15 September 2020 — The Dissenter
Lead prosecutor James Lewis focused on a prior ruling by European Court of Human Rights on supermax prisons that clearly sided with the U.S. government.
The legal team for Julian Assange strongly believes if the WikiLeaks founder is extradited to the United States he will be detained in harsh and abusive conditions, and if convicted, he will be incarcerated in a supermax prison in Florence, Colorado, in conditions that amount to solitary confinement.
Such conditions would likely violate Article 3 of the Human Rights Act in the United Kingdom, which is supposed to protect individuals from torture or cruel and inhuman treatment. But during the fifth day of proceedings in Assange’s extradition trial, James Lewis, the prosecutor, focused on a prior ruling from the European Court of Human Rights (ECHR) that clearly sided with the U.S. government.
Defense attorneys will likely have to persuade judges that the ECHR was incorrect or that new information involving abusive conditions has come to light in order for such evidence to save Assange from extradition.
Assange is accused of 17 counts of violating the Espionage Act and one count of conspiracy to commit a computer crime that, as alleged in the indictment, is written like an Espionage Act offense.
The charges criminalize the act of merely receiving classified information, as well as the publication of state secrets from the United States government, which is why the case is widely viewed as an attack on press freedom.
Eric Lewis, an international attorney based in Washington D.C. who has previously represented Guantanamo and Afghan detainees, took the proverbial witness stand to testify via video link.
In 2012, in a case involving Babar Ahmad and four other defendants accused of terrorism offenses, the ECHR ruled potential confinement in a U.S. supermax prison should not absolutely prevent extradition
“The Federal Bureau of Prisons applies accessible and rational criteria when deciding whether to transfer an inmate to ADX [supermax prison],” the court declared. “Placement is accompanied by a high degree of involvement of senior officials within the Bureau who are external to the inmate’s current institution. Their involvement and the requirement that a hearing be held before transfer provide an appropriate measure of procedural protection.”
The court continued, “Even if the transfer process were unsatisfactory, there would be recourse to both the Bureau’s administrative remedy program and the federal courts, by bringing a claim under the due process clause of the Fourteenth Amendment to cure any defects in the process.”
Eric Lewis was confronted with the ECHR decision, and he maintained there was more information about supermax facilities that has come out since 2012.
Assange is not a Muslim, said Eric Lewis. Special Administrative Measures, or SAMs, which the U.S. government employs to isolate prisoners, would not be applied based upon religion. He also did not believe the defendants’ potential deterioration of mental health was central to the court’s decision.
However, three of the defendants who appealed to the EHCR emphasized their various mental health problems. The court mentioned those mental health conditions were not enough to prevent their detention in “high-security prisons in the United Kingdom.”
Referring to a submission by the psychologist assigned to ADX Florence, the EHCR concluded, “It would not appear that the psychiatric services which are available at ADX would be unable to treat such conditions. The court accordingly finds that there would not be a violation of Article 3 in respect of these applicants in respect of their possible detention at ADX.”
That would seem to foreclose arguments against extradition that depend on evidence of Assange’s deteriorating mental health to persuade the U.K. courts not to authorize extradition.
Nonetheless, evidence indicates the ECHR decision relied upon by the prosecutor exaggerated the extent of procedural protections for prisoners or disregarded the reality of what happens to those confined in a supermax facility.
Assange would be a national security inmate. As Eric Lewis noted, it is Attorney General William Barr, who would likely be the one to authorize SAMs for Assange.
A report [PDF] published in 2017 by the Center for Constitutional Rights and Allard K. Lowenstein International Human Rights Clinic at Yale Law School examined the impact of SAMs on prisoners.
“Prisoners may be subjected to SAMs without any meaningful explanation or hearing regarding what they did or why the Attorney General thought the restrictions were necessary,” the report declared. “They cannot challenge the SAMs designation until after they are placed under SAMs. Even then, like all federal prisoners, they risk having their cases dismissed for failure to exhaust the effectively meaningless Administrative Remedy Program.”
“Because the very measures they wish to challenge also forbid communication with outside parties, prisoners whose requests to contact attorneys are denied must proceed without the assistance of counsel. That would be a challenging feat for any layperson, and nearly impossible for someone operating under the debilitating circumstances of solitary confinement.”
The report additionally states, “Federal prosecutors regularly request that the Attorney General place defendants under these punishing conditions while they await trial, before they have been convicted of any crime. In numerous cases, the Attorney General recommends lifting SAMs after the defendant pleads guilty. This practice erodes defendants’ presumption of innocence and serves as a tool to coerce them into cooperating with the government and pleading guilty.”
Assange could be confined under SAMs for the purpose of coercing him into pleading guilty before he has the opportunity to try and challenge the unprecedented charges against him that criminalize his work as a publisher.
Like Eric Lewis said, “This is not a terrorist case,” but if Barr authorized SAMs for Assange, it would include assessments from the heads of intelligence agencies, including CIA Director Gina Haspel, who was involved in operating a black site prison, where detainees were tortured.
Haspel is complicit in some of the very examples of U.S. torture that WikiLeaks exposed, and yet she would be able to play a role in determining how he was controlled and silenced while awaiting trial.
The Justice Department would contend, as Eric Lewis suggested, that Assange had “access to large amounts of secret information,” and officials would be concerned about Assange further disclosing sensitive secrets.
At the Alexandria Detention Center, Assange could expect to be held in conditions before trial that amounted to solitary confinement.
Worse, if Assange was convicted and wound up in what is known as the H Block at ADX Florence, he would be housed in what has been described as the “only known black site on American soil,” or as Alan Prendergast put it for Westword, “A black hole, a void where men are slowly buried alive in layers of isolation until they vanish entirely.”
Photo of ADX Florence Supermax Prison – from Bureau of Prisons and in the public domain