US/UK : Julian Assange’s extradition hearing marred by barriers to open justice

“We are alarmed by what we have witnessed in the US extradition case against Julian Assange. We firmly believe Assange has been targeted for his contributions to journalism, and the case against him is clearly a political application of the Espionage Act - which should present a bar to extradition. We also have serious humanitarian concerns, which make Assange’s extradition a possible matter of life or death. Finally, we have concerns about extensive barriers to open justice, which made it nearly impossible for us to do our jobs as NGO observers and monitor proceedings. We call again for the charges against Assange to be dropped, and for him to be immediately released - and certainly not extradited to the US,” said RSF’s Director of International Campaigns, Rebecca Vincent.

Barriers to open justice

Despite severe restrictions imposed on observers by the court, RSF was the only NGO to monitor the evidentiary portion of the US extradition proceedings against Wikileaks publisher Julian Assange, from 7 September to 1 October at the Central Criminal Court (the Old Bailey) in London. With interventions from diplomatic missions and political observers, and support from grassroots activists who helped hold places in the queue from the early hours each morning, RSF representatives were able to access the very few seats made available in the public gallery of the overflow courtroom for most sittings of the 18 days of proceedings.

RSF has been in correspondence with UK government officials as well as the court about access to proceedings against Assange since the start of the year. This was first in relation to the first week of proceedings at Woolwich Crown Court in February, in which legal arguments were heard, then with regard to remote access to administrative hearings that took place between March and August, and finally seeking physical and remote access to the evidentiary portion of the extradition hearing in September. At each stage, the court has refused to recognise the role of NGO observers as any different to the public or make specific provisions to allow for professional monitoring of proceedings.

RSF was able to monitor all sittings in proceedings at Woolwich Crown Court from 24 to 27 February only by queuing outside the court for hours each morning, in winter weather, from as early as 5:30 am, to gain access to the 14 spaces made available to members of the public in the public gallery. RSF also attempted to remotely monitor each subsequent administrative hearing via a telephone conference system that was not fit for purpose. When it worked, the quality of the audio connection was insufficient to properly follow proceedings. On three occasions (4 May, 27 July, and 14 August), the court failed to connect the line at all, leaving journalists and observers on hold.

In a letter to RSF dated 4 September, Secretary of State for Justice and Lord Chancellor Robert Buckland stated: “I’m sorry to learn of the issues that NGOs encountered whilst trying to access hearings at Woolwich Crown Court and Westminster Magistrates’ Court,” as well as “I do accept, and apologise that errors were made by Westminster Magistrates’ Court on three occasions where the conference telephone line was not connected to allow accredited media access to proceedings.” Buckland noted that a video platform would be used to allow accredited members of the media access to the hearing virtually, and that the public gallery would be open for members of the public and observers, on a first come, first serve basis.

On 1 September, RSF had been notified by a court official that “the Judge has now confirmed that observers, trial monitors and other interested parties can attend the hearing virtually via the Cloud Video Platform (CVP).” RSF was later told that only one representative per organisation could be registered, after which registration for Director of International Campaigns Rebecca Vincent was confirmed. 

However, at the start of proceedings on 7 September, RSF received a further communication from the court, stating: “The judge has regretfully decided not to grant requests for members of the public to attend the Julian Assange hearing via CVP...she is concerned about her ability to maintain the integrity of the court if members of the public are able to attend the hearing remotely.” On 8 September, Vincent nonetheless attempted to access the CVP via the link that had been provided, and was admitted to the waiting room before being removed and unable to log in again. Amnesty International and other NGOs also reported having their access revoked, along with a number of political observers.

This meant that the only way for NGO observers to monitor proceedings was to gain access to one of the very few spots in the public gallery of the overflow courtroom, next to the courtroom where proceedings were taking place. RSF observers could only view a small television screen from across a large room, on which it was often not possible to see who was speaking or even whether the judge was sitting. It was not possible to clearly see Assange in the glass dock he was held in at the back of the courtroom, or assess his well being, whether he could adequately follow proceedings, or if he could communicate easily with his legal representation - all of which had been issues in the February proceedings.

Due to Covid distancing measures, the court made five spaces available to members of the public, in a gallery with a total of 36 seats. Communications from the court repeatedly stated that these would be allocated on a first come, first serve basis - however this was not respected in practice. For nearly three weeks of proceedings, three seats were held back for unspecified “VIPs” for the first hour and a half each morning, and the first half an hour each afternoon, meaning that often only two members of the public (including NGO observers) were present in the courtroom. After RSF learned that the VIPs were in fact diplomats who were unaware these seats were being held for them, diplomatic intervention with the court finally resulted in all five seats being made fully available to the public from 24 September.

Technical problems also plagued proceedings, particularly during the first week. Hours of scheduled witness testimony were lost due to the court’s inability to connect witnesses remotely via video. When the system was working correctly, audio problems such as a lag in the connection or reverberation sometimes still made proceedings difficult to follow. At one point the audio feed to the overflow courtroom cut for around 10 minutes, meaning the press and observers missed an important argument over whether evidence would be accepted from Khaled El-Masri, a witness for the defence who was found by the European Court of Human Rights to have been mistakenly abducted by the Macedonian police and subjected to torture at the hands of the US authorities.

Expert testimony 

A total of 47 witnesses gave evidence to the court (44 for the defence and three for the prosecution); 22 of these testified in person, and the others had their statements read into the record. Evidence focused on a wide range of aspects of the case, including the motivation in the case against Assange, the circumstances of the publication of leaked documents, technical aspects of how the documents were accessed, what sentencing Assange would likely face in the US, surveillance measures targeting Assange and his visitors at the Ecuadorian Embassy in London, his state of mental and physical health, and what detention conditions he would be subjected to in the US.

Crucially, the prosecution - for the US government - failed to produce any evidence of actual physical harm caused to anyone as the result of Wikileaks’ publication of leaked documents, severely undermining their claim that Assange knowingly put sources at risk. Testimony from Khaled El-Masri argued that to the contrary, the information published by Wikileaks exposed the atrocities to which he was subjected and has served as important evidence in his pursuit of justice.

Pentagon Papers whistleblower Daniel Ellsberg gave powerful testimony about the political nature of the case against Assange, whom he emphasised would not get a fair trial. He stated that he had not received a fair trial, and no one convicted under the Espionage Act could as it lacks a public interest defence. He rejected attempts to portray the Pentagon Papers as “good” and Wikileaks as “bad,” drew similarities between the two cases, and expressed solidarity with Assange. Noam Chomsky’s statement, read into the record, similarly emphasised the political motivations in the case against Assange - a sentiment echoed by several other witnesses.

Journalist John Goetz testified that Wikileaks had republished the unredacted diplomatic cables, which had been published in the first instance by website Cryptome and a number of media outlets. None of these outlets have faced adverse legal consequences for publishing the documents - only Wikileaks. A statement read into the record by Cryptome founder John Young confirmed that the unredacted files remain on the website to this day, and that Cryptome has never been approached by US law enforcement suggesting their publication was illegal.

Among the most alarming evidence was from several medical experts who testified about Assange’s state of mental and physical health, making clear his vulnerability and strengthening the case for his humanitarian release. Professor Michael Kopelman and other experts gave evidence on Assange’s severe depression, frequent suicidal thoughts, auditory hallucinations, PTSD, anxiety, and sleeping disorder. They emphasised that if extradited to the US, Assange was very likely to attempt suicide. Dr Nigel Blackwood, for the prosecution, did not dispute these conditions, but attempted to downplay their severity and argued that he believed Assange could control his suicidal impulses in US detention.

Dr Sondra Crosby echoed serious concern for Assange’s mental health, and agreed with the medical findings of UN Special Rapporteur on Torture Nils Melzer’s report, emphasising the psychological trauma Assange had experienced. She also expressed serious concern about Assange’s physical health, particularly noting that his osteoporosis left him at high risk of suffering fractures if extradited to the US, also increasing his risk of mortality.

A number of experts spoke of Assange’s autistic traits, and the prosecution attempted to argue that Assange’s ability to speak at events or give media interviews was inconsistent with his Asperger’s diagnosis - a notion countered by several witnesses.

Former US bureau of prisons employee Maureen Baird painted a chilling picture of the inhumane conditions Assange could face if subjected to Special Administrative Measures in detention in the US, including extremely limited human contact, possible solitary confinement for up to 23 hours a day, recreation only in another cell, and phone calls to his family only once a month. Defence attorney Yancey Ellis testified on specific conditions in the Alexandria Detention Center, where Assange is likely to be detained if extradited - the same facility in which Chelsea Manning attempted suicide.

Next steps

At the end of the evidentiary portion of proceedings, the judge granted the defence four weeks to submit a written closing argument, after which the prosecution will have two further weeks to respond. The extradition decision is set to be given in a hearing at the Old Bailey at 10 am on 4 January 2021. Assange is next due to appear before the Westminster Magistrates’ Court for a callover hearing on 29 October. 

RSF will continue to monitor proceedings in the case against Assange and will ask the court to reconsider its position on access for professional NGO observers, as the court’s failure to recognise and accommodate this role presents serious concerns for open justice. 

RSF’s #FreeAssange petition remains open, following a malicious spambot attack intended to undermine the campaign. RSF will attempt again to deliver the petition to the UK authorities before the 4 January hearing, following 10 Downing Street’s refusal to accept the first 80,000 signatures on 7 September. In the meantime, RSF continues to campaign for Assange’s release.

The US and UK are respectively ranked 45th and 35th in RSF’s 2020 World Press Freedom Index.

Press contact: Rebecca Vincent on [email protected] or +44 (0)207 324 8903.