The relentless pursuit by the United States of Australian publisher Julian Assange continues with a legal argument last week about the scope of an appeal hearing in the UK Court of Appeal in October this year.
Meanwhile, here in Australia, our government remains indifferent to the declining health of one of its citizens and the oppressive conduct of its key ally, the United States which continues to petulantly pursue Assange because he revealed direct evidence of war crimes committed in Iraq and Afghanistan in 2010-2011.
The Assange hearing last Wednesday was revealing. One of the main reasons the US’s request to extradite Assange to that country to face espionage law charges was refused in January this year by Judge Vanessa Baraitser was that there was, and remains, a real risk Assange would commit suicide because of prison conditions which on any reasonable estimate amount to torture. The expert witness psychiatrist called by Assange’s lawyers in the extradition hearing Professor Michael Kopelman had opined as to the significant risk that Assange would suicide, an assessment which Judge Baraitser took into account in deciding to refuse extradition.
What Kopelman did not tell the extradition hearing was that Assange had formed a relationship with his now fiancé Stella Moris and they had two children while he was in the Ecuadorean Embassy where he sought and was granted asylum, and remained in effective detention until 2019. There was a very good reason for Kopelman not to do this, in fact it was a matter of life and death. Ms Moris and her children have lived with the threat of serious harm or death to themselves for some years. It is now known Assange was constantly spied on in the Ecuadorean Embassy his meetings with lawyers and other advisers surveiled, and plots to kidnap and kill him have been revealed in recent times. The extreme level of risk of revealing the existence of Ms Morris and Assange’s two children by Professor Kopelman in those circumstances explains his decision to not mention their existence in his evidence. An ‘understandable human response’ has one of the judges hearing last’s week argument, Lord Justice Timothy Holroyde put it.
It is that which the US has now been permitted to argue when the appeal is heard in two months’ time. But it may not assist the US all that much. While Lord Justice Holroyde said that in his view it is arguable that Judge Baraitser should have given more “detailed and critical consideration” to a report from an expert witness that contained “misleading information” and “significant omissions”, he observed that this does not mean the report could not have been relied upon at all by Judge Baraitser. “To my mind, this goes more to the weight given to the evidence than to its admissibility,” Lord Justice Holroyde said. A telling statement that leaves open the possibility of an appeal court finding the report still carried considerable weight and that Judge Baraitser was entitled to rely upon it.
The point which lawyers acting for the US also seemed to be making last week is that the only reason not to extradite a person is if they are suffering a “mental illness of a type that the ability to resist suicide has been lost.” Assange is not in that category counsel for the US told the court. Again, not the strongest of appeal points one would have thought.
Let’s leave aside for one moment that these legal proceedings relate to events that happened over 10 years ago, where the person accused of crimes has been detained for a decade and in extremely harsh conditions, that every freedom of speech organisation around the world has condemned the United States’ attack on that right and the extraordinary dangerousness of the precedent this case sets because no journalist anywhere in the world will be protected from the clutches of Washington’ legal machine if they publish material which embarrasses the US.
Instead, let’s focus on a question which the Australian government should be asking its friends in London and the US, but particularly the latter. Is arguing how far along this Australian citizen is along the scale of suicidality and highlighting the relationship between that issue and the presence of his fiancé and young children, already suffering under the relentless pressure of the case, in the interests of societies that regards itself as civilised? There has to be a point at which the legal process stops because the ghoulishness of the argument and the impact on third parties is of such magnitude it cannot be said to be in the interests of justice, in the true meaning of that word, to continue proceedings. This is a point which Australia can and should legitimately press with its two closest allies with whom it shares a robust relationship.
There is of course a sad but awful irony which has emerged in Australia about the Assange case. While Australian journalists are lauded for exposing footage showing what are alleged to be war crimes committed by Australian soldiers in Afghanistan and in respect of which the Australian government has been forced to establish an investigation unit to sift through the evidence and recommend charges, in London a fellow Australian journalist languishes in the hellhole that is Belmarsh prison for doing exactly the same.
Greg Barns SC is a long-time adviser to the Australian Assange campaign
Greg Barns SC is a former National President of the Australian Lawyers Alliance.
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