Thread by @MaryKostakidis

Day 2 of the US High Court #Assange Extradition Appeal in London.
Today the Defence will counter the arguments presented yesterday, & raise new reports from former US officials that the CIA considered kidnapping or murdering Assange. I’ll be covering proceedings on this thread.

They will also argue that if the Court decides to admit the US assurances & view them as comprehensive, then consideration will need to be given to which tribunal ought to assess their trustworthiness & will propose Baraitser as she has heard days of detailed evidence.

We heard yesterday that JA chose not to attend Court because of increased medication levels but subsequently @StellaMoris1 said that was not the case, that it was not his choice, that he was not permitted to attend, with no further information.

Yesterday we were admitted earlier.
I’m still waiting to be admitted, as are others I know.
There were over 70 of us on the link yesterday, including Gabriel Shipton.

Very unusual to leave it so late to admit us. They usually close off entry by this time. Wondering whether it will start later for some reason. Or that the case has been dropped. [To Myself] Do not indulge in fantasy.

We are in

Fitzgerald is there, & Gareth Peirce. The Associate today is .. controlling noise levels in the Court.

Judges enter

The Judge says JA doesn’t have to be here. Fitzgerald said Belmarsh misunderstood & took him the the videolink room. Again, reinforcing it is JA’s decision. What is going on?

Fitzgerald starts to unpack the reasoning behind DJ Baraitser’s decision, that JA’s mental condition would result is a serious suicide risk were he to be extradited.
That even if he were not held under SAMs, the conditions would be very similar.

If you’ve read the Skeleton Argument which was released yesterday, Fitzgerald will make frequent reference to the Love case and many others, including a couple of very recent cases that were ignored by the Prosecution.

Fitzgerald says the judge was entitled to say let’s look at the worse possible outcome, and that irrespective of the assurances, that she is likely to have made the same decision.

Referring to the DJ’s preference for Kopelman’s evidence & Deeley’s who was the only ASD expert (me: an eminent one at that. His testimony was a tour de force).

He says the DJ made a scrupulous assessment strictly in accordance with the Turner principles, stating she has regard for public interest (not to let someone off lightly).

He is now arguing against the assertion that you can’t look into the future for potential serious deterioration. He is making an analogy with Love with which the judge disagrees. He says it was a ‘completely different case’.

Arguing that irrespective of SAMS, at ADC he would be held in isolation; appropriate measures cannot be taken given the irresistible impulse.

Discussing how deeply illogical it is to differentiate between irresistible urge V voluntary act because you can’t approach these things in such a ‘rational’ manner & giving examples of how the linkages are complex.

If the persons state results in a high risk irrespective of the measures taken by the State, then it remains oppressive. The judge asks are you saying even if the US guarantees measures would be in place you would still find it oppressive? Fitzgerald isn’t being very lucid.

Fitzgerald making the point that the US simply provides witness statements with No Cross-examination of the witnesses as opposed to the Defence witnesses.

Fitzgerald saying there has been a suicide in the jail Manning was in.
The judge now asking about the public interest in prosecution and consideration of what would happen if the prosecution were happening in the UK.

Fitzgerald pointing out Parliament has built in protection for people being extradited to uncertain or harsh conditions - the facility Love was in has been closed down now because it was so appalling. We have no control when we extradite to the US & have to consider his concerns

..and ours given the Yahoo revelations.

The Prosecutor resigned after the Superseding Indictment. This is an extraordinary case argues Fitzgerald.
The Test should be that whatever steps are taken, if a person has a mental disorder that would drive them to suicide if extradited it should be denied.

On the ‘metaphysics of choice’… he says psychiatrists talk about risk, they don’t look at it as a dichotomy - those who make a rational choice to take their life and those for whom it Is involuntary.

Looking at Love, with respect to eventualities that may occur further down the line, the argument was accepted, that you can’t argue that suicide will be avoided down the track when the prisoner is taken off suicide watch.

Love would have needed to be isolated due to the risk of bullying , so irrespective of assistance & measures, the result - looked at ‘over a period of years’ in Love’s case - would be great risk of suicide. It is the UK wishing to protect citizens from oppressive extradition.

Judge: there are activities going on in the gallery with mobile phones that are disturbing, so turn them off.

Fitzgerald: Notwithstanding appropriate arrangements, the risk to the appellant is sufficiently great to result in oppression. This is not a case of a clever person with no disorder - the effect of a combination of two disorders (depression and Autism Spectrum).

Now addressing the fact that JA will have no support in the US, no family.
There is no requirement for egregious fault on the part of the extraditing state under s91. It is the effect of extradition on the individual.

The US has stated publicly & repeated & then published, that the Court had been misled (by Kopelman). That is false asserts Fitzgerald.

Kopelman was not doing what JA or his partner asked, he did it out of his concern for her safety and that of the children. Fitzgerald will remind the Court that DJ Baraitser did not hear the evidence until Moris outed herself following the Bail application.

Fitzgerald accepts 3 children were referred to in Kopelman’s Ist report. He should have said there is something I can’t disclose in my report.

But JA disclosed it to the Prosecution’s psychiatrist. [the more you hear and read about this, the more you get a sense of things unfolding in a somewhat chaotic way because of the unique and highly stressful situation - the luxury of retrospective logic may need to be tempered]

Fitzgerald describing the situation in the Ecuadorian Embassy, the surveillance and intrusion into legally privileged conferences & copying of content of lawyers devices, former UC Global witnesses, weapons that were found.. the DJ had to take all this into account in deciding

.. Kopelman acted in a humane way.

Judge asks about the intent to protect the children.Fitzgerald arguing there was no tactical advantage in concealing her identity, it was just until JA could get advice about what was the best thing to do. All was revealed, and before the DJ heard Kopelman’s evidence.

So the DJ found what happened was understandable.

Fitzgerald quoting from Experts’ Duty to the Court - must be unbiased. DJ accepted Kopelman was.

Role if expert witness is to assist the Court to achieve its objective, and DJ found his opinion to be impartial and dispassionate.

DJ found it was an understandable human response, on Kopelman’s part. The human predicament must mitigate how you view that argues Fitzgerald. DJ doesn’t say the rule is not important. Her judgement was humane.

This is all repetitive but Fitzgerald is still arguing Kopelman’s evidence should certainly not be deemed inadmissible. Discussing an article in the British Psychiatric Bulletin where Kopelman says he wants to work in the pursuit of justice should have no significance to..

.. his independence and integrity. [the Prosecution argued he has a vested interest & Dj should have favoured the Prosecution expert witnesses who were impartial]

DJ explains why she preferred Kopelman and Deeley at every step of the way.

DJ found Blackwood’s evidence less thorough.

[There was an extraordinary moment in the Extradition hearing where Blackwood painted himself into a corner where to keep asserting his view would amount to nonsense. There was a long pause. He gasped, and chose nonsense. It was astonishing to watch & we could only see the back..

..of his head.

[so listening to what Blackwood had to say, and his inability ultimately to modify his statement in response to a question & was prepared to appear false rather than resile in any way, no wonder the DJ didn’t find him credible]

Fitzgerald talking about Dr Deeley, the ASD expert, who said he would be driven to take his life if extradited. Doesn’t describe it as an ‘impulse’ to suicide but a catastrophic sense that you can’t do otherwise.

Fitzgerald referring to the Prosecution dismissing Nils Melzer who was quoted by Kopelman, saying Melzer visited with a psychiatrist.

Fitzgerald says It’s not unusual for ASD to be discovered late in life.

Judge wants to break but Fitzgerald was making an important point, that Blackwood relied on Kromberg’s assertions.
Lunch break.

Court resumes

Fitzgerald referring to Gareth Peirce’s statement regarding Stella’s concerns for her safety, the foundation of which was testified by the former UC Global employees.

Now making the point than none of the psychiatrists suggested JA was malingering [but I think one made allusion to his reading of the British Medical journal and that is exactly what I would have thought he was suggesting].

Fitzgerald is finished!

Mark Summers now talking about the trustworthiness of the assurances & the admissibility of the assurances. Judge refers to the difficulty of having “conditional” assurances.

Summers says it should have happened much earlier anyway. They have run a case one way & then chosen to change after two years.

Sum:res is further from the one mic on the Defence bench so a bit challenging to catch all he says due to echo effect. Tells the Judge there is nothing in the law that requires the judge to allow the Prosecution to change course in the case at this late stage.

Have they not already had a ‘fair opportunity’ to provide assurances, which is what the law requires, asks Summers.

Summers referring to the evidence about SAMS & the US response was this. Kromberg said (Fitzgerald moves the mic towards Summers but it’s not much better) SAMS are possible & are authorised on recommendation from the CIA

Lewis can’t hear clearly either he says.

He’ll want to hear this very carefully as if the argument against accepting the assurances is made well this could be highly problematic.

Summers referring to Defence evidence that countered so many of Kromberg’s assertions, by numerous witnesses (Sickler, Baird etc) Kromberg declined to be cross examined.
If SAMS is off the table, they would remove it completely said Baird - so she was referring to just this:

..assurances, that were not offered.

Kromberg said being sent to ADX was possible [not sounding good for the Prosecution - Summers is building the case that they not only didn’t take the opportunity to offer assurances, they in fact did the opposite - reiterated all was on the table, as Baird pointed out.

They tried to keep it all on the table says Summers. [And he is absolutely right. Can’t see how the assurances can now be accepted so look forward to this judgement & the reasoning]

Have they even now says Summers, have they taken SAMS and ADX off the table? No.

Summers quotes Eric Lewis commenting on the language of the assurance. The Judge is dismissive saying it is a matter that can be addressed & previous cases have no bearing on assurances made in this case.

Summers referring to the process - the total discretion of the AG in devising on SAMS as well as involvement of the CIA in the exercise in this case.

Summers conveying the evidence relating to the CIA which is not before the Court, the relationship between JA & the CIA. Refers to the Yahoo article, the Congressional Investigation, Pompeo’s response. Judge says he is not at all surprised Intel would have an intense interest.

Summers asks judge to bear with him. Telling judge about the Vault 7 publication which led Pompeo to declare WikiLeaks a non state hostile intelligence agency.

Summers refers to reports of discussions about killing Assange, rendering him back from the UK, along with the Spanish evidence of poisoning JA. How likely is that Agency to certify that SAMS should apply because they consider he could direct some future publication somehow ..

.. or there is a risk he may disclose something to someone, that this would necessitate SAMS. It’s unrealistic to assume the AG would not certify SAMS. If Kromberg & the CIA direct it, it will happen regardless of what the doctors say.

Summers refers to Prosecution evidence that SAMS ‘are ok’.
If DJ was right that ADX was oppressive, this assurance takes us nowhere because SAMS & ADX still can happen.

Regardless of SAMs & ADX - if there were to be an absolute assurance [which there is not], he’d be held in ADC in solitary confinement. Summers refers to the evidence establishing this in the Extradition trial by various witnesses.

Kromberg’s description of the conditions are “impossible, implausible, never going to happen” said numerous witnesses about various services available to the prisoners, and their ability to communicate thru doors and windows.

Summers listing the prisoners who have been kept in Solitary for years. Summers says I’d JA is extradited he will be in ADC for years. Why Years? asks the Judge. Because that’s how long the legal process will take says Summers. In that time he will be held in solitary.

Summers making the point that there was substantial evidence of AdSeg conditions - Segregation which is not much different to SAMS, and Baird testified both can be applied.

The notion that you can skip over the paragraphs in this Judgement on AdSeg is not possible, given the bleak conditions. Similarly if ADX was off the table JA would still be headed to one of the 3 Supermax prisons. He makes the point that the only alternatives - prison &

..and conditions - would have the same effect

Summers is detailing the Special Housing Units within prisons designed to isolate prisoners - the evidence was all one way. DJ knew there was a real risk in any of the alternatives that would be on offer to JA.

Had the assurances been on the table in the trial, the judge would have been forced to consider the Special Housing Units. The result would be extreme isolation no matter the facility. They sometimes build a unit within a prison for an individual. [Summers is on fire]

The DJ heard a lot of medical evidence regarding ADX and ADC. The ADC assessment of mental health care is deplorable, referring to a recent death there. At ADX, evidence on mental health care provides no assurance whatsoever that JA would receive the care he would need.

Summers going thru the various scenarios of the outcome at different stages, which will all take years, offer no certainty: that he would receive a short sentence, that he would then not face further charges as Kromberg has triggered in other cases, that Aus may or may not ..

.. agree to have him.

Judge is asking about Manning - she got a very long sentence.. Was she convicted of the same thing? He is trying to establish whether Ja would by analogy receive a very long sentence. Summers taking it on notice & will get back to the judge. The sentencing guidelines recommend..

.. a life sentence. Every experienced lawyer that has looked at this says it would result in a life sentence. There is no assurance provided regarding a maximum sentence & witnesses thought that was telling.

Summers summing up. Despite assurances JA will spend the rest of his life in extreme isolation. It is a qualified assurance.

Examples: Mendoza. Spanish HC ordered extradition on condition he be immediately transferred back to Spain but an argument was mounted that the Prosecutor promised but it’s not the Prosecutor’s decision. The DoJ refused it because they said They never granted it,

The Spanish Court then regarded this as a clear breach of the undertaking.

Also in the case of 2 UK extraditions. Judge says here, the US is giving an assurance. Summers says the US simply means the Prosecutor. What about the Diplomatic Note asks the Judge. The wording says Summers is an unresolved ambiguity.

When it comes to the crunch, the US will stick to the letter says Summers, not the expectation of this Court. That’s what tripped up the Spanish Court and UK extraditions in the past. It will be worded very carefully so they can wiggle out of it.

Summers giving another example where the Extradition Court was told ADX was impossible but that is exactly what happened.

Now referring to Hamza whose lawyer was the final Defence witness in JA’s extradition trial where again assurances to the UK were reneged on.

Lewis now responding: Manning isn’t relevant as it was a Military Tribunal; Summers failed to mention Mendoza was ultimately returned; in Hamza there was a prosecutor’s letter but there were no diplomatic assurances; assurances can be dealt with at any stage of proceedings.

Summers final statement referred to next steps should this Court accept the assurances & view them as comprehensive: a decision would need to be made about who would be best to hear an appeal that would assess the trustworthiness of the assurances.

Lewis dismissing concerns the assurances are problematic. We could start t(e extradition process all over again, with the assurances.

A diplomatic assurance is a serious matter says Lewis, to facilitate an extradition. They are reactive, in response to the findings of the Dj. They take into account the national obligation to give effect to extradition.

Lewis arguing that segregation will only happen pre trial. He says AdSeg has a raft of privileges- unlimited. Lawyer meetings, visits etc so it’s not solitary confinement. There are 2 in a cell. AdSeg has none of the characteristics of solitary. The DJ was only dealing with ..

… SAMS and ADX.

Regarding Special Housing - Kromberg makes clear that is not Solitary says Lewis.
Lewis says the Defence has shifted ground & arguing it’s the very fact of extradition that will trigger suicide. It was SAMS and ADX but now that is not the case they have shifted ground.

The US has never reneged on a Diplomatic assurance says Lewis.

Lewis is now onto Turner and the trump card he referred to yesterday ie on the basis the Defence is arguing, no one would be extradited.

Lewis says on 24 Feb when the Extradition hearing stated, Moris’ identity was withheld from the Court. He says JA made a conscious decision to announce her identity in the way that they did.

The judge is giving him a a few extra minutes because he lost a few.
Lewis quoting the medical evidence on depression At That Time, and that is what the decision of DJ should have been based - all the evidence was that it was Moderate.

Judge says Press have asked for the Kromberg submissions. Lewis checking. Wants a redaction on a ‘small point’

That’s it! They are up and gone.

No indication I could hear of when we can expect the Judgement.
Thank you for all the feedback.
What happens next.