Julian Assange w/UN special rapporteur on torture

CH: WikiLeaks founder Julian Assange was dragged out of the Ecuadoran Embassy in London by British police two months ago after nearly seven years in the embassy.  He was incarcerated with a 50-week sentence for a bail violation in the high-security Belmarsh Prison in London.  In declining health, he was transferred last week to the hospital wing of the prison.  He was unable to participate in his first court hearing by video link.  Assange's physical and psychological state, which includes a dramatic loss of weight and difficulty in holding a conversation, came as the United Nations Rapporteur on Torture, Nils Melzer issued a report saying Assange had undergone prolonged psychological torture.  Melzer went on to criticize what he called the judicial persecution of Assange by Great Britain, the United States, Ecuador, and Sweden.  He warned that Assange would face a politicized show trial in the United States, if he were extradited to face 17 charges under the Espionage Act for his role in publishing classified military and diplomatic cables, documents, and videos that exposed US war crimes in Iraq and Afghanistan.  If found guilty, Assange could receive a 170-year prison sentence.  Joining me from Vienna to discuss the conditions of Assange's detention, his psychological and physical health, as well as the judicial proceedings against Assange, is UN Special Rapporteur on Torture, Nils Melzer.  So Nils, let's begin.  You visited Julian on May 9th accompanied by two doctors who specialize in psychological torture.  What did you find?

NM: Well, thank you for having me.  Yes, indeed, on the 9th of May, I was able to visit Mr. Assange in Belmarsh Prison.  I was accompanied by two medical experts, a forensic expert and a psychiatrist.  Both of them are specialized in identifying, examining, and documenting the traces of psychological and physical torture.  What we found is that Mr. Assange shows all the symptoms that are typical for a person that has been exposed to a prolonged psychological torture.  What we're talking about is severe traumatization, chronic anxiety, intense constant stress, and inability to relax, to focus, to think in a structured straight line.  So, someone who's in a constant hyper-stimulated stage and cannot--can no longer relax.

CH: And what are both the physical and psychological, short-term and long-term effects and what do you attribute that psychological torture to?  Because you have really pinned the blame on four different governments.

NM: Right.  Well, obviously, you know, psychological torture can have various consequences.  It's difficult to predict exactly how the situation will evolve.  What we've seen now during my visit was already alarming and what we have seen since then that his state of health has dramatically deteriorated as predicted by the psychiatrist accompanying my visit.  What would--can happen obviously in a prolongation of this is that it will have irreversible damage even on the physical level.  First on the--on the psychological emotional level, but then also on the physical level that can lead to nervous breakdowns or even actually then to cardiovascular damage that is no longer reversible.  But it's very difficult to predict that with accuracy and obviously I'm not myself a doctor so I don't want to speculate where this will go.  What we see that today, Mr. Assange is no longer capable to participate in his own court hearings.  Now, how do we attribute this to these four countries that were mentioned in my report?  Well, Mr. Assange has been isolated for about seven years in his--in the--in his room in the Ecuadoran Embassy.  So he's been exposed to a very controlled environment where his access to the outside world has been increasingly limited.  So, the factors that could have caused such grave consequences are basically identifiable with a high degree of certainty because there are no other external factors that are unknown to us.  We know very much what he has been exposed to.  So, here, I have identified four main factors that I think have affected him.  One was certainly the attempt of the US to get Assange extradited and to be able to prosecute him and, in my view, having looked at the records, also to make an example of him in order to deter others from imitating what Assange and WikiLeaks have done in terms of exposing great, you know, big amounts of compromising information about the United States.  And once--that's a big elephant in the room that has accompanied this case for the past decade.  And from this--around this narrative evolved the rest of the judicial proceedings that we have seen against Mr. Assange.  I think it is important to see that Mr. Assange had a credible fear from the beginning to be extradited to the US and to be exposed to cruel, inhuman, and degrading treatment there.  I can speak more to this just in a moment, but once we recognize that he had this credible fear, obviously he would not expose himself to this--to a situation where he could be extradited to the US.  So when the Swedes initiated legal proceedings or a preliminary investigation against him for sexual offenses, it's important to know that once the complainant had informed the police, immediately after that, the public was informed and Assange actually was never questioned by the police before the public was informed and he learned about these allegations in the press.  He was in Sweden at the time and immediately went to a police station himself and said, "Could I please make my statement and participate in this?"  Because Swedish law actually even prohibits the publication of the name of the complainant and the suspected offender in a sexual offense case.  His statement was taken and two or three days later, the prosecutor closed the case saying that there was no evidence for any crime having been committed at all.  Now, just a day or two later, it was reopened by a different prosecutor and Mr. Assange voluntarily stayed on in Sweden for three weeks saying, "I'm at the disposal of the prosecution for any questions you have to ask."  And when he had the commitment in London and he had to leave, he asked the prosecutor whether he was allowed to leave, which was confirmed, and so he was authorized to leave and he left the country.  And as soon as he was basically in the UK, Sweden started to ask--issued an arrest warrant against him and claimed that he had tried to avoid it, to avoid question.  And they had asked him to come back to Sweden for questioning.  And then Mr. Assange became a little bit suspicious and asked, "Well, I thought we had dealt with this, so what's the issue?"  And he was afraid that he was just being called back so Sweden could surrender him to the US.  And here I have to open a parenthesis.  We have to know that Sweden has had a history of surrendering people to the CIA without any due process from Sweden.  In 2001 I believe, Sweden surrendered two Egyptian nationals who had been recognized asylum seekers in Sweden without any due process to the CIA on Stockholm Airport and they were flown to Egypt and were tortured there.  So, Assange had a credible fear that this could happen to him.  And so he asked Sweden to guarantee that they would not extradite him to the US if he came for questioning on the sexual offense cases.  Sweden consistently refused to give this guarantee.  Then Assange said, "Well, I'm not going to come to Sweden if you can't guarantee that, but I'm going to be at your disposal for questioning through video link," which Sweden refused, although they practiced this in multiple other cases at the same time.  Then Assange said, "Well, if you want--don't want to question me through video link, you can come to London and question me here in the presence of my lawyer."  And the--Sweden again refused to do that and insisted on having him extradited to Sweden and without a guarantee on--against further extradition to the US.  So that's why, and it's important to understand that, that's why Mr. Assange was--looked for refuge in the Ecuadoran Embassy once the extradition proceeding from--to Sweden didn't go in his favor at the Supreme Court in the UK.  So once he was about to be extradited to Sweden, he escaped into the Ecuadoran Embassy not because he didn't want to confront the Swedish allegations, but because he didn't want to get exposed to further extradition to the US.  I think it's important also to point out that what is called a rape allegation is not by any stretch what would be called, you know, rape in English or any other language in Swedish and the world.  And I know what I'm talking about because I do speak Swedish.  So, what this--what this rape allegation refers to, an offense that doesn't involve any violence.  So essentially he is being accused or alleged to have intentionally ripped a condom during consensual intercourse with a woman.  She says it was intention, he says it was accident.  And so predictably, this is something no one will ever be able to prove.  The piece of evidence that was submitted to the prosecution, the condom, was actually examined and did not have any DNA on it from him, from anyone else, or from the complainant.  So it seems that this was just a new condom that had been submitted as evidence against him.  So, there is no evidence that he committed any offense.  And still, the Swedish law also prohibits the prosecution from talking publicly about sexual offenses that are under investigation and they, from day one, basically informed the public that Mr. Assange was suspected of rape.  And so this was a clearly misleading allegation.  And they also refused any--they went out of their way, really, to prevent Mr. Assange from taking--from making his own voice heard and to defend himself publicly against these allegations without, at the same time, exposing himself to a extradition to the US where he had a credible fear of being exposed there to serious violations of his human rights.  So--and this whole narrative is extremely important because that dominated his presence in the Ecuadoran Embassy for seven years.

CH: We're going to take a break but before I do, would you argue that this is part of a concerted judicial prosecution?  Those are the terms that you've used kind of in concert between Sweden, Ecuador, the UK, and the United States.

NM: Well, initially, Ecuador obviously was--offered him refuge and asylum status and was not part of that, but there are emails that have been published where the British Crime Prosecution Service actually encourages the Swedes not to get "cold feet" when they wanted to close this investigation and to maintain that pressure on Mr. Assange.  And the way it has been conducted, I don't see any explanation on how a prosecutor could maintain an investigation like this, a preliminary investigation without ever pressing charges, without any evidence being produced unless there are some ulterior motives.

CH: Great.  When we come back, we'll continue our conversation about Julian Assange with UN Special Rapporteur Nils Melzer.  Welcome back to On Contact.  We continue our conversation about Julian Assange with UN Special Rapporteur on Torture, Nils Melzer.  So, talk a little bit about your concerns about extradition.  And you are, I believe, a lawyer.  Also, legally, the arguments that have seen him now serving a 50-week prison sentence.  So, both from the legal standpoint what's happening to him now, and your concerns about extradition to the United States.

NM: Well, first of all, I believe it's important to understand that the prison sentence that he's serving now relates to him violating the bail conditions that the British courts had established at the time in relation to the extradition request by Sweden.  So, Sweden had asked for his extradition because of the sexual offense cases.  And then, when he was about to be extradited, he violated the bail conditions to seek asylum that was given to him by the Ecuadorian state and maintained for almost seven years.  So, when the president of Ecuador decided one day he will…

CH: Let me just interrupt.  It's an--there was a change of president.  So, this was Lenin Moreno.

NM: Right.  Lenin Moreno was elected in 2017.  So, when he came to office, he sought more, you know, to approach the US and to get a better relationship with the US.  And it seems that part of this, you know, apaisement was to get Assange extradited to the US.  And so, Moreno one day decided that he would terminate the asylum status of Julian Assange and also suspend his citizenship the same day on the 11th of April, without any announcement, without any due process.  He was deprived of this status--of this legal status and expelled from the embassy, arrested by the British police.  And within three hours, after six years in the embassy, he was brought to court, to the British court for--and was convicted in a hearing that lasted allegedly about 15 minutes.  After he had had, again, about 15 minutes to prepare his defense in a very agitated state, he had just been arrested after six years in the embassy, he was given only a quarter of an hour with his lawyers to prepare his defense.  The lawyer during the--the legal--the defense counsel during the hearing submitted a file to the judge saying that one of the judges had a strong conflict of interest because her husband had been exposed by WikiLeaks.  And so there was a conflict of interest that needed to be investigated, so he had an objection against this hearing.  The judge brushed this aside, apparently, and immediately said, I--you know, complained, "How dare you, defense counsel, accuse one of our judges of a conflict of interest," convicted Mr. Assange immediately, and called him a narcissist who cannot get beyond his own self-interest.  Now, you have to know during this hearing, Mr. Assange had said nothing except, "I plead not guilty."  So, how could he be a narcissist that cannot get beyond his own self-interest?  So, clearly, the judge had brought a prejudice, a bias with him into the courtroom and displayed a clear bias against Mr. Assange.  Now, in the sentencing hearing a little bit later, I think it was the 1st of May, he was sentenced to 50 weeks in prison which is just shy of the maximum of one year in prison that you can get for a bail violation.  And the court--the judge said that this was one of the gravest violation imaginable of bail conditions.  And although the lawyers had submitted a thick file again with mitigating circumstances saying, "Look, Mr. Assange really had a credible fear of being extradited to the US."  So, he apologized for violating the bail but he just explained why he did so and that he was actually given asylum by a state for six plus years.  And the judge actually refused to take that into account as mitigating circumstances and sentenced him close to the maximum.  So, again, it shows the disproportionate sentencing and a bias against him, where normally a bail violation would lead to a fine, and perhaps in a very grave case, to a short prison sentence.  So, that's what we see in the UK courts.  Now, again, elephant in the room being extradition to the US, it is very important here that we speak about the risks that he would be exposed to in case of extradition to the US.  Personally, I'm convinced there is no chance he would get a fair trial in the United States.  And why do I say that?  Well, fair trial certainly generally requires a presumption of innocence.  Now, I don't have to explain to you what is the public opinion about their Julian Assange in the US after almost a decade of unrestrained, I would say, public mobbing and, you know, intimidation, calls for his assassination, and instigation to violence against him.  He's been exposed to public ridicule.  He has--by--including by, you know, serving officials and former officials of government by, you know, prominent personalities.  So, there was an unrestrained campaign of public mobbing he has been exposed to.  And the--so there is--it's very difficult for him to get a unbiased, impartial court hearing.  The fair trial also requires legality that he's actually being charged for something that is punishable.  Now, if you look at the 17 of the 18 charges are under the Espionage Act, and all of them relate to activities that any investigative journalist would conduct and would be protected under, I believe, it's the First Amendment of the US Constitution, under the freedom of press and freedom of expression.  And then the 18th charge, the so-called hacking charge, doesn't relate to him--doesn't claim that he actually hacked a computer to receive information, but he obtained all of the information he published by someone who had full clearance.  So he, as any other investigative journalist who's just received this information, may have perhaps encouraged a source as any journalist would do to give him the information and then published it.  And the hacking charge relates only to him having unsuccessfully attempted to help the source to break a password that would have allowed her to cover her traces, her tracks.  But he didn't succeed, so there was no damage done.  And then, I believe the maximum sentence for this type of offense would be about five years in prison.  Now clearly if it wasn't an unsuccessful attempt, if punishable at all, it would be at the lower range of these five years of imprisonment or even just a fine.  Now, I don't see any possibility, politically, that Mr. Assange would be acquitted in the US or that you--that he would receive a very light sentence of, you know, say, six weeks in prison and then he would be released.  I think that's utterly unrealistic, especially when we see the specific court, the so-called Espionage Court in East--in the Eastern District of Virginia where he has been charged.  My understanding is that there has been no defendant that has been acquitted there of national security charges.  We have seen Chelsea Manning, who was actually the source of the information Assange published, had been sentenced originally to 35 years in prison, a sentence that would usually be given to a leading war criminal in The Hague.  Now, luckily she has been pardoned by Obama in the last week of his--of his--in office.  But it shows the kind of sentence that probably would be given to Assange.  And it also needs to be pointed out that a fair trial requires equality before the law.  And now when a government prosecutes a whistleblower, let alone a journalist, for having exposed serious by government agents, I'm talking about war crimes.  And these war crimes are not being prosecuted at all, but the source is being prosecuted and faces punishments like life in prison without parole, in the worst case, death penalty.  Then, there's something--the government really loses any credibility in legal terms, in moral terms, and in political terms, and in my--that's where--why I say prosecution then becomes persecution because there is no longer the rule of law.  There is no equality before the law.  There is no transparent court proceeding when you have a secret, you know, grand jury and secret sessions debating a classified evidence.  It's--these are proceedings that are fundamentally skewed against the defendant, and I don't think Julian Assange would get a fair trial in the US.

CH: I first want to point out, number one, he's not an American citizen.  He's an Australian citizen.  Although I think as you have pointed out, Australia has kind of dropped the ball in terms of protecting an Australian citizen.  Secondly, WikiLeaks is a news organization that is not based in the United States.  So I think there's even the legal question of how he can be charged under the Espionage Act.  Again, I'm going to ask you as an attorney, do you think Julian Assange committed a crime?

NM: Personally, I--from the evidence I have seen, I don't think so.  Perhaps you could--you know--you know that interpreting the, you know, criminal code is also--always leaves a certain margin of appreciation to the judge.  And to be fair, I think you could construct a slight offense perhaps if all the allegations are proven in relation to, you know, trying--attempting unsuccessfully to help someone breaking a code but not succeeding.  It's a bit like charging someone for trying to exceed the speed limit but not succeeding because the car is too weak.  I don't think that makes sense from a prosecutorial standpoint, even if theoretically could--you could construct a certain criminal energy, I don't think that makes any sense at all.  It certainly doesn't justify the type of suffering he has been going through and that he would likely face when extradited to the US.

CH: I would just point out, as a former investigative journalist for the New York Times who published classified material in the New York Times, we did help our sources attempt to protect themselves.  That was a standard protocol.

NM: I just wanted to raise one example that is unrelated to this case just for comparison.  We recently had two Reuters journalists being imprisoned in Myanmar for having exposed a massacre by Myanmar soldiers on civilians.  They were sentenced to, I believe, ten years in prison and served, I believe, one and a half years and were then pardoned.  At the same time, though, Myanmar actually prosecuted the involved soldiers and sentenced them to, I believe, seven years in prison, or it was the other way around, they were sentenced to ten and the others to seven, but at long prison sentences and they were pardoned, too, after a year.  But still, they actually prosecuted these soldiers.  Now, the US has a long way from that.  They have not prosecuted anyone, to my knowledge, in relation to the Collateral Murder video or to the Senate committee report on torture.

CH: That's an extremely good point.  The people who expose the war crimes, Chelsea Manning, Julian Assange, were--have been persecuted or imprisoned, and we have a slew of whistleblowers, especially under the Obama administration, who attempted to expose malfeasance, fraud, and crimes by the government, they were all persecuted under the Espionage Act.  So, I think all of your concerns about the judicial system in the United States are extremely valid.  I just want to close, we have a few seconds left, what would you recommend be the proper treatment at this moment of Julian Assange?

NM: Well, clearly in my view, an extradition to the US is out of the question in the current circumstances.  And Britain and Sweden and Ecuador have to recognize that in how they handle this affair.  They clearly violated their convention against torture.  They should release Mr. Assange.  I--they may question him with regard to the sexual offences, but frankly I don't think there is--there's really much behind that.  And if there is, I think he has suffered more than his share already through that ill treatment, and he should be released and he should be compensated, and he should be rehabilitated by those states.

CH: That was Nils Melzer, UN Special Rapporteur on Torture.  And thank you very much, Nils.