least public information is that a grand jury wasn’t convened until 2012, and his initial charge was a single count in a sealed indictment in 2018 that was accidentally leaked by DoJ, and then formally unsealed when Britain extracted him, which became a larger superseding indictment a few months later. Now, all of this comes after the first Manning investigation circa 2010 which likely produced enough evidence to charge Assange with a crime at that time, and why Assange and his defense team were expecting the eventual espionage charges since at least 2010.

      • bmaz says:

        You pitch all the little Assange propaganda I guess. The full boat. NO, he had not hired Jen to fight US espionage charges in 2012, because there were none to fight; what he was focused on then is never facing the rape allegations made in Sweden. There is no “public evidence” that a GJ was convened for Assange in 2012, in fact that was just bullshit the Assanganistas willfully and ignorantly peddled while claiming there was one or more sealed indictments. That, as most things with Assange, was a lie.

        At any given time, there are multiple GJs being run in EDVA, and they are often interchangeably used for investigation and evidence gathering. Is it possible that one or more were innocuously used in this manner? Yes, but there is not one shred of evidence that one specifically targeting Assange was empaneled. That is more fever dream bunk by the Assange cult, and you have no credible evidence other than their fever dreams to the contrary.

        There was an indictment in EDVA handed down in March of 2018, and revealed by a mistake in editing in November of that year in a separate case pleading.

    • Rayne says:

      If your local prosecuting attorney is an elected official, your recourse isn’t in the courts but at the polls through either a recall or electing a better prosecutor. There’s no recourse with a US Attorney who has been nominated by the president and approved by the Senate to their federal position.

      It’s possible the lack of a US Attorney may be an open issue; you might check to see who’s the current acting US Attorney if there isn’t yet a nominee pending approval.

      p.s. IANAL – your question may not be a legal matter but one of governance.

  6. Ewan says:

    What is the proportion of female vs. male amongst judges in the UK and US? An increase in the proportion of female in a profession is often a sign that the job is tougher and less valued than it used to be. In France it is now female by a very large margin (except for a few top positions naturally).

  7. Silly but True says:

    It seems like Assange lawyer Fitzgerald may be playing on Brexit/nationalism legacy: “He added that judges should use their power to “protect people from extradition to a foreign state where we have no control over what will be done to them.”

    Peel back Fitzgerald’s argument: pendulum in UK has swung back to “we can’t trust anyone but ourselves.” US-UK relations have taken a hit since the global War on Terror started, and US schizophrenic position towards UK on Brexit bobbling between Obama and Trump.

    If there is deep-seated mistrust on even relatively clear criminal justice matters that gets to level of concurrence by UK courts — and the shielding of Prince Andrew from FBI has’t helped matters — that’s not something easily fixed.

    Americans are accustomed to McCain casually joking “Bomb-bomb-bomb-Iran,” and that our jails are broke, or that mental illness isn’t really something that’s any real thing to take so seriously, but US is really an outlier within rest of world.

  8. punaise says:

    But haven’t you heard? Prison life is glamorous. /s

    The Prisoner is one of Napa’s most popular wines. It also glamorizes something ugly: incarceration

    The red blend is among the most influential products in modern wine history. But how long can it last with its unsettling imprisonment aesthetic?

    Yet one of the brand’s core elements has taken on a new gravity within the context of a growing conversation around race and criminal justice: its use of imprisonment as a marketing aesthetic.

    Those symbols connect the Prisoner to the national conversation around mass incarceration and systemic racism, in ways that have become difficult to ignore. Those may sound like bigger concerns than any winery should have to contend with, yet during the last year and a half, many California wineries have faced complicated issues courageously, attempting to address the fact that the wine industry has historically excluded people of color from positions of power, and alienated them as customers.

    Captivating.

    (may be paywalled)

  9. Silly but True says:

    Assange lawyer Fitzgerald just went there, arguing US can’t be trusted and Stella Morris could also be in danger, because the US considered plans to extrajudicially poison or kidnap Assange, as well as steal Assange’s son’s nappy.

    For it’s part, US said sure we’re seeking 175 years, but the most anyone’s really gotten sentenced to for Assange’s crimes are 63 months.

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