20220212 Transcript of Interview with Prof Dr Nils Melzer with Kim Hill at on Saturday Morning Radio New Zealand
The Audio for this transcript is available here
Kim Hill : My next guest has no doubt Wikileaks founder Julian Assange has been the victim of political persecution.
A potted history Nearly 12 years ago Wikileakks published the Afghan War Diary
One of the biggest leaks in US Military History , more was to come.
Sweden investigated Assange for rape.
A secret grand jury in the United States investigated him for espionage.
When both Sweden and Britain refused to guarantee that he would not be extradited to the United States he took refuge in the Ecuadorian Embassy in London for over 6 years.
Professor Dr Nils Melzer is a Swiss academic author practitioner in the field of international law .
He's held a series of roles : He is currently UN. Special Rapporteur on Torture and other cruel , inhuman or degrading treatment or punishment.
In his book The Trial of Julian Assange : A story of persecution Nils Melzer argues that Assange has faced grave and systematic violations due process, defamation, psychological torture.
Ah he was imprisoned - Assange, and still is - he's been there for 3 years now.
I asked Professor Melzer when he first met Julian Assange.
Dr Nils Melzer: I met him when I visited him in prison, in Belmarsh prison on the 9th of May 2019 about 4 weeks after he had been arrested.
I visited him in Prison together with 2 medical doctors specialised in examining torture victims. a psychiatrist and a forensic expert
and so we spent 4 hours with him conducting thorough medical examinations and discussing his conditions of detention.
First of all you had, as it were 'written Assange off as a rapist , as a narcissist , as a hacker and a spy
and refused to get involved. Why did you change your mind ?
Dr Nils Melzer: Yeah, that was actually something that was quite troubling to me.
When his lawyers first contacted me in December 2018
He was still in the Ecuadorian Embassy in London.
And his lawyers asked for me to intervene on his behalf because they claimed his living conditions in the Embassy had become inhumane
In violation of the anti-torture convention.
And Obviously I knew who Julian Assange was but I had never
I didn't know Mr Assange . I had never analysed the case
and I was under the same impression as many others still are today I believe .
those narratives that have been spread in the press for 10 years about him
being suspected of rape being, a coward hiding in the embassy , a self-centred narcissist
and so on and so I had unconsciously absorbed this narrative
so when his lawyers reached out to me as the UN mandated human rights expert I had been so affected by this narrative that I was unable to look at the case and I initially declined to look at it.
It's important to emphasise that I do receive about 10 to 15 requests per day and I can only deal with one so it is normal for me to decide quickly.
But I distinctly remember I had an almost emotional visceral reaction in this case initially and kind of swiped it off my screen
And only when his lawyers came back 3 months later and said that they were afraid he might imminently expelled from the Embassy and sent to the US on espionage charges that they sent along a couple of pieces of evidence including some medical opinions
by Dr Sandra Crosbie who is not an Assange activist , she's a well-known independent medical expert in the U.S.
who had visited Guantanamo as an independent doctor
and had specialised in examining torture victims for all of her career
and she had visited Assange in the Embassy and come to the conclusion that indeed his living conditions violated the convention against torture. And so I thought if this medical expert comes to this conclusion I'd better look at this case.So this initially was a bit of a turning point.
Kim Hill : Kim Hill :You mean his living conditions in the Ecuadorian Embassy ?
Dr Nils Melzer:Yes that's what the medical doctor said so I informed the British Government and the Ecuadorian Government
that I wanted to visit Julian Assange in the Embassy to examine those living conditions and conduct a kind of initial investigation of the case and I asked both governments to freeze the situation and to not expel him for the time being until I could conclude the investigation.
I asked both governments on the 8th of April 2019 to freeze the situation and you know as we know 3 days later on the 11th of April he was expelled from the Embassy without any due process without any possibility to appeal to a Court as necessarily would be the case when you deprive someone of an asylum status and of a citizenship.
I might have even accelerated this process. I don't know that for sure but I fear with my request as a UN expert to come and investigate the case I probably accelerated the process of his expulsion.
Kim Hill :Are you accustomed to governments acceding to your requests ?
In other words were you surprised when they ignored
What authority did you feel you had ?
Dr Nils Melzer:Well I don't have any binding authority. - I can't enforce my , it's all recommendations and requests
But I'm not an NGO activist I'm not an independent journalist
I'm a United Nations expert who has been mandated by states to transmit allegations of torture and ill-treatment to them and to make recommendations to them and the United Nation Human Rights Council calls on states to respond positively to my recommendations and requests and so to co-operate fully with my mandate
so I expected them to at least you know respect this basic request.
There was no urgency , there was no medical crisis , there was no danger.
He had been there for 6 years. He could easily have stayed there for another couple of weeks if the United Nations wants to investigate the situation.
My suspicion is that the British and the Ecuadorian government wanted to create facts on the ground before I could investigate the case
and perhaps become a cog in the wheel slowing down the process.
Kim Hill : Kim Hill :You do point out in your book thought that barely 10% of your interventions receive the full cooperation required by the Human Rights Council and were adequately resolved
so although you dispute the circumstances of Assange's exclusion from the Embassy.
it's not surprising that you were ignored in a way , right ?
Dr Nils Melzer:You are right.
I wasn't aware of how grave the situation was at the time
Because we make so many interventions , we rarely have the time and the resources to follow up.
The reactions of the states involved in the Assange case prompted me to conduct a wider analysis of the effectiveness of my interventions more generally and indeed9 out of 10 requests do not receive adequate response in the sense that we can actually resolve a case , provide protection of a person.
That is a very frustrating role to have , it's more of a window-dressing role.
Where as soon as states have received essential interests in a case ,they will not compromise those interests just to protect human rights. Rather find a way around those provisions.
Kim Hill :The suggestion is then that he was subject to psychological torture in the Embassy . - But he chose to be there. Did he not ?
Dr Nils Melzer:Absolutely. I've used the image before : If you're on a rubber boat in a shark pool, you choose to stay on the rubber boat.
The question is not whether someone seeks asylum voluntarily but what would happen to them if they leave that asylum, that place protection
If they would be exposed to serious violations of human rights then clearly we can no longer speak of someone being voluntarily in that spot. And that certainly is something that was ridiculed in the case of Julian Assange
He was accused of being paranoid. It was said that the Obama Administration never wanted to prosecute him
He was only hiding out in the Embassy because he was afraid to face justice and the Swedish allegations of sexual offences
But the reality really was quite different and the American government was in the background prepared to move against Assange as soon as and there are various indicators that proved that
Kim Hill :And the US's case was that he has through Wikileaks he had of course released classified information endangering US personnel.
Was he charged under the espionage act ? I'm confused about whether they used the Espionage Act because, it's a very difficult legislation to prosecute under.
Dr Nils Melzer:The espionage act has the advantage for the US that is does not not allow any form of defence on the part of the accused
As soon as the accused is proven to have disclosed classified information that is protected by the Espionage Act
then he is basically to be convicted for espionage . He can't raise a defence of public interest for example say that the information I disclosed is evidence for serious misconduct , even war crimes on the part of the authorities ,therefore cannot be protected by secrecy.
That's a defence that cannot be allowed under the Espionage Act.
And I think that's the main reason why they want to accuse him and indict him and prosecute him under that piece of legislation.
Because otherwise Julian Assange would clearly start unpacking the content of the information that he disclosed.
And the fact that no-one has been prosecuted for those serious crimes. and that clearly would make it very difficult for the US to maintain a viable case.
Kim Hill :The United States gave assurances that Julian Assange would be treated humanely if he were to be extradited ( sic - expedited ? )
And that this affected the decision of the UK judge in the end. Who said yes, he can be extradited.
Why would you doubt those assurances ?
Dr Nils Melzer:Well if you read the text of those assurances they actually do not guarantee that we would be humanely treated - that's how they're being interpreted.
But anyone who reads the text sees what the US has done:
They have promised that they will not detain Julian Assange in a very specific SuperMax prison , the Florence Colorado SuperMax prison that had been used in the evidential hearings as an example of particularly harsh conditions
but the United States has dozens of other SuperMax prisons where they can accommodate him.
And they have not been excluded in the assurances.
They also gave an assurance that they would not subject Julian Assange to the most harsh isolation regime
they have in the US which is so-called Special Administrative Measures that are imposed by the the Attorney General, the Federal Government
But they have not excluded any of the other isolation regimes. Now we have to know in the US there are currently 50 people under this specific regime at the same time 80,000 in strict solitary confinement that is very comparable to those conditions but under a different name.
Thirdly, he had been given assurance that he could serve his prison sentence in Australia but , the fine print says that this only applies once all of the legal remedies in the US have been exhausted so if Julian Assange, say he's convicted and sentenced to 175 years prison as is a real possibility in his case if he wants to appeal this up to the Supreme Court this can last up to 15 years or more
And for all of this time would have to be in solitary confinement in the US.
Also this assurance would only apply if Australia agrees to actually accept his transfer to Australia.
And in fact when we unpack those assurances there is really plenty of fine print that deprives him of any real-world value.
Kim Hill : Let me ask you this :
If Assange, via Wikileaks, had released only the kind of information that was contained for example in the Collateral Murder video
which you describe in horrific terms in your book. It was callous . Civilians and journalists were among the dead.
You say : It was a War Crime.
If he had released only those , would the United States have pursued him ?
It was the massive and apparently unredacted leaks surely that got him into trouble.
Diplomatic cables . All that.
Dr Nils Melzer:Well, it's difficult to speculate.
I would say that if he had released only that one video, he would not have been persecuted in the way he has been.
But I also do think that it's not the information that he has disclosed because the claim that anyone has been put in danger by those publications has never been proved by the US
And the US has been asked to prove this in court in the US in the Manning trial and the Assange trail in London
and in both cases has not been able to provide a single example of a person who has been put in danger by those publications.
My point is that what was so dangerous is the methodology of Wikileaks.
It's not the actual content of the actual information that has been disclosed but the mechanism that has been developed that was revolutionary
We've had before, massive leaks , stressing the case of the Pentagon Papers for example
Because there was no internet at the time there was a natural limit to the amount of information you could leak and make available to the public
in that you know accessible form. And through that the Wikileaks platform that allows whistleblowers to remain anonymous
and at the same time leak millions of pages of secret information from all over the world
if that replicates , if that proliferates as a model and you know a few years later you might have 20 thousand Wikileaks all over the world
that would be the end of the business model of governments based on secrecy and impunity.
And I think that's what the US government and their allies are afraid of and that's why they're setting an example in the Assange case.
to deter others to do that . Because the actual real world damage created by those specific publications, even though they were massive and some were unredacted
There has been no evidence that there has been anything more than embarrassment for the US.
Kim Hill :I'm talking to Dr Nils Melzer about his book The Trial of Julian Assange : A story of persecution.
What you say in your book is there can be no justification ever, for exempting any sphere of governance from public knowledge and oversight.
Are you not overstating it surely the government needs secrecy and confidentiality in some cases affecting national security ?
Dr Nils Melzer:It's a fair question.
I think what's important is that we do distinguish between secrecy and confidentiality
I've worked for a government my own government as a Security Policy Advisor
I've worked with armed forces, the ICRC for many years, so there is a space for confidentiality to create a protective space for negotiations and bilateral dialogue that's very important
But confidentiality does not remove the content of those discussions from legal oversight should there be any crime committed behind that veil of secrecy.
Secrecy really does precisely that. It prevents the judiciary from having a real oversight of what governments are doing with the power that has been delegated to them through the democratic process.
And that is inherently dangerous. That is something, I really stand by this : there cannot be any justification for removing any part of governance from public oversight, at least through an intermediary , like the judiciary.
There can be protected space for that, but you can't deprive a democratic society from the possibility of actually ensuring that their government is behaving lawfully.
Kim Hill :But it does surely concern you that this massive dump of information, uncurated and unsupervised and unredacted....
I mean you mention the Pentagon Papers but at least there was some curation by the media
But with Wikileaks, it's beyond any control whatsoever.
Does that concern you ?
Dr Nils Melzer:I think that is also something that has been overstated .
I was under the same impression that that had been the case but when I actually looked into the facts of the case as has been proven in the evidentiary hearings in London in this extradition trial
Um . Wikileaks actually went to great lengths in ensuring there was a proper redaction and risk reduction
so the unredacted publication of the diplomatic cables for example is not something that came from Wikileaks as the first publisher
but it was apparently through a Guardian journalist who published a book and in that book they published a password that they had been given by Wikileaks to work on those unredacted files and through that password its unredacted files that were stored in the internet , encrypted was made available to the public and only after that had happened Wikileaks decided to also publish the same files unredacted
And this something that is not just a claim is has been proven by IT experts in the evidentiary hearings of the London trial
So what I think what is very important in this case is that those claims that have been made , that US soldiers had been endangered by those publications , or that Wikileaks were the ones that insisted on publishing unredacted files, that doesn't hold up when you actually look at the evidence.
The only person who warned the US that those files had become accessible to the public in the unredacted form through the password published by the Guardian Journalists, was Julian Assange. He actually called , and there is an audio file that is available where we can see that he actually called the US Department of State to warn them of those publications to try to cooperate with them to do damage control while the Guardian did not do that.
So I think it's important that we really look behind the smoke screen of the narrative that has been created about Assange
and look at what holds up , what is really proven and my findings are that there really is no proof that this came from Wikileaks.
Kim Hill :Alright so you met Julian Assange for the first time when he was in Belmarsh Prison, he still is I think .
He's been there for 3 years now as his case is still before the courts.
What kind of person did you find ?
Dr Nils Melzer:I did not expect to find torture. I want to make that very clear.
I expected to find someone who was stressed out, you know obviously who had some medical problems that was to be expected after 6 years in the Embassy.
He immediately reminded me of political prisoners I have visited around the world for many years.
Um undoubtedly he's a very intelligent person
But he also reminded me because of his behavioural patterns his body language that really reflected the findings that he had been exposed to enormous psychological pressure he..
I have a catalogue of questions I have to ask every political prisoner once I start my interview :
conditions of detention, their daily routine and so on...
And every time I asked a question he would respond and then he would go off starting a philosophical discussion about the human rights mechanisms of the United Nations or something like that and I always had to kind of pull him back in like a rocket that goes off and I have to pull back in the satellite and try to get him back in
and to focus on our conversation. And I think one thing is that is typical for people who have been isolated that they are so occupied with their own thoughts that they can't process a normal dialogue any more on the other hand it also reflected what has been diagnosed by other doctors as well is that he has a slight form of autism and I believe that is important for people to know that, very often Julian Assange has been described by former collaborators or colleagues as someone who is very occupied with himself and
perhaps even narcissistic. I do believe that a diagnosis of aspergers, a slight form of autism, is probably the more appropriate way to describe him. someone who's extremely focused on his own thoughts
and you have to verbalise what you want to know from him, what you want him to do otherwise he will go off in his own thoughts and not notice what his interlocuter actually would actually like to discuss with him and so ...
Kim Hill : Kim Hill :However what you describe though is a character who is yes very intelligent but also very difficult to deal with.
As people have testified throughout his career really. - Not someone who is necessarily someone who has been subject to psychological abuse.
Dr Nils Melzer:Well , yes, clearly.
I mean, people with autism are not easy to deal with, especially if you don't know that they have this condition
If you expect a normal way of social interaction for someone who has this form of autism, they will very quickly be disappointed or put off by some of his reactions.
So it's important to know that this is a diagnosed condition he does have.
The diagnosis of psychological torture really is a different one that's when we look at even measurable
neurological functions , Cognitive tests that have been made by the doctors
I can't can't disclose all of the medical diagnosis here because of medical confidentiality
It really is about, it's a pattern of symptoms that you would see.
The enormous stress condition which is much greater than you'd have for any normal prisoner that leads to him not being able to sleep , ever.
I mean it's kind of dozing off for half an hour then being awake again and having constant thoughts of suicide.
Enormous stress levels that are followed by psychological breakdowns , very deep depression
When you look at psychological torture you have to look at how the identity or the psyche has been affected by his isolation
the constant pressure he's been under the constant threats he's been under. the separation from positive influences
All of these factors are being used quite deliberately in psychological torture to break down someone's mental resistance and to confuse him.
That's very difficult for someone from the outside to notice
I think if I could explain it to an everyday person - what's known to them as the problem of 'mobbing' . At the workplace , at school , at the military, when you're being excluded from a group and isolated socially and then humiliated, threatened or even abused physically in some cases. That can be extremely serious and can drive people to suicide very quickly and so I think what Julian Assange has experienced is a form of collective mobbing in an excluded , isolated corner where a lot of narratives have been spread about him that he could not defend himself against without exposing himself to serious violations of his human rights. It's a strategy that is used, not only with Julian Assange, very often with dissidents also in authoritarian regimes to deprive them of the public support that they might otherwise gain.
Kim Hill : In your book, you look at the evidence and you lay the evidence out and you find that the case against Julian Assange is sadly lacking
in fact you say that the merciless persecution that this man has been exposed to and the shameless betrayal of justice and human rights
demonstrated by all the governments involved are beyond disgraceful and you also launch a very passionate argument and you have been accused of betraying your neutrality by not only arguing for Julian Assange but for arguing for him in such a hot-blooded way. What do you say to that ?
Dr Nils Melzer:Well , I think my investigation was clearly absolutely impartial and neutral . That's my job , when I get into a case I have to be absolutely impartial and neutral and I investigate it but once I come to the conclusion that someone has been the victim of torture and ill-treatment
then my job is to defend that person and to call on states to respect their obligations so I don't have to be neutral between the torturer and the tortured (the victim ) but I have to be neutral in establishing the facts and that I think I can assert that all of the facts that I have established , the fact-finding process was absolutely impartial .
What has really frustrated me , beyond what ever I would have expected is that in states that would traditionally be the allies of someone like me in promoting the prevention of torture and the respect of the rule of law in the world , western democracies like Sweden and Great Britain , that they have so blatantly violated their obligations and once I had provided the evidence for those violations, they simply
refused to engage in a dialogue with me or to even provide any counter-evidence as to why my interpretation of those facts would be wrong and that really is something that I would not have expected and where I certainly also became genuinely upset as the whole system that we depend on ; the human rights mechanisms in the United Nations , that states subscribe to the rule of law , that once you can provide evidence for violations that there is a form of redress, the judiciary will actually correct those , those violations and that this happened so blatantly , neutralised in this case and overridden by political interests. I found this profoundly shocking. That's also why I was so outspoken in this case because I felt that it was much more that just about Julian Assange and his individual case because I could equally provide evidence for a systemic failure where even as a United Nations expert , I collect evidence and I transmit it to states
and I ask them to explain how their conduct in this case is lawful and compatible with human rights obligations , they were unable and especially unwilling to do so , and I felt that was really extremely disconcerting because it showed that even those states that I could still rely on for the protection of human rights were not as reliable as I would have hoped.
Kim Hill :You say that it's clear that the United States will never succeed in building legally sustainable cases against Assange under any legislation and that his activities related to Wikileaks are fully protected by Human Rights Law and the First Amendment of the United States Constitution but , you say , the letter of the law has been all but irrelevant in this case .
The fate of Julian Assange relies on Joe Biden and his Administration.
Have you received any indication that President Biden may look more leniently upon Assange now ?
Dr Nils Melzer: Unfortunately not. No . I have no indications and not much hope to be honest that this will be the case.
Joe Biden was part of the Obama Administration and is also a representative of the democratic party. Just like Hilary Clinton who claimed that she lost the Presidency due to the DNC leaks so it's very unlikely that the Democratic Party will forgive Assange .
Now I think it's very important here too to stress there is no evidence that Julian Assange has cooperated or that the DNC leaks had actually been hacked by Russian agents . This narrative that has been spread around the DNC leaks is very questionable and is just one more of those narratives that has been used to corner Assange .
Now I'm not trying defend Assange. It's very important. I'm not his lawyer. I'm trying to defend the rule of law.
If states have any evidence by all means, he has to stand trial like anybody else, My problem is that when you look at the indictment
17 of those 18 points refer to receiving and disclosing classified national security information .
Julian Assange is not American, he has no duty of allegiance to the Americans, no contractual obligations, he was not in the US when he disclosed this information . That's what investigative journalists do. . And this information he published was in a large part in the public interest . Though I think when we don't look at the 18th point of this indictment , it's the so-called 'hacking' charge, when you start looking deeply into this , this accusation point . It's not about hacking, it's about whether Julian Assange would have helped or tried to help Chelsea Manning his source in the US Forces to cover her trail or her traces in the computer system by decoding her password hash.
It was not to get access to information or to steal information but to do source protection which as you know as a journalist ,is something that journalists do all the time with their sources. So to me it's really a question of :what exactly are we accusing Julian Assange for ? Even the rape allegations were dropped by the Swedish authorities , not because they expired, not because Julian Assange was not available to the Swedish justice, he was in British hands and could have been extradited to Sweden on accusations that were still valid for another 16 months and the Swedish authorities dropped them because they had not sufficient evidence to even press charges .
So even there , we don't really have any crime that he's ever been indicted for.
That's why I came to the conclusion that the purpose here is not prosecution for any serious crime, it is deter people like you Kim, you know, from doing what he has done.
if I gave you today a USB stick with the Collateral Murder video number 2 , the US would want you to be scared to publish it.
Because you look at Julian Assange and say well 'I don't want to spend the next 10 years in prison' - or the rest of your life perhaps and that is something that I feel is already working - whether he'll be extradited or not I'll ask you would you publish those files today ?
Kim Hill : The chilling effect.
I understand your frustration Dr Melzer .
It's extraordinarily interesting to talk to you . Thank you for the book and thank you for giving me so much time.
Dr Nils Melzer:Thank you very much for having me.
36 minutes 25 seconds.
20220212 Transcript of Interview with Prof Dr Nils Melzer with Kim Hill at 9.05 a.m today on Saturday, Radio New Zealand
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