Thread by @kgosztola

The Crown Prosecution Service goes before the British High Court of Justice to present the United States government's appeal in extradition case against Julian Assange. Proceedings start around 10:30 am London Time.

Thread for updates on the first day of the appeal hearing.

This lays out each of the US government's "grounds for appeal" that will be argued at the High Court of Justice.

(If at any moment you have trouble understanding what is being argued, here's a guide for the appeal hearing: thedissenter.org/a-guide-to-the…)

Prosecutors will talk quite a lot about "assurances," which were offered by the US government AFTER the extradition request was blocked by District Judge Vanessa Baraitser on January 4 and AFTER the extradition hearing in September 2020.

These are the "assurances":

WikiLeaks founder Julian Assange is in Belmarsh high-security prison, where he has been in custody since he was expelled from Ecuador embassy in April 2019. The district judge denied his release two days after blocking extradition due to his mental health. thedissenter.org/judge-keeps-as…

Assange was due to follow the proceedings via video from a room at Belmarsh prison. He is not feeling well and will not be following along today.

Lord Chief Justice Burnett of Maldon and Lord Justice Holroyde are the judges on the High Court of Justice who are presiding over the appeal hearing.

Prosecutors are presenting their argument until 4 pm London Time. It will take up the vast majority of the first day.

James Lewis QC for the Crown Prosecution Service opens with a summary of the appeal and why High Court should allow.

In light of "assurances," Lewis contends the District Judge would have sent the extradition of Assange to Secretary of State.

James Lewis focuses on the importance Judge Baraitser gave to special administrative measures or SAMs. He stumbles, pauses, and says "matters" instead of measures. He is fumbling around a bit, hopping around between several documents.

James Lewis maintains the "assurances" are "binding" on the US government. If Assange's legal team had concerns about them, they could take them up with the UK government. He refers to a diplomatic note.

Article 3 of the European Convention on Human Rights is being raised by James Lewis. However, Assange's legal team did not highlight the inhumanity of US jails or prisons under Article 3. They did so under extradition law, which subsequently led to the judge's decision.

Lewis argues defense attorneys were focused solely and the defense psychiatric evidence (from Professor Michael Kopelman) was predicated on Assange being put in SAMs and detention at ADX Florence, the supermax facility in Colorado.

Though the court was informed by Assange's legal team that he would not be joining, he is now in the room at Belmarsh following via video. He has a face mask, neck tie, and white long-sleeved dress shirt.

James Lewis is belaboring this point about SAMs and ADX Florence being a focus. It's as if the Crown Prosecution Service conducted a keyword search of the copious amount of legal submissions, and they decided let's open with a sentence from every single search result.

James Lewis: "Once conditions of SAMs and ADX Florence are removed, once there is assurance of appropriate medical care, once it is clear he will be repatriated to Australia to serve any sentence, then we can safely say" judge would not have ruled against Assange's extradition.

James Lewis says it is an "essential part" of extraditions that "assurances" are given and they are trusted

James Lewis: "There is an assertion by my learned friend [Assange attorney] because the way in which the assurances are drafted that he would be subjected to SAMs or there’s a possibility that he would be subjected to SAMs."

James Lewis reads from a sixth declaration from Gordon Kromberg that apparently deals with the "assurances." He quotes Kromberg, who asserts, "No factual basis for believing that [Bureau of Prisons] will not abide by the assurances made in this case."

Reading from Kromberg's sixth declaration, Lewis says Assange would not be in solitary confinement because he can meet at any time with his lawyers.

James Lewis mentions Communications Management Units (CMUs). Both Kromberg and Lewis seem to minimize the extent to which restrictions on communications would be imposed by the Bureau of Prisons on Assange, if designated for CMU.

Gordon Kromberg was a prosecutor in the Espionage Act case against drone whistleblower Daniel Hale, who was transferred to a CMU in early October. He has also been the lead prosecutor making statements in the Assange case.

James Lewis said there are no examples in which the US hasn't abided by "assurances." Except for in the case of Haroon Aswat. Then he minimized what happened with Aswat and brushed it aside contending it won't repeat with Julian Assange.

James Lewis says US government must be allowed to impose SAMs to protect against a breach of national security. If not, that would give Assange a "blank check to do whatever he liked, and those conditions could not be imposed."

James Lewis points to the assertion by Julian Assange's legal team that an assurance that Abu Hamza would not be sent to ADX Florence was breached. Lewis insists that is not true. No one said there would be no housing at ADX ever.

After being questioned by one of the justices, Lewis says it was never the prosecutors' position it was necessary to offer "assurances." They thought it highly unlikely Assange would be subject to SAMs. But they have now dealt with that by way of assurances.

James Lewis argues, "Assurances can be issued at anytime in these proceedings according to the jurisprudence in this court."

To give you a sense of James Lewis' dense legal argument: "If on same factual matrix it would be impossible for there to be breach of Article 3 particularly when there is no ADX or SAMs, it’s very difficult to see there could ever be a breach of section 91." #Assange

James Lewis believes the focus should be on Julian Assange's present physical or mental condition, not the "risk of a medical condition getting worse in the future if certain events do or do not occur." Criteria of risk is not applicable under extradition law.

Lewis argues the harshest sentence against Assange would not exceed the longest sentence issued under Espionage Act, 63 months (Reality Winner's case). Adds average sentence is small number of years.

"District judge didn't even determine what the likely sentence would be"

One of the justices says it is possible he wouldn't even be sentenced at all, if not convicted. Then Lewis presents a rosy but improbable scenario where defense "apply for speedy trial" (?), challenge prosecution on First Amendment grounds, and Assange goes free.

James Lewis discusses the Lauri Love case and says, "This was not a pure suicide case."

The High Court made a "judgment on the combined factors of vulnerability - Asperger's, eczema, and asthma, which would be exacerbated by suicide watch." #Assange

The position of the Crown Prosecution Service—and therefore the US government—is that Assange's medical problems are limited to his mental condition. Because Love's problems were physical and mental, Love should not apply to the Assange case.

Lewis says the district judge wrongly based decision on Assange's "intellect to circumvent" suicide prevention measures - his "single-minded determination." This is "replete with risk that without proper foundation it will impede the UK’s ability to extradite individuals..."

Lewis complains that defendants would be able to use their intellectual ability to commit suicide in prison as a "trump card" if the High Court allowed this to stand. A state could have 100x better prevention measures than England and be denied extradition. #Assange

Lewis states only Professo Michael Kopelman concluded Assange lacked capacity to resist suicidal impulses—out of the five professional psychiatrists that submitted testimony.

Kopelman closely assessed Assange between May and December 2019, unlike the other psychiatrists.

We are on recess for lunch. As the court emptied, we could overhear Edward Fitzgerald QC as he turned to confront James Lewis over what he saw as an improper characterization of the Lauri Love case. (Fitzgerald represented Love.) #Assange

Lots of press and observers tuned into the video feed. More than any prior hearings. I don't remember this many being on during main extradition hearing in September 2020. In fact, Michael Isikoff, who was involved in Yahoo News report on Pompeo and CIA, is following.

Programming note—After court proceedings wrap, at 12 pm ET/5 pm London Time I'll go live with a report on Day 1 of the appeal hearing in the extradition case against WikiLeaks founder Julian Assange.

Watch:

Back from lunch. James Lewis begins by addressing the issue of "assurances" not being offered before the judge ruled against the extradition request. Lewis says assurances are not "fresh evidence" and can be given at any stage. #Assange

James Lewis: Position always was there was no real risk Assange would be held in SAMs or ADX Florence. "Issue of assurances only arisen because of the judge’s conclusions." That precipitated the requirement to give the "assurances."

Daniel Hale's case is mentioned by James Lewis. He says Hale stole information that was classified. Prosecutors applied for sentence of 87-to-108 months, but court only imposed 45-month sentence. (What Lewis means is Assange won't receive "lengthy" sentence.)

We've moved on to Ground 3 of the appeal, which exclusively deals with seeking to discredit Professor Michael Kopelman. #Assange

Lewis says Assange went to extraordinary length to avoid extradition to United States. Went to Ecuador embassy and stayed for 7 years. "Those conditions were absolutely dire." He only "left when he was forced to do so by the Metropolitan Police."

Lewis continues that #Assange was adept at breaching protection by Ecuador. Hosted chat show on RT and assisted "Eric Snowden" in his flight from the United States.

Lewis outlines the ways in which he believes Kopelman misled the court on Assange's relationship with Stella Moris and the fact that he fathered two children.

For those interested, Assange is still following along, though he appears very tired with his head resting on his hand.

This is Judge Baraitser's statement from her decision that the prosecutors dismiss with regard to Kopelman not disclosing Assange's relationship with Stella Moris. Baraitser made it clear she knew about the relationship before reviewing any medical evidence so she wasn't misled.

Lewis' objection to the judge is that she did not weigh facts presented in observations from their preferred doctors in manner that was more favorable to the US government. And the problem with that is the judge is entitled to determine which facts are most important. #Assange

Let's be clear: An appeal hearing is not supposed to be a do-over for the prosecution, where they get to have another go at convincing judges that certain facts should persuade them. It's supposed to be focused on issues involving the law or court procedures.

With that in mind, James Lewis reads from the extradition hearing transcript from September 2020 when Professor Kopelman was cross-examined.

He's responding to this part of the district judge's decision.

US government insisted Assange had, as the judge acknowledged, a "strong incentive to feign or exaggerate his symptoms and that there was suspicion surrounding reports that he read scientific journals including the British Medical Journal (the BMJ)." They persist with this view.

Lewis is going through various cross-examinations of psychiatrists from the extradition hearing in September 2020. His hopping from quote to quote is not easy to follow and hard to represent accurately in this thread.

We're building to a possible outcome where the justices on the High Court agree with the Crown prosecutors that not enough weight was given to other psychiatrists & when considering their observations extradition should've been granted. Which then Assange appeals to Supreme Court

Potentially important exchange with the Chief Justice, who points to how the judge said Kopelman was misleading but it did not mislead her. He says if accepted then the criminal procedure rules would allow experts to mislead the court, which Lewis agrees.

Then one of the High Court justices ask if the prosecution requested the judge give little or no weight to Kopelman's psychiatric evidence. Lewis says we did not seek to exclude, but that it should be given no weight.

Lewis is in the final minutes of the prosecution's appeal argument. Says judge should have weighed crucial factors so signfiicantly differently and that her overall evaluation of evidence was wrong. #Assange

Lewis in his conclusion says the "assurances exclude the factors which the defense case depended upon to demonstrate there would be future deterioration in the mental health of Assange" and as consequence a suicide

Lewis adds now with assurances it cannot be said "it would be oppressive to extradite him." The judge would have decided differently. #Assange

Edward Fitzgerald is now up for Assange's legal team responding to the US appeal. He starts with emphasizing that Judge Baraitser's decision was carefully reasoned and followed a careful structure. She applied the test for assessing the risk of suicide.

Fitzgerald: The prosecution is really saying there should be reasons for reasons. Though the judge gave reasons for why she preferred Kopelman, Lewis says she did not provide enough reasons. #Assange

Fitzgerald: The judge saw and heard Professor Kopelman giving his evidence. Heard it tested. She was best placed to assess his integrity and his impartiality. #Assange

Fitzgerald counters that Nigel Blackwood, a psych favored by prosecutors, actually got it wrong as to why Assange was put into health care unit. He discussed suicidal thoughts with an officer and was moved on May 18, 2019. But Blackwood said had nothing to do with health care.

Arguing prosecutors have not identified single error of law, Fitzgerald says this is "just an attempt to re-litigate the case because the United States was unsuccessful" #Assange

Fitzgerald maintains Parliament intended to protect "mentally disordered people" from oppressive extradition to foreign countries. It's "perfectly reasonable to conclude if likely effect of that extradition is that the person will die, it may well be oppressive." #Assangecase

Fitzgerald defends the part of the judge's decision with "carefully reasoned paragraphs" on the suicidal impulses Assange would not be able to resist due to his mental health condition.

This is the section referenced:

To the idea that the judge did not consider suicide prevention strategies in US prisons, Fitzgerald says, "
I just wonder some time if my learned friend’s reading the same judgment we are."

He points exactly to where the judge considered this issue. #Assange

Fitzgerald concludes saying "assurances have come very late in the day, and there is no reason why they should be admitted in fairness to Assange."

Proceedings are done for today. I will be live at the top of the hour with a report on the first day of the appeal hearing in the Assange extradition case.

Once more, here's the link to watch:

In collaboration with @MElmaazi, here's a report on day one of the appeal hearing in the extradition case against Julian Assange.

Lead prosecutor James Lewis QC bashed the district judge's decision against extraditing Assange

thedissenter.org/prosecutor-att…

@MElmaazi

https://twitter.com/RightsDissent/status/1453457114970693636