Thread by @Consortiumnews

Day 2 of the USA v #Assange Appeal will begin soon and we'll be hearing from the defence. You can read their arguments here:
defend.wikileaks.org/wp-content/upl….

Follow our tweets from the courtroom on this thread.

We are in the courtroom. About to start.

All rise.

Edward Fitzgerald for the defense, who will be dealing with psychiatric issue. Mr #Assange does not wish to attend.

EF lists the points in Baraitser's ruling that deal w/ #Assange's mental health and the effect extradition would have, were he bereft of family support.

Baraitser's Point 356: Prof Kopelman is confident as any psychiatrist of #Assange's pre-disposition, irrespective of SAMs. Next point however is the main drift: #Assange's condition, intellect and determination to circumvent prevention of suicide measures.

EF: Baraitser concludes that given #Assange's condition (Point 362) he would succeed in ending his life.

All incarceration in the US would involve isolation (not only SAMs) and that would be the trigger for suicide in relation to his mental disorder.

EF: Irrespective of the assurances, Baraitser was convinced by #Assange's condition that he was at high risk. She was not looking at eventualities, but his pre-existing condition. The prosecution can't demand more reasons for the judge's reasoning. She listened to the experts.

EF: Dr Deeley was the leading authority on ASD. In his presence, an appropriate test was administered to diagnose #Assange's condition. Baraitser found that the risk of suicide was sufficiently high to render extradition oppressive.

EF: Baraitser said had regard for the public interest. Mr Lewis said there should be regard for the effect of this "so called "biggest leak in American history". @xychelsea got 35 years. Lewis claims #Assange would get 4 years [said yesterday the longest sentence was 63 months].

EF: Regarding Mr Lewis's claim that you can't look further down the line in trying to predict suicide, one can't on that basis place someone in torturous conditions for that individual.

EF: The judge accepted that even the announcement of extradition would be a sufficient trigger for someone with mental health issues to suicide. We are not only looking at the long-term effect of isolation.

EF: In any case, if #Assange was successfully extradited, his condition would deteriorate in isolation and eventually trigger suicide. His condition is serious. There is a medical history, contrary to what prosecution claimed.

EF: The law states that suicide must not be a voluntary act, but triggered by a pre-existing condition.

EF: The court doesn't have to predict someone WILL commit suicide. A substantial risk is sufficient, the key test being whether they would be likely to succeed. If the court is aware of a condition that would be conducive to this act, it is oppressive to extradite.

It is still oppressive to extradite if standard prevention of suicide measures are in place. There will be cases where the mental disorder is such that success is highly likely. I say this is a humanitarian approach taken by parliament.

Ef: The prosecution witnesses (such as Gordon Kromberg) simply submit statements. They are not subjected to cross-examination. They claim measures are in place, but @xychelsea & now another prisoner has attempted suicide in the very same prison that @Assange would be sent to.

EF: There are places where we won't prosecute for extradition. In other cases parliament has given the courts power of discretion not to send vulnerable people. Of course we can make no demands when they are gone, but we can deem someone is at high risk, or conditions conducive.

EF: Given what has recently been revealed about kidnap or murder plots against #Assange, the risk is even higher.

EF: The court says the decision must be driven by a mental disorder & be the result of "irresistible impulse". Prof Fazel said psychiatrists don't speak that kind of language. They only speak of risk. Every medical expert found #Assange was depressed.

EF: It is important to follow the findings of the district judge when they follow the advice of expert witnesses and the results of their tests.

EF: In the case of Lauri Love, we clearly looked into the future to anticipate what would be likely to happen, such as the onset of severe depression and consequent suicide.

EF: In the case of Love, there was scepticism as to the effectiveness of PoV measures. Isolation and suicide watch would have likely exacerbated his condition.

EF: With a combination of ASD & depression, the risk is very high. When my learned friend said no one extradited from the UK has suicided, that's to our credit & nothing to do w/ the US, because we do not extradite vulnerable people such as Laurie Love.

We submit that #Assange will be detained in isolation, w/ a further risk of isolation in years to come. But Judge also focused on the immediate risk of suicide, based on the medical evidence of Prof Kopelman & Dr Deeley, should extradition be ordered.

EF: Mr #Assange has a combination of two mental disorders, both of which would be conducive to suicide if subjected to harsh conditions.

EF: We don't have to find fault with the requesting state where mental health conditions are concerned.

EF: There were reports in the press that there was a finding that Kopelman had misled the court. This is simply untrue. The judge understood the ethical issues the expert was facing when concerned about the privacy and safety of individuals.

EF: Baraitser accepted Kopelman's full explanation for his actions in delaying the disclosure of the identity of @StellaMoris1 as #Assange's partner and their children.

EF: Kopelman sought legal advice and was advised to wait. By April 2020, he has told Dr Blackwood about the family, so the prosecution were well aware of #Assange's family. Kopelman said he was concerned about the family's safety.

EF: At the time Kopelman was concerned about revealing #Assange's family, his lawyer Gareth Peirce was overwhelmed w/ the submission of multiple statements regarding UC Global surveillance. It seemed appropriate to protect the family in the face of this frightening situation.

EF: Frightening included taking samples of the baby's diaper for DNA testing, plots to kidnap or poison #Assange. Evidence of this was revealed in a Spanish. Kopelman ITVd @StellaMoris1 w/ al this in the background. Protected witnesses from this case testified in this case.

EF: Lawyer Gareth Pierce advised Kopelman to delay divulging information about #Assange's partner & children and this was never contested by the lower court. There was a credible threat to #Assange's life and the safety of his children. Moris moved to another address.

EF: None of the medical experts disputed the with-holding of information about #Assange's family. They knew about it and recognised the risk. Moris pleaded for anonymity at the bail application for the same reason but the judge couldn't grant that.

EF: There is no tactical advantage to hiding information about #Assange's. The judge understood that, given the full context of the extraordinary situation.

EF: Looking at the Court Rules for expert witnesses, the first rule is to be objective and assist the court. Then 19.4 states that nothing must be withheld. The judge found (Point 329) that the over-riding duty to the court was fulfilled, and (331) that the expert was objective.

EF: Baraitser recognised breach of 19.4, but there must be some rule about how to view an exception, if it's to protect a vulnerable person in a menacing situation. The judge recognised the danger. She mentioned the plan to kidnap or poison #Assange & risk to the family.

EF: It was found Kopelman by Prof (inaudible) acted professionally and with caution. Likewise the judge found his actions understandable. Looking at Kennedy (p 147), the court may exclude evidence where there is omission, if it indicates partiality.

EF: Kopelman's aim was not to give favour to #Assange. There was none. He felt the ethical obligation to protect vulnerable people. There has been a miserable attempt to smear the reputation of an eminent neuropsychiatrist (Prof Kopelman).

Burnett: The article you are talking about is published.
EF: Yes. He said wanted to work within the system to help detainees at Guantanamo. Now what on earth is wrong with that?

EF Where Baraitser says she prefers evidence from one expert, she explains very fully why, eg. why Dr Blackwood's evidence is less compelling. The prosecution tried to call Dr Crosby "only a GP". That's rubbish. She is aUS expert in PTSD, saw #Assange 5 times, produced reports.

EF: Prof Fazel said predicting suicide was an imprecise science but that is something courts have to grapple with. Likewise with predicting violence. He accepted that people were 9 times more likely to suicide in isolation.

EF: At the end of the end of the day, you can't re-litigate the opinion of medical experts to re-determine preference. Baraitser accepted Deeley's opinion that there was an increased risk of suicide linked to his ASD.

EF: Deeley speaks of #Assange's excessive rumination and sense of horror about his future and this is typical of people w/ ASD. I respectfully submit that both Prof Kopelman & Dr Deeley got it right.

EF: We have responded fully to the prosecution's criticisms. Prof Fazel agreed that #Assange was probably severely depressed during the period from May to December 2019. Dr Black wood only looked at prosecution arguments.

EF: Prof Fazel agreed that #Assange exhibited autistic traits & admitted he wasn't an expert in ASd; that Dr Deeley was the expert an did the appropriate tests.

EF: We set a list of criticisms one could make of Dr Blackwood. He said for example that there was no solitary confinement at ADX because Mr Kromberg said so...

Adjourn for lunch

Court resumes

EF: Reading from Gareth Peirce's letter mentioning the danger @StellaMoris1 and family was in. Kopelman was aware of the reality of the fears.

EF: None of the psychiatrists suggest there is any malingering on the part of #Assange; the judge applied the test & was satisfied he met the threshold and she found that Prof Kopelman was impartial. Details Assange's medical history.

Holroyde speaking now. Summarising what Fitzgerald has said and what the US has proposed. "They say 22 hours a day is not oppressive". Judge says it is not for the purpose of extradition. Is this an impermissible attempt to create-cast the case?

Mark Summers for the defence. The assertion is that the US took one approach & then changed it's strategy. The requesting state has had every opportunity to provide assurances but decided to run its case another way.

MS: The duty is to offer the requesting state a fair opportunity to adduce assurances. Mr Lewis says the US didn't have the opportunity before now. Not so. In relation to pre-trial SAMs, the district judge heard evidence from Thomas Durkin. He said it was likely in the case of JA

MS: How did the US respond? They did not deny the risk. Mr Kromberg argues that these conditions are not objectionable. That precipitated days of discussion of whether they really were OK. @LindsayLewisEsq made us aware of the case of Abu Hamsa.

MS: No effort was made to reassure this court about the DoJ's intentions re #Assange. There were no assurances. Mr Kromberg doubles down. More about how SAMs are OK. Maureen Baird, a SAMs administrator, disagreed point by point w/ what he was saying. That's what Baraitser heard.

MS: Mr Kromberg refused to submit himself to cross-examination. There were only statements, w/ which a number of witnesses disagreed. Reading Baird transcript. She makes the point that the absence of assurances is concerning.

MS: The notion that the US had no opportunity to take SAMs off the table is nonsense, as w/ ADX. The debate was around how fine or dreadful the measures were. It was said there was crochet & bingo, Mr #Assange could "recreate individually". Baird, Sickler & the judge disagreed.

MS: The US had plenty of opportunity to take SAMs off the table, but are they really off the table? The US has left open the possibility for either or both SAMs & ADX. Maureen Baird informs us that "any word or behaviour" can trigger this. We learn that this is certified by CIA.

MS: The involvement of the CIA in this process (recommending SAMs for #Assange) is important in this particular case. How best to convey the CIA's attitude towards Mr Assange. I cite Miss Prince's declaration. Ask the court to read the account of an investigation by Yahoo News.

MS: I invite My Lords to read what the CIA is prepared to do, as a result of the publication of Vault 7 by @Wikileaks. Former CIA director @mikepompeo designates the organisation as a "hostile non-state intelligence agency" (which has a legal definition).

MS: The investigation into CIA by @YahooNews Takes us to the Spanish case, and the plot to kidnap or poison Mr #Assange. How likely is it then that the CIA would certify SAMs? It will likely happen no matter what doctors recommend. SAMs are still on the table.

MS: If the district judge is right that SAMs would be oppressive, the assurances do not remove that. So what if SAMs & ASX were removed? That changes nothing. #Assange will go to pre-detention solitary at ADC Alexandria. 22 hours a day. Exercise is in another cell.

MS: Kromberg says SAMs are OK - unless you are deemed a National Security risk. In that case it is perpetual solitary confinement. Administrative Segregation / protective custody amount to the same thing - for years, which is the time it takes to get to trial.

MS: On top of years of solitary pre-trial, SAMs is still on the table after that. The doctors are not just concerned about same. Ad Seg will cause the same oppression likely resulting in loss of life. In both cases Mr #Assange will see no other human being for years.

MS: Baraitser recognised the likelihood & risk involved w/ SAMs and Ad Seg. All the US evidence indicates that Ad Seg is in prospect, whether there will be SAMs or not. If no SAMs, the judge would not alter her decision. She saw they both involved the same small room isolation.

MS: There are a few options of where #Assange could be taken to. One in 5 prisoners are in small room isolation, designed to separate individuals completely from the outside world. Had ADX been off the table, the judge would have dealt w/ special housing units. It wasn't.

MS: Mr #Assange is destined for extreme isolation, whatever label they want to put on it. The district judge had evidence from witnesses experienced in medical care at ADC. Claims there were no suicides at ADC are out of date. Christopher Lamb has recently succeeded.

MS: The district judge was concerned about the level of medical care at ADC (pre-trial detention centre).

MS: Ms @LindsayLewisEsq tells us the pre-trial detention period at ADC could take years. Furthermore we do not know if Australia will agree to imprison #Assange. There is no dual criminality.

Judge Burnett: Was @xychelsea charged w/ the same offence as Mr #Assange? The charge in both cases carry a life sentence.

MS: There doesn't need to be any assurances for Mr #Assange to spend the rest of his life in isolation. All of the kinds of imprisonment - Communications Management Unit, Ad Seg, SAMs - expose him to the same fate.

MS: Submits statement from Spanish lawyer. Spain agreed to extradite on condition the prisoner would be transferred back to to Spain to serve his sentence. Once there the US refused, and claimed it had not promised anything. Spain seeks to take action to retrieve its citizen

MS: The Spanish court says there has been a clear breach, but the US claimed it was only a prosecutorial assurance. Not a guarantee. The UK was also assured that Abu Hamsa would not get SAMs (evidence of @LindsayLewisEsq). In both cases the wording of the assurances deceived.

MK Mr Hamsa, a severely handicapped man was put in ADX. When he complained, the US said it was only "highly unlikely", not impossible. This court & the European Court believed this could not happen. In the case of #Assange, it's obvious the caveat is already there.

MS: In this case where this court finds the assurances acceptable, there must be an inquiry into their trustworthiness. Nothing about this case is normal. The requesting state has contemplated, if not plotted to kidnap and poison Mr #Assange.

James Lewis QC returns for the prosecution.

JL: There were no assurances w/ Hamsa & it is proper to deal w/ assurances at any stage. This is not a "sea change".

JL refers to defence witness Joel Sickler, who agreed the imposition SAMs was "speculative".

JL: We could start again w/ Mr #Assange, w/ new assurances. Assurances are given at the highest level, to facilitate extradition. They are reactive to concerns.

JL: MS said AD Seg was the same as SAMs. That only applies to pre-trial detention & Kromberg says there are fundamental differences between the two. The reason SAMs do not violate Article 3 is because it is not isolation, because you can be visited by a lawyer [through a door].

JL saying Ad Seg would not be solitary for Mr #Assange. The fact he is not getting SAMs should reduce his suicidal "ideology".

JL: The prosecution did not know about #Assange's family until 2 days before the hearing.

JL: The evidence was that #Assange was "moderately" depressed.

JL: Prof Fazel disagreed w/ the approach taken by Prof Kopelman. For him, the daily prison records were the most relevant.

Burnett: You have given us much to think about and we will take time to consider this. several members of the press wish to see Mr Kromberg's submissions which has been so much referred to today.

JL: OK, but we may want to redact some of that

Appeal hearing ends.

Correction: the voice we thought to be that of Lord Justice Holroyde (who was wearing a mask) was defense lawyer Mark Summers, who was off camera.