The Assange cases: The Demarcation of Punishment

The recent judicial developments in over a decade long saga of Julian Assange’s stay in the UK move him a step closer to being extradited to the US, the very thing he has been hiding from in London. The founder of WikiLeaks is a hugely divisive public figure, as can be observed both in the trial and in the public reactions to it. Assange and WikiLeaks, established in 2006, represent a zeitgeist defined not only by global public concern over US military actions, but also fears related to the power the internet exerts over politics. As such, the recent judgement in Assange’s case raises issues that not only span from freedom of speech to national security, but most notably also matters of mental health and how we punish (and should punish) society’s crimes.

WikiLeaks not protected under freedom of speech

In December last year, the High Court allowed the appeal of the US, overturning the previous Magistrates’ Court decision to not extradite Assange. In January, he was provided with the opportunity to apply to the Supreme Court, thus we are awaiting whether Assange will be able to argue his case yet again. If extradited to US, he would be facing 18 charges in relation to him obtaining and publishing a broad variety of US military documents – one worth mentioning is the publishing of almost 400,000 field reports concerning the Iraq War; the biggest leak in US military history.

This constitutes criminal conduct due to the documents being confidential and their publishing being detrimental to US national security. At the Magistrates’ Court, Assange attempted to put forward arguments of freedom of speech protecting his decision to release the immense number of confidential documents. He purported that in doing so, WikiLeaks was motivated by values of transparency and seeking to spark public debate about US policy. This aim was fulfilled – the Iraq War Logs caused great public outcry as they revealed information concerning abuse, torture, and civilian casualties. Despite the possibly noble purpose, this argument failed at trial in the light of the limits placed upon freedom of speech. The leaks clearly harmed national interests and more importantly, gravely endangered US sources. The documents were published without being redacted, leading to the Taliban explicitly stating it would punish the individuals who were listed as assisting the US. This showed the carelessness of WikiLeaks, who dismissed allegations of misconduct, and also possibly eroded the trust of any individuals who could choose to work with the US in the future. Compromising individuals’ safety and effectively “deciding the fate of others” was drawn by the District Judge as not protected by freedom of speech, despite many of Assange’s supporters claiming this sets dangerous precedent for freedom of journalism. However, the decision not to redact the documents was condemned by numerous media organisations, such as the Guardian and The New York Times, as inconsistent with the principles of responsible journalism, thus not covered by any relevant protection nor having any impact on the industry – as such carelessness simply cannot be regarded as journalism.

Carelessness and questionable value judgements are not the only character flaws ascribed to Assange. The beginning of his hideout in the UK involved Sweden requesting his extradition in connection to sexual misconduct charges. Assange responded to this situation by commencing his 7-year asylum at the Ecuadorian Embassy, which infamously ended with Ecuadorian authorities handing him over to the UK due to a series of disputes and issues, especially his close ties with Russia. Lastly, Assange remains a deeply polarizing figure due to many finding him to be “self-centred and narcissistic” (this is a description put forward by the psychiatrist evaluating Assange for the US for the purposes of the trial). This possibly raises questions over his true motivations, and some argue that he is simply drawn to the power stemming from undermining one of the biggest world militaries, rather than attempting to act for the public good – that would arguably explain the carelessness demonstrated during the publication of the confidential, unredacted documents. However, it must be emphasised that in judicial proceedings, and essentially in all issues of public importance, we cannot get blindsided by flaws and judgements of one’s character. There are many things one could condemn about Assange’s behaviour. Yet compellingly, both the Magistrates’ Court and the High Court let the case be swayed by considerations of Assange’s mental health and by the inherent value of an individual’s life.

Bar to extradition as oppressive

First, it must be noted that Assange, the defence, put forward 7 arguments against extradition to the US, and merely one was successful, deciding the whole case – this demonstrates the immense weight attached to his mental state. While this was overturned by the High Court, it was not due to the court diminishing the importance of his mental health, but it was rather due to the US providing assurances about the care that Assange will be provided with. These assurances were included in a Diplomatic Note in February 2021, a month after the first judgement. Additionally, these assurances are conditional. Despite these two details being seen as problematic by many, the High Court regarded the assurances as sufficient to allow extradition. This is the issue that could potentially be explored at the Supreme Court, and displays the interesting dynamic involved in extraditions. For example, at the High Court, there were submissions of evidence of excellent diplomatic relationships and historical cooperation between the US and the UK meant to persuade the court in accepting the assurances. This was foreshadowed even in the Magistrates’ Court judgement when it was appreciated that refusing extradition should be a rare occurrence, due to “the strong public interest in giving effect to treaty obligations.” However, the reliance on US assurance is not hugely important to the discussion at hand. What prompted these assurances is.

Assange is currently held in what is considered to be the British prison with highest security – HMP Belmarsh. This was preceded by his voluntary detention at the Ecuadorian Embassy, which ended in 2019. It is certain that years of detention have worsened his mental health. There were plentiful psychiatrist assessments of Assange as part of the Magistrates’ Court trial, and they all overlapped on a range of issues: differing levels of depression, possibly autism, psychosis, Asperger’s Syndrome, prominent history of suicide in his family. Both courts recognized Assange to be a sufficiently high risk of suicide to satisfy section 91(3) of the Extradition Act 2003, which bars extradition if one’s mental condition makes such events “oppressive”. Prior to the US putting forward its assurance of providing care, it was clear that the maximum-security measures Assange would be subject to would likely lead to his suicide. Not only because he would find such life to be humiliating and unacceptable, but most importantly because of his demonstrated need for his family and support network. Currently, Assange benefits from the fact that HMP Belmarsh offers him many opportunities to be visited by or call his wife and 2 children, as well as provides him with an on-site psychologist and a Samaritans phoneline which he uses frequently. The US prison he would likely be ultimately placed in, ADX Florence, has an extremely socially isolating system in place. This is warranted by the fact the inmates could be a national risk if they were able to communicate with the outside world freely, as well as arguably by it being a form of punishment. The inmates rarely speak even to each other and communication with family and support system is extremely regulated and so limited as to render it worthless. This would very likely harm Assange’s mental health to the point of seeking suicide, and given his intelligence, it was argued that even the prison oversight could not definitely prevent it. While Assange’s representatives purport that even the measures included in the US assurances will not fully ameliorate the detrimental effects of extradition on his mental health, he is currently destined to be extradited unless it is blocked by the Supreme Court.

When is one sufficiently punished?

Assange’s high risk of suicide has been and will be of central importance at each stage of the case. This should not be surprising, given that this importance has been prescribed by statute since 2003, the Extradition Act. Yet the mere fact mental health even plays the role in extradition issues is applaudable – extraditions are primarily an intergovernmental issue, a negotiation over sovereignty and cooperation governed by treaties. The fact that the individual’s mental health has a decisive role is even more so surprising given that if their crime is serious enough to be grounds for an extradition, people would normally not have much reason to regard them with sympathy.  The Assange case illustrates how current extradition laws balance justice and one’s life – surprisingly in favour of the latter. As explained, it is contentious where Assange’s actions stand morally, but hacking the US military forces is clearly serious enough of a crime to understand the US push behind wanting to put him on trial as a means of asserting the unacceptability of the crime. Arguably, Assange’s punishment commenced years ago – he has spent a decade in detention, during which both his children were born and with which he will probably never be able to have a full relationship, his mental health worsened considerably due to years of stress, and he was subject to overwhelming amounts of negative publicity. The life Assange leads has recently been described by his colleague as “punishment by process”.

As was explored in the judgements, prisoners in maximum-security facilities live a kind of life that is hard and unpleasant to imagine. Yet to object to it is tricky – how we treat society’s criminals is an area that has been developing from the very start of humanity. It is hard to argue with practices that have been in place for generations and that are based on the balancing of justice and one’s human rights – this is a hugely subjective exercise and drawing an objective demarcation of what is excessive punishment is hence impossible. Nonetheless, the recent Assange cases demonstrate careful, extensive, and applaudable judicial consideration of what impact detention can have on one’s mental health – even in a hugely medialized, politicized trial of a controversial man.