Central Criminal Court, London.
The prosecutors in the Julian Assange case did their show trial predecessors from other legal traditions proud. The ghosts of such figures as Soviet state prosecutor Andrey Vyshinsky, would have approved of the line of questioning taken by James Lewis QC: suggest that Assange, accused of 17 counts of violating the US Espionage Act and one count of conspiracy to commit a computer crime, reads medical literature to exaggerate his condition.
Additionally to the political hook the defence is hanging its case on – political offences being a bar to extradition in the United Kingdom’s 2003 Extradition Act) – a medical one has been fashioned. Section 91 makes it clear that the judge in the extradition hearing must order the discharge of a person or adjourn the extradition hearing if “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.” This can be read alongside the application of the European Convention of Human Rights, which stipulates under Article 3 that, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Dr. Michael Kopelman, Emeritus Professor of Neuropsychiatry at the Institute of Psychiatry at King’s College London, took the stand at the Old Bailey to delve into Assange’s medical condition. His visits to Assange had yielded a man deprived of sleep, suffering “loss of weight, a sense of pre-occupation and helplessness as a result of threats to his life, the concealment of a razor blade as a means to self-harm and obsessive ruminations of ways of killing himself.” Kopelman was, he stated in submissions to the court, “as certain as a psychiatrist ever can be that, in the event of imminent extradition, Mr Assange would indeed find a way to commit suicide.”
The cross-examination by Lewis was in the worst traditions of the law. Non sequiturs were aplenty; baseless assessments on expertise generously made. Kopelman was, claimed the prosecutor, an expert in brain disease and its link with mental health, making him ill-suited to comment on Assange’s health. Kopelman, rather put out at this, reminded Lewis that he had previously called upon his services in a difference case. It was “a bit rich” for the prosecutor to now be challenging his qualifications. The prosecution also suggested that Kopelman’s psychiatric credentials were somehow shaded, if not rendered inconsequential, by him being “more of an advocate”. The defence witness snapped, suggesting he would respond to that assertion with an “unparliamentary word”.
The prosecution focused on Kopelman’s summaries of days in April and May 2019, when Assange was evaluated by psychiatrists. This gave Lewis a chance to accuse the witness of omissions unsuitable to the defence. Kopelman had to constantly remind Lewis that he only started to attend such sessions in person at the end of May.
In another feeble sortie, the prosecution suggested that Assange was medically sound because his performance at the extradition trial over the previous days had indicated no signs of depression. He was attentive to proceedings; he could answer the judge. To even the most untrained and untutored in the field of mental health, this should be regarded as an amateurish presumption: a competent performance hardly suggests the absence of depression or cognitive disturbance.
Kopelman duly made that point, referring to the transcripts Lewis had used. “I cannot evaluate his mental and cognitive state from what’s in here.” Assange had “made a few comments”; he had “some long-standing semantic knowledge”; he “replied appropriately”. None of this need suggest that his “cognitive state is normal.” If anything, they lent credibility to a diagnosis of Asperger’s syndrome.
In Kopelman’s testimony, Assange is reported to have experienced “auditory hallucinations” featuring “derogatory and persecutory” voices: “you are dust, you are dead, we are coming to get you”. In assertions that were verging on the preposterous, even by the standards of this prosecution, Lewis attempted to erect an edifice of illusion. Assange was taking everyone for a joy ride in a fantasy of mental ill-health that had no foundation. He had been surely “malingering” about his symptoms. His hallucinations had been “self-reported”. Kopelman reminded Lewis of an elementary lesson: psychiatry tended to rely on self-reporting. “I don’t believe he’s got delusions. He’s very worried about whether discussions are recorded.” Given the “experiences in the embassy, that was a rational anxiety.”
Another sally followed, this time using Assange’s family as crude props for psychobabble. In the course of the extradition proceedings, it had become clear that Assange had formed a relationship with Stella Morris, having had two children with her during his stay at the Ecuadorean embassy in London. Two reports prepared by Kopelman included quotes from a visit with Morris. The failure to mention Morris in his first report peeved Lewis. Kopelman’s explanation: “This was not in the public domain at that point, and she was very concerned about privacy so we decided not to put it in.” Once knowledge of her existence became public, “I included it.”
Lewis would have none of it: the duty to the court overrode any matters of embarrassment to Assange, and sensitivity to Morris’ privacy was of no consequence. Knowledge to the court of Morris and the children’s existence was vital, suggested Lewis, as it might be a “protective factor against suicide.” Charmingly, Lewis seemed to ignore the point that having a young family would hardly be a deterrent against self-harm when facing a promise of being locked up for life in solitary confinement in another country notorious for its lugubrious prison conditions. Death could well prove a desperate consolation. Kopelman was on to this: married people do not resist the pathway to suicide.
The psychiatric picture of Assange drawn by Kopelman was one of regression and severity, made worse by the likelihood of harm that can arise to those with Asperger’s syndrome. He had an “intense suicidal preoccupation.” Findings from autism specialist Dr Simon Baron-Cohen – that suicide is nine times more likely in patients with Asperger’s “than in the general population in England” – were mentioned. That study also found that people with Asperger’s syndrome “were significantly more likely to report suicidal ideation or plans or attempts at suicide if they also had depression.” Assange, Kopelman reasoned, faced “an abundance of known risk factors”.
In December 2019, conditions proved acute; in February and March, moderately severe. The lockdown at the Belmarsh prison facility precipitated by the coronavirus pandemic did its share of harm. Assange had sought confession with a Catholic priest, “who granted him absolution”. He had drawn up a will, scribbled farewell letters to family and friends. All signs of a man possibly readying for the other side.
As appalling as his conditions in Belmarsh had been, including a stint in confined isolation, the conditions “he would experience in North America would be far worse than anything experienced in the embassy or Belmarsh.” The imminence of extradition would “trigger a suicide attempt.” Assange’s most probable pre-trial accommodation would also encourage this. It was at the Alexandria Detention Center where Chelsea Manning attempted suicide while being held refusing to relent to a grand jury subpoena to answer questions on WikiLeaks. According to Kopelman, “It just shows how awful conditions must be.”
Attention turned to the prevalence of depression during Assange’s time in the Ecuadorean embassy, starting around 2015. This had caught the attention of Nils Melzer, the United Nations Special Rapporteur on Torture. Melzer has taken the long view on Assange: that the combined effort of several states – Ecuador, the United Kingdom, United States, Sweden – had created conditions of “psychological torture”, part of a deliberate, progressively cruel effort. There had been, he claimed in May 2019, “a relentless and unrestrained campaign of public mobbing, intimidation and defamation against Mr Assange, not only in the United States, but also in the United Kingdom, Sweden, and more recently, Ecuador.”
In company with two medical experts experienced in examining potential victims of torture and ill-treatment, Melzer’s May 9, 2019 visit to Assange confirmed that his “health has been seriously affected by the extreme hostile and arbitrary environment he has been exposed to for many years.” Assange, “in addition to physical ailments … showed all symptoms typical for prolonged exposure to psychological torture, including extreme stress, chronic anxiety and intense psychological trauma.”
In November 2019, Melzer reiterated his concerns in the face of tardiness on the part of the British authorities. “Despite the medical urgency of my [May] appeal, and the seriousness of the alleged violations, the UK has not undertaken any measures of investigation, prevention and redress required under international law.”
Melzer’s views did not impress Lewis. His labours on the Assange case were “palpable nonsense”, lacking in balance and accuracy. Kopelman was asked to distance himself from such conclusions, despite them not being an “important factor” in his work. Lewis remains comfortably deaf, not merely to Melzer’s work, but the findings of such eminent groups as Doctors for Assange, an initial collective of 60 medical doctors, growing to 117 spanning 18 countries. The Assange case, they argued in February in The Lancet, “highlights several concerning aspects that warrant the medical profession’s close attention and concerted action”. In June, the group noted that, “Isolation and under-stimulation are key psychological torture tactics, capable of inducing severe despair, disorientation, destabilisation, and disintegration of crucial mental functions.” The psychological torture of a publisher and journalist in a climate already hostile to journalism “sets a precedent of international concern.”
In a crude, somewhat farcical manoeuvre typical of the day’s proceedings, Lewis went just that bit lower in wondering whether Assange’s depression would have made a difference in soliciting or leaking “material from the US government.” Would such a tormented mind have been able to meet his media commitments (“doing a chat show” for Russia Today), or conduct public speaking engagements? Such views of depression, that great tormenter and killer, do not merely show this prosecution to be venal; they show it to be profoundly ignorant of history and medicine.
Assange’s defence team have a bright precedent to rely on. British computer scientist Lauri Love, who was also diagnosed with Asperger’s syndrome, was arrested in 2015 in the UK at the request of the United States for allegedly hacking various government entities. These included the Federal Reserve, the Environmental Protection Agency, NASA and the US Army. Initially losing his case to avoid extradition on September 16, 2016, and facing the approval to do so by then Secretary of State Amber Rudd, Love successfully appealed to the High Court. It was accepted that the US was an inappropriate forum to try Love; and that prison conditions awaiting him “would be oppressive by reason of his physical and mental condition.”
The High Court also accepted that “the fact of extradition would bring on severe depression, and that Mr Love would probably be determined to commit suicide, here or in America.” Being put on suicide watch would hardly have been adequate – it did not constitute a “form of treatment; there was no evidence that treatment would or could be made available on suicide watch for the very conditions which suicide watch itself exacerbates.”
This was strikingly appropriate and relevant. Kopelman, who also testified in Love’s case, had also been given reassurances at the time that the US prison system was up to scratch in guarding against suicide. Since then, the US prison system had been marked by the prominent suicide of Jeffrey Epstein and the attempted suicide by Manning. “Those reassurances were not very reassuring.”
Following the script sheet of the previous day, the non sequitur, pop medical view of the prosecution was again in sharp evidence at the Old Bailey. In an effort to make the road for Julian Assange’s extradition to the United States for 17 charges under the US Espionage Act and one under the Computer Fraud and Abuse Act smoother, James Lewis QC persisted in attacking suggestions that the WikiLeaks publisher was autistic, or should be treated as such.
The prosecution knows that cases such as that of Lauri Love in 2018 and Gary McKinnon in 2012, both centred on extradition efforts by the US government for hacking charges, failed on the basis that both accused would be at high risk of suicide in US prison facilities, a point exacerbated by Asperger’s syndrome and depression. In Love’s case, the UK High Court found that “the fact of extradition would bring on severe depression, and that Mr Love would probably be determined to commit suicide, here or in America.” Being kept on suicide watch was woefully inadequate as a measure of protection, and did not constitute a “form of treatment”.
In McKinnon’s case, the usually icy Home Secretary, Theresa May, melted to the presence of Asperger’s syndrome and depressive illness, concluding that “extradition would give rise to such a high risk of him ending his life that a decision to extradite him would be incompatible with [his] human rights.”
Deeley for the Defence
Lewis had been less than impressive on September 22 in dealing Dr Michael Kopelman, Emeritus Professor of Neuropsychiatry at the Institute of Psychiatry at King’s College London, whose medical qualifications he saw fit to disparage as less relevant than his “advocacy”. Now, he faced the testimony of Dr Quinton Deeley, a National Health Service consultant psychiatrist who conducted two Autism Diagnostic Schedule (ADOS) tests on Assange when in Belmarsh prison. Six hours of phone interviews with Assange also took place in July 2020.
Intelligence, a penchant for analytic thought and the means of understanding systems, were detected. “With deliberation he can bring himself to understand what other people are thinking and feeling but in his day experience he is oblivious.” Deeley observed “rigidity of thoughts” and “obsessive rumination”, traits common in autism spectrum disorder. This caused him a “sense of horror”. For the publisher, extradition and prison would be “an unbearable ordeal, and I think his inability to bear that in the context of [an] acute worsening depression would confer a high risk of suicide.” Assange saw his predicament as “unjust”, believing that an “example is being made out of him”.
Deeley revealed how Assange was concerned about the superseding indictment. He feared for Joshua Schulte, alleged to have disclosed the Vault 7 files on the hacking capabilities and tools of the Central Intelligence Agency. Schulte was found guilty on counts of lying to the FBI and contempt of court but the jury tied on eight other counts in March, including the transmission of national defense information. Assistant US Attorney David Denton promised that the Department of Justice would “retry Mr Schulte on the espionage charges.”
A past suggestive of autism was also dredged. Autism spectrum disorder was, for instance, manifest in the Assange family. A friend of Assange’s from Australia, Suelette Dreyfus, had also been interviewed by Deeley. Certain behavioural traits (“outrageous behaviour and lack of propriety”) were noted in the boy from Townsville: a propensity to rearrange furniture in a café; going behind a bar to change music; impulsively taking pictures off the walls to inspect. Small-talk and chatter about the weather was reviled. Interruptions in conversation were frequent. He would talk over fellow conversationalists. Not due to arrogance, mind you: he merely had to express his views.
The prosecution then began parading various mistreatments of autism, inflicting a few mutilations upon it on the way. A person on the autism spectrum is evidently incapable of authoring books, giving speeches and hosting media gigs. Lewis went so far as to play a video of Assange’s address at London’s Frontline Club in 2010, an occasion for answering questions about the releases of WikiLeaks, protective redactions for informants and partnerships with media organisations. The suggestion by the prosecution was that someone able to field questions and participate in such sessions would surely not find themselves on the autistic spectrum.
Deeley attempted to put such erroneous views to rest. Autism was no bar to demonstrable expertise and confident authority. “It’s possible to both have a diagnosis of Asperger’s syndrome and to demonstrate expertise and be authoritative and knowledgeable about certain topics.” Assange’s performance at the Frontline Club was notexceptional for “high-functioning intelligent people on the autism spectrum.” In such settings as a Q&A format, Assange was familiar with both content and format, able to engage in “monologue”. Social niceties and etiquette were not essential.
An example was put forth. Deeley suggested Dr Temple Grandin, an expert on animal behaviour and notable autism spokesperson. On the stage she performs, confident with her subject matter, capable of holding an audience, even able to share the odd joke. Discussion with attendees after the performance is another matter. Lewis, losing patience, barked. “Are you trying to help this court or advocate a cause?”
Other angles attempting to show Assange as empathetic (this prosecution is ever a friend of contradiction) were also pursued. Having sole custody of a child, for instance, suggested inconsistency with an ASD diagnosis. His mother had also described her son as an “extraordinarily selfless father”. Deeley was also dismissive of such a reading: those on the autism spectrum could still be capable parents, be affected by suffering, appreciate a sense of duty and have principle.
The “when all else fails” approach was also deployed. Deeley’s impartiality was challenged. Was he excusing behaviour or merely confirming a diagnosis? No: the witness was merely being comprehensive rather than selective on specific items of evidence. But Lewis was in the mood for being cuttingly selective, going so far as to press the witness on his lack of eye contact in giving answers. Everyone did it, and such behaviour was hardly indicative of being on the autism spectrum. A bemused Deeley could only reply that he would not return a high score on an ADOS test; eye contact alone was not a definitive indicator.
Fazel for the prosecution
The prosecution then drew upon their own weaponry in the diagnoses war, though it seemed blunted. Seena Fazel, forensic psychiatry professor at Oxford University, took the stand as the first prosecution witness. He interviewed Assange during the summer, finding him “moderately depressed”. By late 2019, he accepted that Assange was “severely depressed”, being medicated for his condition, and suffering “episodic” bouts of depression anxiety. For all that, he deemed Assange capable of managing his suicide risk, and possessing “autistic-like traits” on the milder side of the autism spectrum.
The prosecution proceeded to list a range of programs and prison amenities suggesting that what awaited Assange was an adequate, even pleasant Supermax experience at the ADX Florence facility in Colorado. There were “13-inch televisions” in store; “arts and crafts” available. (All good, except that Assange would be in housing unit H, where such items were conspicuously absent.) Would this not, put the prosecution, reduce the risk of suicide? Fazel’s answers proved tentative. He noted that a “range of activities” were seemingly on offer by the US Bureau of Prisons, but he would need to see “whether they’re implemented in practice”, along with “the quality of the interventions.” Not the sort of qualification Lewis would have wanted.
On being cross-examined by the defence, Fazel accepted that he lacked expertise on the vast, sprawling nature of the US prison system. It followed that he had no knowledge of the pre-trial facilities at Alexandria Detention Center, where Assange will be initially held, or the consequences of applying Special Administrative Measures (SAMs). ADX Florence, this “Alcatraz of the Rockies”, has the dubious honour of being a “clean version of hell”. Even that wonderful assessment by a former warden has had to be revised. The facility, according to Alan Prendergast, became a place where the mentally ill mutilated themselves, chatted to ghosts and festered in faecal-caked isolation cells. It took a law suit to force the Bureau of Prisons to move the most disturbed prisoners out of ADX.
Fazel also accepted that lengthy prison sentences and periods of solitary confinement were conductive to a condition of hopelessness, a genuine risk factor in suicide. Such a risk increased in instances where prospects were “bleak”. Fewer places are bleaker than H Unit.