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Julian Assange would effectively be held in solitary confinement if he were to be extradited to the US, a court heard today.
The WikiLeaks founder faces 20 years in a high-security jail under the best scenario, but could be sentenced to 175 years, a US legal expert said.
Eric Lewis, a US lawyer with a master’s degree in criminology who has represented high-security prisoners, including those accused of terrorism offences, told the court that the US decision to increase the number of charges against Assange would “significantly increase the jeopardy” Assange faced.
The most severe espionage charges imposed in the US have resulted in life sentences. Even those at the lower end of the scale have led to sentences of 20 or 30 years, he said.
Lewis was speaking on the fifth day of an extradition hearing against Assange at the Old Bailey.
The 49-year-old defendant faces 17 charges under the US Espionage Act 1917, after WikiLeaks published thousands of documents from the former US Army soldier Chelsea Manning in 2010-11.
Assange faces a further charge of conspiracy to commit computer intrusion under the indictment filed by a grand jury in the Eastern District of Virginia.
The case was disrupted by technical difficulties throughout the day, which made difficult for the court to hear Lewis giving evidence remotely from the US.
Lewis said it was significant that Assange was charged under the Trump administration in 2018, rather than under the Obama presidency in 2013.
The Obama administration had concluded that it could not prosecute Assange for publishing leaked documents without also prosecuting journalists on, for example, The New York Times.
When the US filed a late indictment against Assange, that showed that The New York Times problem had “been blown out of the water”.
Lewis said that if Assange was extradited, he was almost certainly going to be subject to special administrative measures (SAMs) in a secure detention centre in Alexandria, Virginia.
This would mean Assange would not be able to associate with other prisoners, said Lewis. He would be detained for 22 or 23 hours a day in his cell.
Although prisoners are allowed out of their cell for a shower or recreation, this often takes place at night when other prisoners are sleeping, and prisoners are shackled, Lewis told the court.
He said it was highly likely that Assange would face SAMs.
“All the signs are pointing to the government taking the view that Assange has access to large amounts of secret information and being worried about disclosure,” he said.
Prosecution questions Eric Lewis’s impartiality
James Lewis QC, representing the prosecution, questioned the expertise of the witness and his impartiality.
Under questioning, Eric Lewis disclosed that he had been paid £100 an hour for his work as an expert witness in the case, but did not know how many hours he had worked.
The barrister asked Eric Lewis why he had not included a range of opinions, including that of US prosecutor Gordon Kromberg, in his witness statements.
“I don’t think I am required to set out Mr Kromberg’s half a dozen affidavits, otherwise my statements would be hundreds of pages,” he said.
The QC also questioned Eric Lewis’s independence as an expert, pointing out that he had written an op-ed in The Independent newspaper and had given a radio interview supporting Assange.
“Before I became an expert, I expressed my own views as a political and policy matter,” he said. “Those are my views and still are my views.”
Eric Lewis said he was able to analyse the law and the facts and put his personal views behind him – “something that is done all the time”.
The prosecution lawyer pressed the witness on whether he had any qualification in prison conditions or had written any peer-reviewed articles on conditions in prisons.
Eric Lewis said he had spent more time than he cared to think about visiting prisons and speaking to prisoners. He holds a degree in criminology and taught criminal law for many years, which also required a knowledge of prison conditions.
James Lewis QC for the prosecution turned to the case of Abu Khathallah, who was accused of masterminding the terrorist attacks on the US diplomatic compound in Benghazi, Libya, and was represented by Eric Lewis.
Eric Lewis said he and other lawyers had difficulty accessing Khathallah when he was placed under special measures.
“I and other lawyers on the team spent time with him, but it was neither easy nor rapid,” he said. “That is partly why he was held in remand for three years.”
Eric Lewis said he did not agree that there was a difference between administrative segregation and solitary confinement.
“I would suggest that 22 hours a day in a 50ft2 cell with no contact with the rest of the population causes people to deteriorate rapidly, and in my view is solitary confinement,” he said.
Eric Lewis said that in his view, Khathallah was held in solitary confinement, even though he had access to unlimited visits from lawyers.
“In reality, it did not include unlimited visits because there were numerous practical and legal obstacles,” he said.
The witness said that all of his legal visits to his client were recorded by cameras.
“We were told there was not sound [recording] but we were not certain of that. We were told that the team that reviewed [the recordings] were not the prosecution team,” he said. “But I have seen too many cases where those assurances were not met.”
He agreed that the conditions imposed on Khathallah did not have any impact on his acquittal on capital charges.
Prosecution lawyer under ‘intolerable pressure’
Following the cross-examination, Lewis told the judge, Vanessa Baraitser, that he was under “intolerable pressure”, to cross-examine the witness under a time guillotine.
He said Eric Lewis’s answers were too long. “I ask a question and he gives a speech,” he said.
Baraitser said Lewis had asked for four hours to cross-examine the witness and had used 30 minutes.
“I asked your view how long you will take. You have provided that estimate,” she said. “The world ‘guillotine’ comes entirely from you. I have not used it.”
Assange would be ‘unable to prepare for trial’
Under further cross-examination from the prosecution, Lewis said conditions in US prisons would make it difficult for people involved in national security trials, such as Assange, to prepare for their case.
“We are talking about a million classified documents that Mr Assange can’t see without security clearance.”
He said that anyone under SAMs is not allowed access to news or other materials unless that is agreed.
The prosecution barrister took Lewis through decisions by the European Court of Human Rights in the case of Barbar Ahmad in 2012.
The European court rejected an application that SAMs contravened Article 3 of the European Convention on Human Rights pre-trial.
“I see that is the conclusion of the court,” said Lewis, adding that new information on the state of US prisons had come to light since 2012.
The prosecution pushed Eric Lewis to say, if SAMs makes raising defence issues impossible, what were the defence issues that Assange is raising?
“I can’t say for certain. I am not his lawyer. There were a million documents that were leaked,” he said.
The witness said in written submissions that US courts were ill-prepared for people with mental health issues.
He said that ADX Florence, a maximum security institution that Lewis referred to in his evidence, had been described by the warden as “dehumanising, not fit for humanity, a fate worse than death”.
The prosecution lawyer asked Eric Lewis if he would accept that the European court took into account the mental state of a person with Asperger’s when finding incarceration in a maximum-security facility did not beach EU human rights law in its 2012 verdict.
“I would accept that with the caveat there has been much more information since 2012,” he said. “Psychological research is dynamic.”
Eric Lewis said he was not a medical expert, but relied on a public statement of the Inspector General of Prisons and of a study of “supermax prisons” by Yale Law School.
He said that only 35% of mental health patients in US prisons were being treated, that the number of mental health professionals in US prisons had been cut and that self-harm had gone up.
James Lewis QC challenged the witness, if he was an expert on mental health, to state from memory when the US Bureau of Prisons (BoP) had updated its guidelines
“I have looked at thousands and thousands of pages of documents and I don’t have that sort of eidetic memory,” he said.
The barrister pressed Lewis to say whether he was an expert on US prisons or not.
“I am an expert in what I have put in my expert report. I believe I have expert knowledge. If you are asking if I am a governor or a warden, I am not,” he said.
Following a series of technical problems, which meant the court could not hear Lewis giving evidence remotely from the US, the court adjourned the hearing until tomorrow.
The case continues.
Read more about Julian Assange’s September extradition hearing at the Old Bailey
- Lawyers for Julian Assange say the US has introduced an 11th hour indictment against the WikiLeaks founder that provides additional grounds for his extradition.
- On the second day of his extradition hearing at the Old Bailey, judge informs the WikiLeaks founder he could be removed and potentially banned from court for interrupting witnesses.
- US journalism historian and investigative journalist Mark Feldstein tells a UK court that use of the Espionage Act against Assange will have wide implications for the press.
- Trevor Timm, co-founder of the Freedom of the Press Foundation, tells a court that if the US prosecutes WikiLeaks founder Julian Assange, every reporter who receives a secret document will be criminalised.
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