Over the 17 days of Julian Assange’s extradition hearing in London, prosecutors succeeded in proving both crimes and conspiracy. The culprit, however, was not Assange. Instead, the lawbreakers and conspirators turned out to be the British and American governments. Witness after witness detailed illegal measures to violate Assange’s right to a fair trial, destroy his health, assassinate his character, and imprison him in solitary confinement for the rest of his life.
Assange would never receive a fair trial in the U.S., but he’s not receiving one in Britain either.
By Charles Glass
Published on The Intercept, Oct 6, 2020
Over the 17 days of Julian Assange’s extradition hearing in London, prosecutors succeeded in proving both crimes and conspiracy. The culprit, however, was not Assange. Instead, the lawbreakers and conspirators turned out to be the British and American governments. Witness after witness detailed illegal measures to violate Assange’s right to a fair trial, destroy his health, assassinate his character, and imprison him in solitary confinement for the rest of his life. Courtroom evidence exposed illegality on an unprecedented scale by America’s and Britain’s intelligence, military, police, and judicial agencies to eliminate Assange. The governments had the edge, like the white man of whom Malcolm X wrote, “He’s a professional gambler; he has all the cards and the odds stacked on his side, and he has always dealt to our people from the bottom of the deck.”
The deck was clearly stacked. Assange’s antagonists were marking the cards as early as February 2008, when the U.S. Army Counterintelligence Center set out, in its words, to “damage or destroy this center of gravity” that was WikiLeaks. WikiLeaks, from the time Assange and his friends created it in 2006, was attracting sources around the world to entrust them, securely and anonymously, with documents exposing state crimes. The audience for the documents was not a foreign intelligence service, but the public. In the governments’ view, the public needed protection from knowledge of what they were doing behind closed doors and in the skies of Afghanistan and Iraq. To plug the leaks, the governments had to stop Assange. The Pentagon, the CIA, the National Security Agency, and the State Department soon followed the Counterintelligence Center’s lead by establishing their own anti-Assange task forces and enlisting the aid of Britain, Sweden, and Ecuador.
What a ride it’s been. The first recorded “black op” against Assange occurred on September 27, 2010, when a suitcase containing three laptops, hard drives, and clothing vanished from the aircraft carrying him from Sweden to Germany. Efforts to retrieve his belongings, which included privileged communications with his legal counsel, elicited vague excuses from the airline that it knew nothing. The fate of the purloined items became public knowledge in 2013 when information from his laptops appeared in prosecution briefs against U.S. Army whistleblower Chelsea Manning. In 2011, FBI agents went to Iceland to employ an 18-year-old informant, Sigurdur “Siggi” Thordarson, to spy on WikiLeaks. When Iceland’s authorities discovered the FBI’s illegal activities, it deported the FBI agents. Thodarson, whom the FBI had paid $5,000 and flown around the world, later confessed to stealing money from WikiLeaks and was convicted for sexually abusing underage boys.
Surveillance, constant wherever Assange found himself, intensified when he took political asylum in Ecuador’s London Embassy in June 2012 to avoid extradition to Sweden. He told me on one of my visits to him there that life in the embassy, with cameras and microphones everywhere, was like “The Truman Show.” The intelligence services observed his every movement and heard his every word. They spied on private discussions with his lawyers and his physicians. If a priest had visited the Catholic Assange, they would have violated the sanctity of the confessional.
Meanwhile, the NSA and Britain’s equivalent, GCHQ, tracked people who logged onto the WikiLeaks website. U.S. financial institutions attempted to cripple WikiLeaks financially by denying donors the use of credit cards and PayPal to support the organization. Assange’s legal counsel did not escape scrutiny. His Spanish lawyer, the famed former judge, Baltasar Garzón, who had prosecuted Chile’s Gen. Augusto Pinochet, was followed, and his computer was stolen from his office in late 2017. I had a curious experience in 2019, and I’m just a journalist. Two days after one of my meetings with Assange at the embassy, burglars broke into an office I shared with two designers in London. The only item missing was my computer, the thieves having left my office mates’ computers untouched. It’s impossible to prove who did it, but it’s not impossible to guess.
The extreme measures taken against Assange reached their all-time low when Lenín Boltaire Moreno Garcés replaced the pro-Assange Rafael Correa as president of Ecuador on May 24, 2017. Former employees of a private Spanish firm, Undercover Global SL, which was employed to provide security at the London embassy, testified on the final day of the Assange hearing that they installed more cameras and microphones, tampered with the mobile phones of visitors, stole the diapers of one of Assange’s babies to take his DNA, and discussed kidnapping and murdering him. They fed live video to the CIA of Assange’s legal consultations. Something similar happened to Daniel Ellsberg after he released the Pentagon Papers to the New York Times and Washington Post in 1971. The White House “plumbers,” who would later rob the Democratic Party headquarters in Washington’s Watergate Complex, broke into Ellsberg’s psychiatrist’s office to steal his medical files. The FBI had bugged Ellsberg’s phone without a warrant. So outrageous was the government’s behavior that Judge William Matthew Byrne dismissed the Espionage Act case against Ellsberg “with prejudice,” meaning that the government could not appeal.
Legal experts testified that Assange would not receive a fair trial in the U.S., but at London’s Central Criminal Court it was becoming apparent that he was not receiving one in Britain either. The first magistrate assigned to his case, Emma Arbuthnot, in 2017, turned out to have a husband and a son with links to people cited for criminal activities in documents published by WikiLeaks. When her family’s additional connections to the intelligence services and defense industries became public, she withdrew from the case for what she told Private Eye magazine was a “perception of bias.” She did not formally recuse herself or declare a conflict of interest. As Westminster’s chief magistrate, she nonetheless oversees the conduct of lesser magistrates. One is Vanessa Baraitser, who presided at Assange’s hearing. Records uncovered by the Declassified website showed that of her 24 previous extradition hearings, she ordered extradition in 23. Not a bad record from the prosecution’s point of view, but appeals courts subsequently reversed her verdict in six of the 23.
When Assange’s hearing convened on September 8, the defense applied for more time to prepare their case. The government had had 10 years of preparation and access to defense lawyers’ correspondence with their client. Assange’s advocates were permitted to see him only rarely and under observation at Her Majesty’s Prison Belmarsh, a maximum-security facility in south London for prisoners who “pose the most threat to the public, the police or national security.” Vital documents were not reaching him. Baraitser rejected the request. She also forced Assange to observe the hearing from a glass cage, usually reserved for violent offenders, at the back of the courtroom where he could not confer with his lawyers. Technical problems interrupted sound transmission to Assange, causing him to miss much of the testimony. When Assange addressed his lawyers across the room, the prosecution could hear what he said. Edward Fitzgerald, Assange’s lead barrister and one of Britain’s best, was in the ring with his hands tied.
Testimony demonstrating Assange’s legal handicaps and his failing health should be enough to prevent extradition. When police removed Assange from the Ecuadorian Embassy and incarcerated him in Belmarsh in April 2019, they did not allow him to take with him any of his belongings. These included not only his clothes, but also his reading glasses, which he was denied for several weeks. U.S. authorities seized all his legal papers and other possessions from the embassy without a warrant or the presence of Assange’s legal representatives.
Assange’s mental health has deteriorated during his confinement in Belmarsh. Numerous psychiatrists have attested that he is on the verge of suicide. Dr. Michael Kopelman, emeritus professor of psychiatry at King’s College, London, told the court, based on 19 consultations with Assange at Belmarsh, “I reiterate again that 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.” Guards at Belmarsh had already discovered a razor blade in Assange’s cell. Assange has sought Catholic absolution, asked to write his will, and called the Samaritans’ suicide prevention hotline. Lurking in the background is a family history of suicide, which makes that outcome more probable. His depression worsened during several months’ solitary confinement in the prison’s medical wing, from which he was released after other prisoners protested the abuse. Testimony by leading psychiatrists Drs. Sandra Crosby and Quinton Deeley confirmed Kopelman’s diagnosis of clinical depression. Deeley estimated that the risk of Assange killing himself if transferred to the U.S. was “high,” noting that “rates of suicide are higher in people on the autistic spectrum.” The U.N. special rapporteur on torture, Nils Melzer, declared, “Mr. Assange has been deliberately exposed, for a period of several years, to persistent and progressively severe forms of cruel, inhuman and degrading treatment or punishment, the cumulative effects of which can only be described as psychological torture.”
I sent Assange a transistor radio. The prison returned it. I then sent him a book on how to make a radio and that too came back.
Normal practice has not applied to Assange, who has received unique treatment at every stage of his incarceration. When he pleaded guilty for the relatively minor offense of bail evasion in April 2019, the court sentenced him to 50 weeks at Belmarsh. At that time, Jack Shepherd, convicted of manslaughter in the death of a young woman in a speedboat incident, received a sentence of half that time. Two-thirds of the 797 inmates then in Belmarsh were violent offenders, among them convicted terrorists and gang members. Nonviolent bail jumpers under usual practice serve their time in less restrictive Category B or C prisons, but Assange was not a normal prisoner. When he served his 50 weeks, the magistrate ordered him to stay in Belmarsh’s harsh environment for the duration of his extradition proceedings.
The petty persecution of Assange went so far as the refusal to allow him use of a radio, which is allowed under prison regulations. When veteran BBC correspondent John Simpson publicized this denial last June, I sent Assange a transistor radio. The prison returned it. I then sent him a book on how to make a radio and that too came back. I asked a friend in the prison service to intervene, but he demurred, “Belmarsh is a law unto itself.” A respected former hostage of Hezbollah in the 1980s then wrote to Belmarsh’s governor to point out that his captors had given him a radio that he called “a godsend and helped me considerably to get through the ordeal.” When the prison gave Assange a radio the next day, it was either a coincidence or the authorities’ avoiding the appearance of small-minded cruelty more obscene than that of Lebanese kidnappers.
More special treatment followed. At the hearing, the prosecution initially stated that Assange stood accused under America’s 1917 Espionage Act for publishing government secrets. When defense witnesses showed that Assange’s actions were no different from those of any other journalist cultivating sources, prosecutors reversed course to allow that any journalist publishing classified documents could be liable to prosecution. Given that Assange collaborated with the New York Times, The Guardian, El País, and Le Monde, their editors would be liable for prosecution. No one believes they will be. The prosecution failed to explain why another publisher, Crymptome.org, was not being investigated when it had published the massive Cablegate collection of State Department communications on September 1, 2011, a day before WikiLeaks had.
Not only did the U.S. choose to ignore other publishers of the American documents, but it also applied the law in a unique manner to suit their case against Assange. U.S. prosecutors had applied under the U.S.-U.K. Extradition Treaty of March 2003 to compel Britain to hand over Assange. Article 4(1) of the treaty, inconveniently for the prosecution, states, “Extradition shall not be granted if the offense for which extradition is requested is a political offense.” The prosecution and the court, however, cited British domestic legislation, the Extradition Act of 2003, which does not mention the political exclusion. This sleight of hand mirrored the contradiction between American claims to apply the Espionage Act to Assange, who is Australian, for actions undertaken in Iceland and the U.K., while denying him protection of a more fundamental American law, the Constitution’s First Amendment with its guarantee of freedom of speech and the press. Can the prosecution get away with choosing which British and American laws apply to Assange and which don’t? How much prosecutorial chicanery can a court swallow without destroying its own legitimacy?
Britain has ratified other international treaties that prevent dispatching Assange to the U.S. The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment requires the prohibition and punishment of torture in law and practice. It also “forbids the forced return of any person to a country where they would risk being tortured.” The United States ratified it in 1994. Two years earlier, it had ratified the International Convention on Civil and Political Rights guaranteeing immunity from torture, as well as the rights to life and free expression.
The U.S. has abrogated both treaties, as many documents published by WikiLeaks have shown, despite the fact that they have the force of law in signatory states. Amnesty International observed in 1998, three years before the September 11 attacks provided an excuse for torture, that the U.S. consistently “diluted” the conventions with “reservations, interpretations and statements that limit the protections they require.” It added, “The cruel use of restraints, resulting in unnecessary pain, injury or even death, is widespread in U.S. prisons and jails. Mentally disturbed prisoners have been bound, spread-eagled, on boards for prolonged periods in four-point restraints without proper medical authorization or supervision. Restraints are deliberately imposed as punishment, or used as a routine control measure rather than as an emergency response.” Amnesty also criticized the near-permanent solitary confinement in America’s “supermax” prisons with no sensory stimulation that “can cause severe physical and psychological damage.”
Can the prosecution get away with choosing which British and American laws apply to Assange and which don’t?
One recent British precedent would require denial of the extradition application on health grounds. Computer hacker Lauri Love, accused of “breaching thousands of computer systems in the United States and elsewhere,” has Asperger’s syndrome. An appeal court found in 2018 that sending him to the U.S. for trial would so harm his mental health that he had to remain in Britain. Physicians have diagnosed Assange with Asperger’s, and 117 psychiatrists signed an open letter declaring that Assange would not survive trial and imprisonment in the U.S.
An American former public defender, Yancey Ellis, described for the London hearing the conditions in Virginia’s Alexandria Detention Center, which would house Assange before and during his trial. Assange, he said, would be confined “at least 22 hours in a cell” that was “about the size of a parking space” with only a mat on a concrete shelf for a bed. Joel Stickler, an American prisoner advocate, testified that if Assange were convicted, his treatment at the “Alcatraz of the Rockies,” otherwise known as the U.S. Penitentiary Administrative Facility in Florence, Colorado, would be worse. Assange would be housed alone amid inmates like Unabomber Ted Kaczynski, Boston Marathon terrorist Dzhokhar Tsarnaev, FBI agent-turned-Russian spy Robert Hanssen, Mexican drug baron Joaquín “El Chapo” Archivaldo Guzmán Loera, and Oklahoma City co-bomber Terry McNichols. The prison’s regime is as ruthless as its prisoners: twenty-three-hour daily confinement in a concrete box cell with one window four inches wide, six bed checks a day with a seventh at weekends, one hour of exercise in an outdoor cage, showers spraying water in one-minute spurts, and “shakedowns” at the discretion of prison staff. There won’t be many other journalists and publishers there.
Barristers for the prosecution and defense have one month to submit closing arguments in writing to Baraitser, the magistrate, who will render her verdict on January 4. An impartial tribunal would have no option but to exonerate Assange — but fairness has not thus far featured in proceedings with the prosecution’s 10-year head start on the defense; the inability of Assange’s solicitor, Jennifer Robinson, to confer with him for six months; and the prosecution’s possession of his confidential lawyer-client documents and transcripts of his conversations with his advocates in heavy-handed violation of the law.
The maltreatment of Assange revealed at London’s Central Criminal Court will not end if he is extradited. Extradition will intensify his “cruel and unusual punishment.” The prohibition of such punishment appears in both the Eighth Amendment of the American Constitution and its predecessor, Clause Ten of England’s 1689 Bill of Rights. That fundamental protection has applied to everyone in Britain and America for centuries. Once again, though, they may make an exception for Assange.