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The High Court has given permission for the US government to appeal against a decision not to extradite Wikileaks founder Julian Assange.
The US government will argue that it has given assurances that it will treat Assange in a way that would sufficiently mitigate his risk of suicide if extradited to face charges in the US.
The US will also be able to question whether the judge applied the Extradition Act correctly and gave sufficient advance notice to the US of the decision, according to a spokesperson for Assange.
The decision follows a court ruling in January this year that it would be “oppressive” to send Assange for trial in the US to face hacking and espionage charges as he would be at high risk of suicide.
Judge Vanessa Baraitser said that Assange was at risk of taking his own life and has the “intelligence and the determination” to circumvent the suicide prevention programmes in US prisons.
The case represents the first time that the US Espionage Act, originally enacted to prosecute spies during the First World War, has been used to bring charges against an individual for receiving and publishing classified information.
Offer for Assange to serve sentence in Australia
It also emerged that the US has offered assurances that it would consent to Assange being transferred to his home country of Australia to serve any custodial sentence.
Assange would not be imprisoned in a Supermax prison, such as ADX Colorado, which defence experts argued would put Assange’s physical and mental health at risk, the US has told the court.
The Old Bailey heard evidence from a former prison warder in September that inmates under SAMS are held in their cells for 23 to 24 hours a day and are denied association with other prisoners.
The US will argue that the judge made errors of law in her assessment that Assange’s physical and mental conditions mean that, under section 91 of the 2003 Extradition Act, it would be “unjust or oppressive” to extradite him.
It will also argue that the judge failed to notify the US of her decision that Assange could not be extradited for health reasons under section 91.
That would have given the US government the opportunity to offer assurances to the court about Assange’s treatment in the US.
Court refuses two grounds of appeal over medical evidence
The court rejected two of the five grounds of appeal put forward by the US. It did not accept an appeal on the grounds that the District Judge should have rejected evidence from a defence psychiatric expert, Professor Michael Kopelman, head of neuropsychiatry at King’s College London,
The US had argued that the judge had found that Kopelman had misled her on a material issue and should have ruled that his evidence on Assange’s mental condition was inadmissible. Alternatively his evidence should be granted less weight than two other independent experts that had a different opinion, the US said.
The court did not accept the US arguments as grounds for appeal, and also rejected claims that the judge erred in her overall assessment of the evidence that Assange was at risk of suicide
Assange has won backing from the New York Times, The Washington Post, the National Union of Journalists, Reporters Without Borders, and other press organisations that are concerned that similar charges could be brought against journalists who may publish classified information in the course of their work.
The WikiLeaks founder faces 17 charges under the 1917 Espionage Act for receiving and publishing hundreds of thousands of classified government documents leaked by former US Army intelligence analyst Chelsea Manning in 2010.
He also faced one count under the Computer Fraud and Abuse Act, which was later bolstered by further contested allegations that he conspired with others to encourage them to obtain classified material through hacking.
The circumstances of the extradition, Assange’s clinical history and autism spectrum disorder diagnosis put him at high risk of taking his own life, the court had previously concluded.
The US appeal was lodged by the Trump administration two days before President Biden took office. Assange’s defence lawyers allege the case against him is politically motivated.
Assange, who has been held on remand in Belmarsh prison in south-east London since April 2019, could face up to 175 years in prison if convicted.
Rebecca Vincent, director of campaigns for Reporters without Borders, said that Assange’s prosecution in the US would have “severe and long-lasting implications for journalism and press freedom”.
“We call again for the Biden administration to drop the appeal and close the case, and for the UK to immediately release Assange from prison, where his mental and physical health remain at high risk,” she said.
Assange’s fiancé Stella Moris questioned the deal offered by the US. "It was always [Julian's] right to request a prisoner transfer to Australia to finish serving his sentence because he is an Australian. It is no concession at all," she said.
"What is crucial to understand is that prisoner transfers are eligible only after all appeals have been exhausted. For the case to reach the US Supreme Court could easily take a decade, even two. What the US is proposing is a formula to keep Julian in prison effectively for the rest of his life. He should not be in prison for a single day, not in the UK, not in the United States, not in Australia because journalism is not a crime.”
Moris added: “I am appealing directly to the Biden government to do the right thing, even at this late stage.”
No date has been set for the hearing.
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