UPDATE 21. September 2020: ASSANGE HEARING DAY TEN—Fairbanks Testifies Trump Ordered Assange Arrest; US Concedes WikiLeaks Not First to Publish Cables; But Says it Had Widest Reach

UPDATE 16. September 2020: Whistleblower Daniel Ellsberg, credited for helping to bring an end to the Vietnam War, comes to defense of WikiLeaks founder Julian Assange

UPDATE 15. September 2020: Day 6: September 15, 2020 #AssangeCase

UPDATE 14. September: Day 5: September 14, 2020 #AssangeCase

UPDATE 10. September 2020: The Evil Persecution of Julian Assange

UPDATE 10. September 2020: BREAKING: Court suspended - Julian Assange Extradition Hearing in London Paused Over COVID-19 Risk

The Assange Court Report

Assange Court Report September 9: Morning

Assange Court Report September 9: Morning15,000 Iraqi civilian casualties exposed by WikiLeaks.

Iraq War logs released by Wikileaks revealed 15,000 previously unknown civilian deaths, a court has heard.

The evidence, from Professor Paul Rogers of Bradford University, came on the third day in the court hearing that will decide if WikiLeaks founder Julian Assange will be extradited to the United States on charges of espionage and computer hacking.

Giving evidence for the defence Rogers said that the Iraq and Afghan war information not only revealed far higher civilian casualties than had previously been known but also, the witness said, “they exposed the fiction of success, the wars had gone wrong from the start,” adding that even today Wikileaks was an archive which is still widely used by scholars trying to understand both conflicts.

Asked why he thought Assange was being prosecuted by the US government the professor said that “the Trump administration sees Wikileaks as a threat,” and that “this is an administration that sees everything from a political standpoint,” Rogers said. He also reminded the court that President Trump had even suggested the death penalty for Assange if he was found guilty.

Cross-examining for the US government, James Lewis QC challenged Rogers’ claim that the prosecution of Assange was political, suggesting that US law did not allow District Attorneys to make decisions like this on anything other than a legal basis. The witness responded by saying that the political question was why this prosecution is happening now and not 8 years ago when the original acts occurred, stating “there was a political decision to reopen the investigation,” and adding, “it’s a question of timing.” Challenged again by the prosecution QC, Rogers continued, “My view is that there was a strong political motive for this prosecution at this particular time. You can only understand this if you look at the history of the war over the last 20 years.”

Lewis then asked the witness why Trump would choose to prosecute someone who said during the election campaign he “loved Wikileaks,” the professor responded that a big trial of someone seen as a “public enemy,” might be an advantage to the administration.

Court then adjourned for lunch

The trial continues.

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Twice-daily dispatches, photography and video from the Julian Assange extradition hearings in London. Produced by Bridges for Media Freedom

Follow us on Twitter for live updates on the proceedings: @bridges4media

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Assange Court Report September 9: Afternoon

Assange Court Report September 9: Afternoon

A victory for the US government in the Assange case would “criminalise every journalist,” a press freedom expert has told a court.

The testimony came in the third day of the Julian Assange extradition case

After a delay due to technical issues, proceedings resumed at the Julian Assange extradition hearing this afternoon to hear evidence from a defence witness, Trevor Timm, via videolink from the USA.

Timm, the founder of the Freedom of the Press Foundation told the court there have been numerous attempts by the US government to use the Espionage Act against journalists and none have ever been successful. He told the court that in his opinion this prosecution would mean that any journalist in possession of classified information could be arrested.

He stated that if the charges being applied to Assange had been in place in the 1970s, Watergate reporters Woodward and Bernstein could have been thrown in jail, adding that if asking a source for classified information is espionage then the secure “dropbox” systems used by over 80 publications worldwide to encourage whistleblowers to send them information would also be illegally “soliciting classified information,” which is one of the charges against Assange.

Timm told the court “I myself have advocated for leaks in cases where the US secrecy system is hiding abuse, corruption, or illegal acts and no-one has ever suggested I was committing a criminal act.”

Rising to cross-examine, James Lewis QC for the US Government, as he has with every defence witness so far, challenged Timm’s status as an “expert witness,” noting that his organisation had contributed $100,000 to Assange’s legal costs, so he could not be considered to be objective given this conflict of interest.

Lewis then told the court that the prosecution “do not regard Julian Assange as a journalist.” Timm replied that it is not up to the government to decide who is a journalist as “it is the right of everyone,” and that Assange was clearly “engaged in journalistic activities.” The prosecution QC then pointed to a US Justice Department statement that Assange was not being prosecuted for publication of classified material, Timm replied that he made his judgement “based on the facts, not US government press releases.”

After counsel suggested to Timm he hadn’t seen all the evidence in the case, he replied that if there was secret evidence that had not been released he clearly hadn’t.

Asked about the Wikileaks publication of unredacted names of Iraqi and US informants by WikiLeaks, Timm responded that he had never said WikiLeaks had perfect editorial judgement, any more than the Guardian or New York Times have, but if bad judgment is criminal many other publications would be under threat adding, “It shouldn’t be up to the US government to decide if an editorial judgment is criminal.”

Timm continued, “The 1st Amendment is not a balancing act, it also covers unpopular speech, or touches on subject matter that makes some us uncomfortable.” Lewis asked the witness, “Are you a lawyer? What expertise do you have to give legal advice?”

Timms replies that he graduated from law school in 2008 and was called to the New York Bar,” but later decided to run a non-profit organisation instead.

The prosecution barrister quickly moved on.

The witness was then asked why he was ignoring the fact that US prosecutors were bound to act in a non-political way, Timm replied that Trump’s hostility to journalists is well known and that a number of US prosecutors had refused to get involved in this case due to the 1st amendment issues involved.

There was then a heated discussion when the defence rose to say that Lewis has reached his time limit of one hour.

He vehemently objected to this and argued with both the defence and the judge, until judge Baraitser said he could have more time. The prosecutor then said that he “had finished anyway,” and ended his cross-examination.

The trial continues.

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UPDATES:

ASSANGE HEARING DAY TEN—Fairbanks Testifies Trump Ordered Assange Arrest; US Concedes WikiLeaks Not First to Publish Cables; But Says it Had Widest Reach

Consortium News is virtually “inside” the courtroom at Old Bailey, viewing the proceedings by video-link and we filed this report on Day Ten of Julian Assange’s resumed extradition hearing.

Old Bailey (Wikimedia Commons)

Fairbanks Testifies Trump Ordered Assange Arrest

By Joe Lauria - 21. 

11:48 am EDT:  Journalist Cassandra Fairbanks testified that President Donald Trump had personally ordered Julian Assange’s arrest from the Ecuadorian embassy in London in April 2019.

Cassandra Fairbanks (Twitter)

Fairbanks said she learned in October 2018 directly from Arthur Schwartz, a Trump backer and member of the president’s inner circle, that the U.S. would have Assange taken from the Ecuadorian embassy; that he would only be charged with the Chelsea Manning leaks and not for the Vault 7 CIA or DNC email releases; that the U.S. would again go after Manning to testify against Assange; that Richard Grenell, then U.S. ambassador to Germany and later director of national intelligence, had worked out a deal with Ecuador to hand Assange over, that the order to get Assange had come directly from Trump and that the U.S. would not seek the death penalty to make extradition possible.

All of these things came true, Fairbanks’ testified. Armed with this information she traveled to London from Washington and met with Assange at the embassy where she revealed these details to him. 

Upon return she says she was contacted by Schwartz who was furious because he learned of her informing Assange, evidently through surveillance at the embassy.  When she tweeted about this Grenell contacted her employer at The Gateway Pundit and tried to have her fired. A panicked Schwartz informed her that there was an investigation into who leaked this information to her.  Fairbanks has posted the audio recording of Schwartz’s call in which he fears going to jail. 

She testified that Schwartz said Assange and everyone else at WikiLeaks should get “lethal injections.”

Her testimony was read by defense lawyer Edward Fitzgerald after the government objected. But defense argued that hearsay rules do not apply to political testimony.  Her testimony, especially of Trump’s role, bolstered the defense argument that Assange’s prosecution is political and therefore violates the U.S.-UK extradition treaty.

It was probably best for the prosecution to forgo cross examination, say nothing and just let Fairbanks’ testimony be read in court.  She stated she was a WikiLeaks supporter so the prosecutor couldn’t go after her for hiding bias.  It would have been difficult to pick apart her testimony, especially as she has recordings. And the prosecution would not have wanted to go near surveillance at the embassy nor that Trump ordered the arrest. 

9:38 am EDT: Prosecution argued it only learned in the morning of the next scheduled defense witness, journalist Andy Worthington, and did not have sufficient to time to prepare cross examination. Extraordinary, as the prosecution has repeatedly been told by defense witnesses that they are being sent a bundle of prosecution documents sometimes only hours before they were to testify, giving them no time to prepare for cross examination.

It appears Worthington will not appear as a witness and that journalist Cassandra Fairbanks may be up next.

US Concedes WikiLeaks Was Not First
to Publish Unredacted Diplomatic Cables;
But Says it Had Widest Reach

8:24 am EDT: The prosecution Monday morning was trying to establish that even if WikiLeaks was not the first to publish the unredacted State Department cables containing informants’ names (even though only Julian Assange is the only one being prosecuted for it), it made WikiLeaks more liable than others who published first because WikiLeaks has a larger reach on the internet and included a search engine with the files, unlike those who published the cables before it. 

It is a curious argument from the government in that until this point it tried to establish that WikiLeaks was first, or the only one, to publish. The indictment against Assange makes no mention of the chronology of publishing, which is crucial because as the defense is trying to establish, WikiLeaks would not have published the unredacted archive at all if others had not done so first. It could amount to selective prosecution.

The turn in prosecution argument is similar to it dropping its contention that Assange is not a journalist by making it clear that the U.S. is not precluded from charging a member of the media for disclosing national defense information. 

Grothoff (YouTube)

7:20 am EDT: Defense witness Christian Grothoff, a professor of computer science at Bern University, Switzerland has laid out the chronology of the publication of the unredacted State Dept. cables that are at the heart of this case.

He traces it back to the publication of the password in the Feb. 2011 book by David Leigh and Luke Harding. Grothoff then explained that the German publication Freitag wrote on Aug. 25, 2011 about the password being available in the book, which led to the cables being published on Aug. 31 on a torrent site, followed by their publication by Cryptome.org on Sept. 1.

WikiLeaks then published it on Sept. 2.  Grothoff testified that WikiLeaks was a “responsible publisher” that tried to protect the unredacted cables.  Defense attorney Mark Summers on direct asked Grothoff if the files were still available on Cryptome.

Grothoff: “Yes I accessed them last week.”

Summers: “Was Cryptome ever prosecuted for this?”

Grothoff: “The defense never provided me with information, no.”   

On cross examination, prosecutor Joel Smith attempted, as the prosecution has with virtually every defense witness, to undermine Grothoff’s impartiality.

Smith: “Can you think of anything that shows you are not impartial?”

Grothoff: “I don’t know what you are thinking about. Obviously we know that Mr, Assange did publish information about war crimes by governments, which makes him a sympathetic character. But that does not make me impartial.”

Smith then said that Grothoff had signed an open letter to President Donald Trump in 2017 asking that he end the grand jury and drop all charges against Assange because of the threat to press freedom it represented.  Grothoff said he didn’t remember signing the letter.

Grothoff:  “I have a view that this prosecution is unfair but I only  tried to look if there was a case for the prosecution and I did not find it.”

Smith: “You are biased, you are partial.”

Grothoff: “No you are confusing actions WikiLeaks took to hide these cables. So when you say WikiLeaks published these cable first, you are wrong and did not do your homework. It is unfair to accuse Mr. Assange of publishing those cables.”

Smith: “When you first signed that letter did you have knowledge of the release of the unredacted cables?”

Grothoff: “Yes. Even at that time it seemed clear to me the primary publisher was not WikiLeaks because they were known for being responsible. So I had knowledge it lost control of the cables.”  On cross examination, Mark Summers for the defense, said that among other signers of the letter to Trump were former U.S. military and intelligence figures, judges and members of the German Bundestag.

The prosecution brought up an open vote that WikiLeaks conducted on Twitter and Facebook on Sept. 1, 2011, after the files had been published on Kryptome. The vote was on whether or not WikiLeaks should also now release the cables.  Smith told the court that the “global vote” was 100 to 1 to publish.

What was not raised by the defense on re-direct examination is that the main reason given during the debate before the vote was that governments would be most likely to find the files on Cryptome, or decrypt the files themselves from the password that Leigh had made available, and that WikiLeaks wanted to use its wider reach to alert informants whose names had been revealed to seek safety. 

Grothoff had testified on direct examination that Assange had been extremely reluctant to give Leigh the pass code to the entire unredacted archives, but eventually gave in. On redirect, Summers read a passage from Leigh’s book in which The Guardian journalist pressured Assange to give him the entire cache. Assange had offered to give Leigh 50 percent of the archive. Leigh and Harding wrote:

“Leigh refused. All or nothing, he said. ‘What happens if you end up in an orange jump-suit en route to Guantánamo before you can release the full files?’ In return he would give Assange a promise to keep the cables secure, and not to publish them until the time came.”

Grothoff said he saw mention of Guantanamo as part of the pressure that WikiLeaks had been put under.  At the time, on Sept. 1 2011, The Guardian issued a statement:

“It’s nonsense to suggest the Guardian’s WikiLeaks book has compromised security in any way.

“Our book about WikiLeaks was published last February. It contained a password, but no details of the location of the files, and we were told it was a temporary password which would expire and be deleted in a matter of hours.

“It was a meaningless piece of information to anyone except the person(s) who created the database.

“No concerns were expressed when the book was published and if anyone at WikiLeaks had thought this compromised security they have had seven months to remove the files. That they didn’t do so clearly shows the problem was not caused by the Guardian’s book.”

It is possible this was all a screw up. It’s also possible that no one at WikiLeaks saw the book until the Freitag article.

The prosecution appeared to be trying to muddy the waters by bringing up 133,000 diplomatic files that WikiLeaks published in August 2011, before the released of the unredacted cables. These files came from the U.S. missions in numerous countries including Iran, China, Russia, Israel, Yemen, Syria, Australia, Bahrain and Zimbabwe. Grothoff testified that he analyzed all of these files and found that none were classified.

The government alleges the names of some informants appeared in some of these documents. German journalist John Goetz, who testified for the defense last Wednesday, said that while some of these documents were marked “Strictly Protect,” it did not men informants’ names were present.

5:01 am EDT:  Court is in session. First defense witness is Christian Grothoff, a professor of computer science at Bern University, Switzerland. Network security and cryptography are his specialities. He was asked to investigate of the unredacted chache of diplomatic  cables in September 2011.

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Whistleblower Daniel Ellsberg, credited for helping to bring an end to the Vietnam War, comes to defense of WikiLeaks founder Julian Assange

BY PAN PYLAS - 16. September 2020

Vietnam-era whistleblower Daniel Ellsberg speaks during a news conference at the National Press Club in Washington.

Vietnam-era whistleblower Daniel Ellsberg speaks during a news conference at the National (Susan Walsh/AP)

LONDON — Daniel Ellsberg, one of the most famous whistleblowers in living memory, came to the defense of WikiLeaks founder Julian Assange on Wednesday in his legal fight to avoid extradition to the United States from Britain, arguing that the pair had “very comparable political opinions.”

The 89-year-old, who is widely credited for helping to bring about an end to the Vietnam War through his leaking of the so-called Pentagon Papers in 1971, told London’s Central Criminal Court via a video link that there are echoes of his experience in the way Assange is being treated by the U.S. government.

He told the court that he concluded after his several meetings with Assange over the past decade that they shared the same aspirations, to shine a light on the “great lack of transparency” in decision-making circles in the U.S., especially when it comes to matters of war.

The cables relating to the wars in Afghanistan and Iraq that WikiLeaks published had shown, he said, that torture had become “normalized.”

“The American public needed urgently to know what was being done routinely in their name, and there was no other way for them to learn it than by unauthorized disclosure,” he said in his written testimony.

“I observe the closest of similarities to the position I faced, where the exposure of illegality and criminal acts institutionally and by individuals was intended to be crushed by the administration carrying out those illegalities,” he added.

U.S. prosecutors have indicted the 49-year-old Assange on 17 espionage charges, and one of computer misuse, over WikiLeaks' publication of secret U.S. military documents a decade ago, largely around the wars in Afghanistan and Iraq a decade ago. The dump, similarly coordinated at various stages with some of the world’s leading newspapers, was arguably the biggest single leak since the Pentagon Papers four decades before. The charges carry a maximum sentence of 175 years in prison.

Like Assange, Ellsberg faced the prospect of decades, at least, in prison.

After leaking over 7,000 pages of classified documents to the press, including The New York Times and The Washington Post, Ellsberg was put on trial on 12 charges in connection with violations of the Espionage Act. They were punishable by up to 115 years in prison, but the charges were dismissed in 1973 because of government misconduct against him.

Ellsberg, who had worked at both the State Department and the Pentagon, said Assange won’t be able to provide a justification for his actions if he were to be extradited to the U.S. in the same way that he was denied the chance to raise a public interest defense for his leaking of the Pentagon Papers.

He said that Assange “cannot get a fair trial for what he has done under these charges in the United States.”

Pressed repeatedly by James Lewis, a lawyer acting on behalf of the U.S. government, about the consequences of the leaking of unredacted documents, Ellsberg said there was “zero evidence” that the actions of Assange and WikiLeaks had led to anyone being harmed. He also said that Assange took great care not to willfully expose anyone to harm.

While noting the “understandable anxiety” of those revealed to have helped out the U.S., he said any threats had to be “put into context.” He told the court that the wars in Afghanistan and Iraq had made refugees of millions as well as to the death of over 1 million people.

Ellsberg said it is “extremely cynical” for the U.S. government to feign concerns when it had spent much of the past 19 years showing “contempt.”

Ellsberg’s testimony was interrupted by an outburst from Assange in the dock before the Australian was silenced by the judge, Vanessa Baraitser.

Assange’s lawyers say the prosecution is politically motivated and that he won’t receive a fair trial in the United States. They also argue that the conditions he would face in prison would breach his human rights.

Assange has been in a British prison since he was ejected from his refuge at the Ecuadorian Embassy in London in April 2019.

The extradition hearing is due to last until early October.

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Day 6: September 15, 2020 #AssangeCase

September 15, 2020

Eric Lewis: Under Trump, Justice Dept. is Prosecutorial Hand of the PresidentStates

Attorney Eric Lewis

Continuing testimony that began yesterday, U.S. lawyer Eric Lewis explained that under President Trump, the Department of Justice is not an independent agency but rather one that takes its direction from the top down. Lewis said that he isn’t questioning the integrity of lower-level prosecutors, but they are taking direction from their Attorney General.

Lewis cited comments from Jeff Sessions, who was US Attorney General at the time Assange’s indictment was brought, in which he called Assange’s arrest a “priority.” The top-down approach continued under William Barr, Lewis said, citing more than a thousand former federal prosecutors who co-signed a statement condemning President Trump’s “obstruction of justice.”

“Jeff Sessions pressured the Eastern District of Virginia to bring the case. I’m not saying individual prosecutors are acting in bad faith, I’m saying the department is highly politicized and many Americans would agree with that sentiment.”

The comments came amid cross-examination, as U.S. prosecutors are attempting to undermine the dense claim that the prosecution of Assange is politically motivated. Lewis pointed again to the fact that the Obama administration made a clear decision not to prosecute Assange in 2013. The facts of the case are from 2010 and 2011 but the U.S. didn’t indict until 2018; the only difference between then and now is who is in the White House.

“This case was dormant when the Trump administration began,” Lewis said. “The evidence hasn’t changed. Witnesses haven’t changed. The First Amendment hasn’t changed.”

175 years in prison

The prosecution also attempted to cast doubt on the claim that Assange would face up to 175 years in prison if he is extradited to the United States. But Lewis said there is significant reason to believe that a judge would sentence him extremely aggressively. Assange would be tried in the Eastern District of Virginia under District Judge Claude M Hilton, who Lewis said is known as a “tough sentencer” and who threw Chelsea Manning in prison for contempt of court when she refused to testify in a WikiLeaks grand jury. Furthermore, U.S. officials have described WikiLeaks’ releases as the biggest leak publications in history and has attempted to argue that U.S. adversaries benefited from the releases. Upon Chelsea Manning’s conviction of 10 counts under the Espionage Act (whereas Assange faces 17), Lewis noted, the government asked for a 60-year sentence, and she was sentenced to 35.

The prosecution attempted to invoke the Espionage Act cases of whistleblowers Terry Albury, Reality Winner, and Jeffrey Sterling as evidence that these cases often result in shorter sentences. But Sterling himself tweeted in response,

In February, Sterling wrote, “Reject Using My Unjust Conviction Against Julian Assange.”

Lewis noted that the U.S. Dept of Justice has made several adjustments to the second superseding indictment that it brought in June 2020. Despite adding no new charges, the indictment adds new language that, Lewis explained, increases the likelihood of a higher sentence. These added factors include other co-conspirators the government alleged were under Assange’s direction, reference to a ‘Teenager’ among those (this refers to Siggi Thordarson, Icelandic informant), “special skills” (here could refer to Assange’s alleged computer capabilities), and the fact that the State Department cables allegedly included names of U.S. government employees (at embassies around the world). These all lead Lewis to believe the newest superseding indictment substantially increases a potential sentence for Assange.

Abusive conditions await Assange

Finally, Lewis testified to the conditions Assange would be likely to face in a U.S. prison, both pre- and post-trial. Pre-trial, Assange would be held at the Alexandria Detention Center, and Lewis believes he would be held under both SAMs, which gags a defendant and permits monitoring of attorney-client communications, and the Classified Information Procedures Act (CIPA), which curtails the defendant’s ability to review classified documents in his/her case.

It’s also highly likely Assange would be held in administrative segregation (‘ad-seg), due to his notoriety and mental health issues, and the combination of ad-seg and SAMs would be tantamount to solitary confinement and extremely dangerous to Assange’s psychological health. Lewis testified that two-thirds of all incidents of suicide and self-harm among inmates take place in segregated housing.

Tom Durkin: Assange would not get a fair trial in the United States

Thomas A Durkin (JTF Guantanamo file photo by Petty Officer 2nd Class Nat Moger)

Next, the defense called Thomas Durkin, a criminal defense attorney from Chicago, to discuss how a trial against Assange would play out in the U.S. if he were extradited.

“I don’t believe he would be able to get what I would consider to be a fair trial in the U.S.”, Durkin said, because the case is the result of a highly politicized prosecution, CIPA restrictions would severely hamper the defense, and there would be huge pressure to accept a plea deal simply to avoid an exorbitant prison sentence.

Durkin corroborated what several witnesses have said thus far, that the Obama administration’s decision not to prosecute contrasted with the Trump administration’s decision to prosecute several years later, without new evidence, is clear evidence that the case is political.

The CIPA restrictions, he said, would mean Assange would not be able to view classified documents in the case, contrary to what U.S. assistant attorney Gordon Kromberg argued in submissions for the prosecution.

As for the pressure for a plea deal, Durkin testified that there is a built-in incentive to take a plea, in that a “timely guilty plea” automatically takes the sentence down a level within sentencing guidelines, which Durkin referred to as “draconian.” This is commonly referred to as a “trial tax,” meaning defendants are punished for taking their own cases to trial rather than pleading ahead of time.

Durkin said that the prosecution appears to argue that Assange is more liable than Chelsea Manning, indicating the government would seek a longer sentence than the 60 years it sought for Manning.

Furthermore, Durkin testified that any plea deal would require “full cooperation,” meaning the government would very likely require Assange to reveal WikiLeaks’ sources in order to obtain a plea agreement.

Tomorrow, former Der Spiegel journalist John Goetz and Pentagon Papers whistleblower Daniel Ellsberg are scheduled to testify.

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Day 5: September 14, 2020 #AssangeCase

September 14, 2020

v

 

 

  • See previous daily reports here and a video recap of last week’s proceedings here
  • See an overview of USA v. Julian Assange here
  • See a thread of live-tweets of today’s hearing here

Eric Lewis: Julian Assange shouldn’t be extradited, would face solitary confinement in the United States

 

Attorney Eric Lewis

Paused last week due to a COVID19 scare, Julian Assange’s extradition hearing resumed today with witness testimony from Eric Lewis, chairman of the board of Reprieve and a lawyer who “represents Guantanamo and Afghan detainees in litigation, seeking redress and accountability for torture and religious abuse while in US custody.”

Lewis confirmed that before being asked to provide expert testimony on this case, he opined in the press that he believes Assange shouldn’t be extradited or prosecuted, and while he handled the facts objectively in providing his witness statement, those are still his views today. In May 2019, Lewis wrote, “As an American lawyer, I don’t want to see Julian Assange extradited to my country.”

While Lewis’ testimony largely deals with his experience defending clients in the US federal justice system and the conditions they face, he first spoke about the significance of the Trump administration deciding to prosecute Assange in contrast to the Obama administration’s decision not to. Echoing previous witnesses, Lewis singled out comments from then-CIA director Mike Pompeo and then-US Attorney General Jeff Sessions in April 2017 evincing particular zeal in prosecuting Assange. Pompeo castigated WikiLeaks and Assange and declared he would be allowed no First Amendment rights, while Sessions announced that Assange’s arrest was a “priority” of his. Lewis noted that this meant Sessions was specifically directing federal prosecutors to take another look at a case in which the Obama Administration had explicitly decided not to bring charges.

The fact that WikiLeaks documents would be “essential” in war crimes prosecutions in the International Criminal Court (ICC), according to Lewis, may also play a factor here, as President Trump, former Sec. of Defense John Bolton, and Sec. of State Mike Pompeo have all criticized the ICC. Furthermore, President Trump has issued an ‘Executive Order on Blocking Property Of Certain Persons Associated With The International Criminal Court.’

Lewis also remarked on the superseding indictment against Assange, adding 17 counts to the previous single charge. Lewis said these charges under the Espionage Act could easily have been all charged together, but separating them out in this way indicates a desire to maximize Assange’s potential jail time, as each new count carries up to 10 years in prison.

Special Administrative Measures

Lewis then spoke about the conditions Assange would be likely to endure, including Special Administrative Measures (SAMs) and solitary confinement.

The Center for Constitutional Rights has documented the effects of SAMs in a 2017 report, “The Darkest Corner: Special Administrative Measures and Extreme Isolation in the Federal Bureau of Prisons”:

“SAMs are the darkest corner of the U.S. federal prison system, combining the brutality and isolation of maximum security units with additional restrictions that deny individuals almost any connection to the human world. They prohibit prisoners who live under them from contact or communication with all but a handful of approved individuals, and impose a second gag on even those few individuals. The net effect is to shield this form of torture in our prisons from any real public scrutiny.”

The CCR has also written ‘Solitary Confinement: Torture in U.S. Prisons’ — the report provides background context for Lewis’ testimony on solitary, which the Bureau of Prisons conceals by referring to it as Administrative Segregation.

Lewis and the prosecution engaged in a long back-and-forth about how SAMs and solitary are applied, what conditions are required, whether they are ‘arbitrary’ and whether they violate the European Convention on Human Rights. Lewis disagrees with the prosecution particularly on whether the US Bureau of Prisons fairly applies SAMs and solitary, finding it extremely likely they’d be applied here due to the likely invocation of “national security interests.” He explained the “unique difficulties” presented under both SAMs and solitary in attorney-client defense preparation, particularly in a case of this magnitude.

Technical issues with Lewis’ videolink before the lunch break and continued afterward. The court decided to adjourn for the day to attempt to resolve them, so court will resume with Lewis’ testimony tomorrow at 10am London time.

Source: https://assangedefense.org

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UPDATE 10. September 2020:

Julian Assange Extradition Hearing in London Paused Over COVID-19 Risk

By Associated Press - 10. September 2020

Julian Assange - Ecuador on May 19, 2017 = Getty-H 2019

Jack Taylor/Getty Images

Proceedings were adjourned until Monday while a lawyer representing the U.S. government is tested for the virus.

The London hearing on WikiLeaks founder Julian Assange's extradition from Britain to the United States was suspended Thursday because one of the lawyers may have been exposed to the coronavirus.

District Judge Vanessa Baraitser ordered the proceedings adjourned until Monday while a lawyer representing the U.S. government is tested for the virus.

Image

 

Assange is fighting American prosecutors’ attempt to get the British government to send him to the U.S. to stand trial on spying charges.U.S. prosecutors have indicted the 49-year-old Australian on 18 espionage and computer misuse charges over WikiLeaks’ publication of secret U.S. military documents a decade ago. The charges carry a maximum sentence of 175 years in prison.

Assange’s lawyers say the prosecution is a politically motivated abuse of power that will stifle press freedom and put journalists around the world at risk.

The hearing started Monday at London’s Old Bailey criminal court and is scheduled to last about a month.

The judge told Julian Assange on Tuesday that the hearing would proceed without him if he continues to speak from the dock and interrupt witnesses. "You will hear things, no doubt many things, you disagree with during these proceedings," she said. The warning came after Assange interrupted a defense witness giving evidence.

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Assange Court Report September 10: Morning

Assange Court Report September 10: Morning

Julian Assange hearing halted due to COVID-19 scare.

The extradition hearing of Wikileaks founder Julian Assange was adjourned today due to a member of one of the legal teams being possibly exposed to the COVID-19 virus.

The presiding judge, Vanessa Baraitser, told a half-empty court that the person concerned would be tested today and agreed with submissions, from both the defence and the prosecution, that proceedings should be halted until Monday when the results of the test will be known.

If the test is positive, members of the legal team concerned will have to self-isolate for 14 days. With neither side happy to conduct the case via video link, this could lead to a major delay in the case, which has already been delayed for months due to the virus outbreak.

Julian Assange remains on remand in London’s Belmarsh prison

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The Evil Persecution of Julian Assange

By  - 10. 

The Julian Assange extradition farce is now proceeding apace in Great Britain, where the English poodles are going through the motions before they comply with U.S. dictates to transfer Assange to trial in the United States.

The charge? Some supposed violation of some ridiculous espionage statute dating back to World War I, the foreign war in which tens of thousands of U.S. soldiers were sacrificed by the U.S. government for absolutely nothing. You would think interventionists would hang their heads in shame over a war that sacrificed U.S. soldiers for nothing. Instead, to get Assange they are relying on a ludicrous law enacted during that war for no other reason than to suppress dissent against the war.

Assange’s real crime? Disclosing the truth about evil and immoral actions of the U.S. national-security establishment — i.e., the Pentagon and the CIA. That’s why they have been going after him with a vengeance for the past 10 years. That’s why the British have been treating him as a common convicted criminal as a prelude to the farce of the extradition hearing.

With the British government’s horrific mistreatment of Assange, one can easily understand the reason for the periodic resistance to British tyranny on the part of the British people over the centuries, stretching all the way back to Magna Carta in 1215. Keep in mind that the anti-tyranny principles found in the Bill of Rights were carved out by British citizens in resistance to the tyranny of their own government, a tyranny that is, once again, being reflected in the horrific abuse of Julian Assange.

One of the most ridiculous arguments that the Pentagon and the CIA, through their agents in the Justice Department and at the extradition hearing, is that Wikileaks doesn’t count as a real journalistic outlet and, therefore, Assange isn’t entitled to the protections of the First Amendment.

What difference does that make? Under basic principles of freedom, everyone in the world, journalist or not, has the right to disclose the evil and immoral actions of governments, including their own government. The fact that so many mainstream journalists have bought into this ridiculous argument of the Pentagon and the CIA reflects how deeply the national-security mindset has pervaded America.

There is another reason why the U.S. national-security establishment is targeting Assange for retribution. They want to send a message to everyone else, a message that says: Don’t even think about disclosing our evil and immoral actions because this is what will happen to you.

As I have written in the past, the worst mistake the American people have ever made was in permitting the federal government to be converted from a limited-government republic to a national-security state. A national-security state is a totalitarian form of governmental structure. North Korea, Egypt, Saudi Arabia, Russia, Cuba, and China are national-security states. And there is no doubt that they treat people who disclose their dark-side and sordid secrets just like the U.S. government and its British poodle are treating Assange.

Assange, like Edward Snowden, is a hero. The best way for Americans to honor him — and do themselves a favor in the process — would be to dismantle our national-security state form of government and restore our founding governmental system of a limited-government republic to our land.

Author:

Jacob Hornberger

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.

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Your Man in the Public Gallery – Assange Hearing Day 8 194

The great question after yesterday’s hearing was whether prosecution counsel James Lewis QC would continue to charge at defence witnesses like a deranged berserker (spoiler – he would), and more importantly, why?

QC’s representing governments usually seek to radiate calm control, and treat defence arguments as almost beneath their notice, certainly as no conceivable threat to the majestic thinking of the state. Lewis instead resembled a starving terrier kept away from a prime sausage by a steel fence whose manufacture and appearance was far beyond his comprehension.

Perhaps he has toothache.

PROFESSOR PAUL ROGERS

The first defence witness this morning was Professor Paul Rogers, Emeritus Professor of Peace Studies at the University of Bradford. He has written 9 books on the War on Terror, and has been for 15 years responsible for MOD contracts on training of armed forces in law and ethics of conflict. Rogers appeared by videolink from Bradford.

Prof Rogers’ full witness statement is here.

Edward Fitzgerald QC asked Prof Rogers whether Julian Assange’s views are political (this goes to article 4 in the UK/US extradition treaty against political extradition). Prof Rogers replied that “Assange is very clearly a person of strong political opinions.”

Fitzgerald then asked Prof Rogers to expound on the significance of the revelations from Chelsea Manning on Afghanistan. Prof Rogers responded that in 2001 there had been a very strong commitment in the United States to going to war in Afghanistan and Iraq. Easy initial military victories led to a feeling the nation had “got back on track”. George W Bush’s first state of the union address had the atmosphere of a victory rally. But Wikileaks’ revelations in the leaked war logs reinforced the view of some analysts that this was not a true picture, that the war in Afghanistan had gone wrong from the start. It contradicted the government line that Afghanistan was a success. Similarly the Wikileaks evidence published in 2011 had confirmed very strongly that the Iraq War had gone badly wrong, when the US official narrative had been one of success.

Wikileaks had for example proven from the war logs that there were a minimum of 15,000 more civilian deaths than had been reckoned by Iraq Body Count. These Wikileaks exposures of the failures of these wars had contributed in large part to a much greater subsequent reluctance of western powers to go to war at an early stage.

Fitzgerald said that para 8 of Rogers’ report suggests that Assange was motivated by his political views and referenced his speech to the United Nations. Was his intention to influence political actions by the USA?

Rogers replied yes. Assange had stated that he was not against the USA and there were good people in the USA who held differing views. He plainly hoped to influence US policy. Rogers also referenced the statement by Mairead Maguire in nominating Julian for the Nobel Peace Prize:

Julian Assange and his colleagues in Wikileaks have shown on numerous occasions that they are one of the last outlets of true democracy and their work for our freedom and speech. Their work for true peace by making public our governments’ actions at home and abroad has enlightened us to their atrocities carried out in the name of so-called democracy around the world.

Rogers stated that Assange had a clear and coherent political philosophy. He had set it out in particular in the campaign of the Wikileaks Party for a Senate seat in Australia. It was based on human rights and a belief in transparency and accountability of organisations. It was essentially libertarian in nature. It embraced not just government transparency, but also transparency in corporations, trade unions and NGOs. It amounted to a very clear political philosophy. Assange adopted a clear political stance that did not align with conventional party politics but incorporated coherent beliefs that had attracted growing support in recent years.

Fitzgerald asked how this related to the Trump administration. Rogers said that Trump was a threat to Wikileaks because he comes from a position of quite extreme hostility to transparency and accountability in his administration. Fitzgerald suggested the incoming Trump administration had demonstrated this hostility to Assange and desire to prosecute. Rogers replied that yes, the hostility had been evidenced in a series of statements right across the senior members of the Trump administration. It was motivated by Trump’s characterisation of any adverse information as “fake news”.

Fitzgerald asked whether the motivation for the current prosecution was criminal or political? Rogers replied “the latter”. This was a part of the atypical behaviour of the Trump administration; it prosecutes on political motivation. They see openness as a particular threat to this administration. This also related to Trump’s obsessive dislike of his predecessor. His administration would prosecute Assange precisely because Obama did not prosecute Assange. Also the incoming Trump administration had been extremely annoyed by the commutation of Chelsea Manning’s sentence, a decision they had no power to revoke. For that the prosecution of Assange could be vicarious revenge.

Several senior administration members had advocated extremely long jail sentences for Assange and some had even mooted the death penalty, although Rogers realised that was technically impossible through this process.

Fitzgerald asked whether Assange’s political opinions were of a type protected by the Refugee Convention. Rogers replied yes. Persecution for political opinion is a solid reason to ask for refugee status. Assange’s actions are motivated by his political stance. Finally Fitzgerald then asked whether Rogers saw political significance in the fact that Assange was not prosecuted under Obama. Rogers replied yes, he did. This case is plainly affected by fundamental political motivation emanating from Trump himself.

James Lewis QC then rose to cross-examine for the prosecution. His first question was “what is a political opinion?” Rogers replied that a political opinion takes a particular stance on the political process and does so openly. It relates to the governance of communities, from nations down to smaller units.

Lewis suggested that Assange’s views encompassed the governance of corporations, NGOs and trade unions. They could not therefore be considered as “political opinion”. Rogers replied that the province of the political in the last fifty years or so now includes much more beyond the strict governmental process. Assange particularly discusses relationships between government and corporations and the latter’s influence on government and society as part of a wider ruling establishment.

Lewis then asked “is simply being a journalist a person who expresses political opinions?” Rogers replied not necessarily; there were different kinds of journalist. Lewis than asked “So just being a journalist or publisher does not necessarily mean that you have political opinions, does it?” Rogers replied “not necessarily, but usually.” Lewis then suggested that the expression of editorial opinion was what constituted a political view in a journalist. Rogers replied that was one way, but there were others. Selection of material to publish could manifest a political view.

Lewis then rattled off a series of questions. Is transparency a political opinion? Does Assange hold the view that Governments may never hold secrets? Should that transparency enable putting individuals at risk? There were more.

Rogers replied that these questions did not permit of binary answers.

Lewis then took Rogers to Assange’s speech to the Stop the War Coalition, where he stated that the invasion of Poland at the start of the Second World War was the result of carefully concocted lies. Did Prof Rogers agree with that view? What political opinion did that view represent? Rogers replied it represented a strong political opinion and a particular view on the origin of war. Lewis then quoted another alleged comment of Assange, “Journalists are war criminals” and asked what political opinion that represented. Rogers replied that it represented a suspicion of certain journalistic practices.

Rogers said that he had never said he supported or identified with Assange’s views. He strongly disagreed with some. But that they were coherent political views there was no doubt.

Lewis then read out a lengthy quote by Assange to the effect that strongly anti-transparency governments will always result in more leaks, followed by more restrictions and this would set up a cycle. Lewis asked Rogers what political view this could be said to represent. Rogers replied it was an interesting analysis of the working of highly autocratic systems. Their concern with secrecy leads to increased leaks which decrease their security. He was not sure if it was explicit, but he believed Assange may be positing this as a new development made possible by the internet. Assange’s thesis was that autocratic regimes harbour the seeds of their own destruction. It was not a traditional view held by political scientists but it was worth consideration.

Lewis now changed tack. He stated that Prof Rogers was appearing as a “so-called expert witness” under a continuing obligation to be unbiased. He had a duty to consider all supporting evidence. US Assistant Attorney Gordon Kromberg had submitted an affidavit explicitly denying there was any political motivation for the prosecution, stating that it is evidence based. Why did Prof Rogers not mention the Kromberg statement in his report? An unbiased expert witness would take into account Kromberg’s statement.

Rogers replied that he spoke from his expertise as a political scientist, not a lawyer. He accepted that Kromberg had made his statement but believed a wider view to be more important.

Lewis stated that Kromberg’s first affidavit stated that “based on the available evidence and applicable law a grand jury had approved the charges.” Why had Rogers not mentioned the grand jury? Rogers said that he had taken a wider view about why there was a decision now to prosecute and not in 2011, why Kromberg’s statement was being made now after a gap of eight years. This was anomalous.

Lewis then asked “I want to consider why you did not consider the opposite view. Have you seen the evidence?” At this point he was grinning very strangely indeed, looking up at the judge, leaning back with one arm wide across his chair back, in some sort of peculiar alpha male gesture. I believe Rogers’ videolink only gave him a wide view of the whole courtroom, so how much he could see of the body language of his questioner I am unsure.

Rogers said he had seen the evidence. Lewis gurned in wild-eyed triumph “you cannot have seen the evidence. The evidence has only been seen by the grand jury and not released. You cannot have seen the evidence.” Rogers apologised, and said he had understood Lewis to mean Kromberg’s affidavit as the evidence. Rogers went on to say that less than 24 hours ago he had received an evidence bundle of 350 pages. It was unfair to expect him to have a precise mental picture of every document.

Lewis then returned to a Gordon Kromberg affidavit which said that prosecutors have a code which bars them from taking politically motivated decisions. Rogers replied that may be right in theory, but was untrue in practice, particularly in the USA where a much higher percentage of senior officials in the Department of Justice were political appointees who changed with each administration. Lewis asked Rogers whether he was alleging the prosecutors did not follow the code outlined by Kromberg. Rogers replied you had to consider the motivation of those above the prosecutors who influenced their decisions. “What you are giving me is a fair representation of how federal prosecutors are supposed to do their work. But they work as those above direct them.”

Lewis repeated that the code excludes political motivation for prosecution. Was Rogers claiming that Gordon Kromberg was acting in bad faith? Rogers replied no, but he was acting under political direction. The timing of this indictment after eight years was the key. Lewis asked whether that mattered if a crime had been committed. He referred to historic prosecutions of those soldiers who had allegedly committed crimes in Northern Ireland over twenty years ago. Was it political motivation that led to new prosecutions now? Rogers said this was more about bad faith.

Lewis asked if Rogers understood what Assange was being prosecuted for. Was he being prosecuted for publishing the collateral murder video? Rogers replied no, the charges were more specific and mostly related to the Espionage Act. Lewis stated the majority of charges were focused on complicity in theft and on hacking. Rogers responded there was obviously a wider political question as to why acts were being done in the first place. Lewis stated that on the question of publication, charges only related to the unredacted names of sources. Rogers said that he understood that was what the prosecution is saying, but was not agreed by the defence. But the question remained, why is this being brought now? And you could only look at that from the point of view of developments in American politics over the last twenty years.

Lewis asked Rogers to confirm that he was not saying US prosecutors were acting in bad faith. Rogers replied that he would hope not, at that level. Lewis asked if Rogers’ position was that at a higher level there had been a political decision to prosecute. Rogers said yes. These were complex matters. It was governed by political developments in the US since about 1997. He wished to speak to that… Lewis cut him off and said he preferred to look at evidence. He cited a Washington Post article from 2013 which stated that there had been no formal decision not to prosecute Assange by the Obama administration (this was the same article Lewis had quoted yesterday to Feldstein, on which he had been called out by Edward Fitzgerald for selective quotation). Rogers replied yes, but that must be considered in a wider context.

Lewis again refused to let Rogers develop his evidence, and gave the quotes from Assange’s legal team, again as given yesterday to Feldstein, to the effect they had in 2016 not been informed charges had been dropped. Rogers replied that was just what you would expect from Wikileaks at that time. They did not know and were bound to be cautious.

Lewis: Do you accept there had been a continuing investigation from Obama to Trump administrations.
Rogers: Yes, but we do not know at what level of intensity.
Lewis: Do you accept that there was no decision not to prosecute by Obama
Rogers: There was no decision to prosecute. It did not happen.
Lewis: How could they prosecute when Assange was in the Embassy?
Rogers: That would not preclude a prosecution going ahead and charges being brought. That might be a way to bring pressure on Ecuador.
Lewis: Assange’s lawyer said there was no decision not to prosecute by the Obama administration.
Rogers: I have accepted there was no decision not to prosecute. But there was no prosecution and it was considered.
Lewis: Judge Mehta said there was ongoing investigation of others beside Manning. And Wikileaks tweeted Assange’s willingness to come to the USA to face charges if Manning was granted clemency.
Rogers: Obviously Assange and his lawyer could not be sure of the situation. But it must be understood that bringing Julian Assange to the USA for a major trial of someone who was perceived by many Trump supporters and potential Trump supporters as an enemy of the state, might be of crucial political benefit to Mr Trump.

Lewis now responded that Rogers was not a real expert witness and “had given a biased opinion in favour of Julian Assange”.

Edward Fitzgerald QC then re-examined Prof Rogers for the defence. He said that Mr Lewis had appeared to see something sinister in Mr Assange’s statement that the invasion of Poland and second world war had been started by lies. To what lies did Prof Rogers think that Assange was referring? Rogers replied the lies of the Nazi Regime. Fitzgerald asked if this was a fair point. Rogers replied yes.

Fitzgerald read the context of Assange’s statement which also referred to lies starting the Iraq war. Rogers agreed that lies leading to war was a consistent Assange political theme. Fitzgerald then invited Rogers briefly to summarise the consequences of the change of US administration. Rogers stated that under Trump, the narrative from senior politicians on Wikileaks had changed.

The Bush administration had viewed the Iraq war as essential, with the support of most American people. That view had gradually changed until Obama had won basically on a “withdraw from Iraq” ticket. Similarly the Afghan war had been thought winnable but gradually the political establishment changed their mind. This shift in view was partly due to Wikileaks. By 2015/6 American politics had moved on from the wars and there was no political interest in prosecuting Wikileaks.

Then Trump came in with a completely new attitude to the entire fourth estate and to openness and accountability of the executive. That had led to this prosecution. Fitzgerald directed Rogers to a Washington Post article which stated:

The previously undisclosed disagreement inside the Justice Department underscores the fraught, high-stakes nature of the government’s years-long effort to counter Assange, an Internet-age publisher who has repeatedly declared his hostility to U.S. foreign policy and military operations. The Assange case also illustrates how the Trump administration is willing to go further than its predecessors in pursuit of leakers — and those who publish official secrets.

Rogers agreed this supported his position. Fitzgerald then asked about Lewis’s comparison with prosecution of British soldiers for historical crimes in Northern Ireland. Rogers agreed that their prosecution in no way related to their political opinions, so the cases were not comparable. Rogers’ final point was that four months after Barr took office as attorney general, charges were increased from a single one to eighteen. This was a pretty clear indication of political pressure being put on the prosecutorial system.

TREVOR TIMM

The afternoon witness was Trevor Timm, co-founder of the Freedom of the Press Association in San Francisco, again via videolink. You can see his full evidence statement here. The Freedom of the Press Association teaches and supports investigative journalism and seeks to document and counter violations of media freedom in the USA.

Mr Timm testified that there is a rich history in the USA of famous reporters covering defence and foreign affairs related matters drawing upon classified documents. In 1971 the Supreme Court had decided the government could not censor the NYT from publishing the Pentagon Papers. There have been several instances over history where the government had explored using the Espionage Act to prosecute journalists but no prosecution had ever materialised because of First Amendment constitutional rights.

For the defence, Mark Summers QC put to Mr Timms that this was the prosecution’s case: Chelsea Manning had committed a crime in whistleblowing. So any act that helped Chelsea Manning or solicited material was also a crime. Timm replied this was not the law. It was standard practice for journalists to ask sources for classified material. The implications of this prosecution would criminalise any journalist in receipt of classified intelligence. Virtually every single newspaper in the United States had criticised this decision to prosecute on these grounds, including those that have opposed Wikileaks’ general activities.

This was the only attempt to use the Espionage Act against a person not in government employ apart from the AIPAC case, which had collapsed for that reason. Many great journalists would have been caught by this kind of prosecution, including Woodward and Bernstein for the cultivation of Deep Throat.

Summers asked about the prosecution’s characterisation of the provision of a drop box by Wikileaks to a whistleblower as criminal conspiracy. Timm replied that the indictment treats possession of a secure drop box as a criminal offence. But the Guardian, Washington Post, New York Times and over 80 other news organisations have secure drop boxes. The International Committee of Investigative Journalists has a drop box with a specific “leak to us” page requesting classified documents. Timms’ own foundation had developed in 2014 a secure drop box which they taught, and which had been adopted by multiple news organisations in the USA.

Summers asked if news organisations advertised drop boxes. Timm replied yes. The New York Times links to its secure drop box in its social media posts. Some even took out paid adverts for whistleblowers. Summers asked about the “most wanted list” which the prosecution characterised as criminal solicitation. Timm replied that multiple respectable news organisations actively solicited whistleblowers. The “most wanted” list had been a Wiki document which had been crowdsourced. It was not a Wikileaks document. His own foundation had contributed to it along with many other media organisations. Summers asked if this was criminal activity. Timm replied in the negative.

Summers asked Timm to expound his thoughts on the Senate Intelligence Committee Report on Torture in 2014. Timm said that this vital and damning report on CIA involvement in torture had been much redacted and was based on thousands of classified documents not made available to the public. Virtually the entire media had therefore been involved in trying to obtain the classified material that revealed more of the story. Much of this material was classified Top Secret – higher than the Manning material. Many newspapers appealed for whistleblowers to come forward with documents and he had himself published an appeal to that effect in the Guardian.

Summers asked if it had ever been suggested to Timm this was criminal behaviour. Timm replied no, the universal belief had been that it was first amendment protected free speech. The current indictment is unconstitutional.

James Lewis QC then cross-examined for the prosecution. He said this was claimed to be expert opinion, but did Timm know what that meant in UK law? Timm said he had an obligation to explain his qualification and to tell the truth. Lewis replied that he was also supposed to be objective, unbiased and have no conflict of interest. But the Free Press Foundation had contribute to Assange’s defence fund. Lewis asked how much? Timm replied US$100,000.

Lewis asked if there were any conditions under which the Foundation would get their money back. Timm replied no, not to his knowledge. Lewis asked whether Timm would feel personally threatened were this case to go to prosecution. Timm replied that would represent a threat to many thousands of journalists. The Espionage Act was so widely drafted it would even pose a threat to purchasers and readers of newspapers containing leaked information.

Lewis said that Timm had testified that he had written advocating a leaking of CIA material. Did he fear he would be prosecuted himself? Timm replied no, he had not asked for material to be leaked to himself. But this prosecution was a real threat to thousands of journalists represented by his organisation.

Lewis said that the prosecution position is that Assange is not a journalist. Timm replied that he is a journalist. Being a journalist does not mean working for the mainstream media. There was a long legal history of that going back to pamphleteers at the time of Independence.

This cross examination was not going so well, and Lewis reached yet again for Gordon Kromberg’s affidavit as for a comfort blanket. Kromberg had sworn that the Department of Justice takes seriously the protection of journalists and that Julian Assange is no journalist. Kromberg had further sworn that Julian Assange was only being prosecuted for conspiring to illegally obtain material, and for publishing unredacted names of informants who would be at risk of death. The government is going out of its way to stress it is not prosecuting journalism.

Timm replied that he based his opinion on what the indictment said, not on the Department of Justice press release from which Lewis had read. Three of these charges relate to publication. The other charges relate to possession of material. Lewis said that Timm was missing the hacking allegation which was central to Count 1 and several other counts. Lewis quoted an article in the Law Review of New York Law School, which said that it was illegal for a journalist to obtain material from the wreckage of a crashed airplane, from an illegal wiretap or from theft, even if the purpose were publication. Would it not be illegal to conspire with a source to commit hacking?

Timm replied that in this case the allegation appeared to be that the hacking was to protect the identity of the source, not to steal documents. Protection of sources was an obligation.

Lewis then asked Timm if he had seen the actual evidence that supports the indictment. Timm replied only some of it, in particular the Java script of the messages allegedly between Assange and Manning. Lewis said Timm could not have seen all the evidence as it had not been published. Timm replied he had not said he had seen it all. He had seen the alleged Assange/Manning messages which had been published.

Lewis said that Assange had published unredacted material which put lives in danger. That was the specific charge. Timm replied that, assuming the assertion was true, the prosecution was still unconstitutional. There was a difference between responsible and irresponsible, and legal and illegal. An act could be irresponsible, even blameworthy, and still not illegal.

There had never been a prosecution for publication of names of informants, even where they were allegedly put in harm’s way. Following the official line about harm to informants precisely due to Wikileaks’ publication of the cables, Senator Joe Liebermann had introduced the Shield Bill into Congress. It failed specifically on First Amendment grounds. The episode tells us two things; firstly that Congress considered publication of informants’ names was not illegal and secondly that neither did they wish to make it illegal.

Lewis quoted a Guardian editorial condemning the publication of names, and stated that the Washington Post, New York Times, El Pais and Der Spiegel among many others had condemned it too. Timm replied that still did not make it illegal. The US government ought not to be the arbiter of whether an editorial decision is correct or not. Timm also felt it worth noting in passing that all of those media outlets whose opinions Lewis held in such high regard, had condemned the current attempt at prosecution.

Lewis asked why we should prefer Timm’s opinion to that of the courts. Timm replied that his opinion was in line with the courts. Countless decisions over centuries upheld the First Amendment. It was the indictment which was out of tune with the courts. The Supreme Court had expressly stated that there was no balance of harm argument in First Amendment cases.

Lewis asked Timm what qualification he had to comment on legal matters. Timm replied he had graduated from Law School and had gained admission to the New York Bar, but rather than practice he had worked on academic analysis of media freedom cases. The Foundation often joined in with litigation in support of media freedom, on an amicus basis.

Lewis said (in a tone of disbelief) that Timm had stated this prosecution was part of “Trump’s war on journalism”. Timm cut in niftily. Yes, he explained, we keep track on Trump’s war on journalism. He has sent out over 2,200 tweets attacking journalists. He has called journalists “enemies of the people”. There is a great deal of available material on this.

Lewis asked why Timm had failed to note that US Assistant Attorney Gordon Kromberg had specifically denied that there was a war on journalists? Timm said he had addressed these arguments in his evidence, though without specifically referencing Kromberg. Lewis stated that Timm had also not addressed Kromberg’s assertion that Assange is not charged simply with receipt of classified material. Timm replied that is because Kromberg’s assertion is inaccurate. Assange is indeed charged with offences encompassing passive receipt. If you get to count 7, for example and look at the legislation it charges under, it does precisely criminalise passive receipt and possession.

Lewis asked why Timm had omitted Kromberg’s reference to the grand jury decision? Timm replied that it meant very little: 99.9% of grand juries agree to return a prosecution. An academic study of 152,000 grand juries had revealed only 11 which had refused the request of a federal prosecutor to prosecute.

Lewis asked Timm why he had failed to mention that Kromberg asserted that a federal prosecutor may not take political considerations into account. Timm replied that did not reflect reality. Prosecution was one prong of many in President Trump’s war on journalism. Lewis asked whether Timm was saying that Kromberg and his colleagues were acting in bad faith. Timm replied no, but there had been a story in the Washington Post that more senior federal prosecutors had been opposed to the prosecution as contrary to the First Amendment and thus unconstitutional.

Mark Summers then re-examined for the defence. He said that Kromberg presents two grounds for Assange not being a journalist. The first is that he conspired with Manning to obtain confidential material. Timm replied that this cultivating of a source was routine journalistic activity. The indictment is precluded by the First Amendment. The Supreme Court has ruled that even if a journalist knows that material is stolen (but not by him), he may still publish with entitlement to First Amendment protection.

Summers asked Timm about Lewis’s comparison of Assange’s contact with Manning to theft from an airplane wreck or illegal wiretap. Timm said this alleged offence did not reach that bar. The government does not allege that Assange himself helped Manning to steal the material. It alleges he provided help to crack a code that enabled Manning better to protect his identity.

Lewis here interrupted with a lengthy quote from one of Kromberg’s affidavits, to the effect that the government was now alleging that Assange helped Manning hack a password in order to facilitate obtaining classified information. Timm said yet again Kromberg’s affidavit did not appear to match the actual indictment. The claim there is that the password hacking “may have made it more difficult to identify Manning”. It is about source protection, not theft. Source protection is normal journalistic activity.

Summers stated that Kromberg’s second justification for stating that Assange is not a journalist was that he published the names of sources. Timm replied that he understood these facts were disputed, but in any event the Supreme Court had made plain such publication still enjoyed First Amendment protection. Controversial editorial choice did not render you “not a journalist”.

Summers asked Timm if he accepted Kromberg’s characterisation that Assange was only being prosecuted for alleged hacking and for publication of names. Timm said he did not. Counts 16, 17 and 18 were for publishing. All the other counts related to possession. Count 7 for example was for “knowingly unlawful receiving and obtaining”. That described passive receipt of classified information and would criminalise much legitimate journalistic activity. Huge swathes of defence, national security and foreign affairs reporting would be criminalised.

COMMENT

The defence have been attempting the last two days to make a rational case that this is a politically motivated prosecution and therefore not eligible under the terms of the UK/US extradition treaty of 2007 (relevant extract pictured above).

In opening argument back in February, the prosecution had run a frankly farcical argument that Article 4 of the treaty does not apply as incompatible with UK law, and an esto argument that Assange’s activity is not political as in law that word can only mean support for a particular party. Hence Lewis’s sparring on that point with Prof Rogers today, in which Lewis was well out of his depth.

Lewis primary tactic has been rudeness and aggression to disconcert witnesses. He questions their honesty, fairness, independence and qualifications. Today his bullying tactics ran foul of two classier performers than he. That is no criticism of Professor Feldstein yesterday, whose quiet dignity and concern was effective in a different way in exposing Lewis as a boor.

Lewis’s remaining tactic is to fall back repeatedly on the affidavits of Gordon Kromberg, US Assistant Attorney, and his statements that the prosecution is not politically motivated, and on Kromberg’s characterisation of the extent of the charges, which everybody else but Lewis and Kromberg finds inconsistent with the superseding indictment itself.

Witnesses understandably back away from Lewis’s challenge to call Kromberg a liar, or even to question his good faith. Lewis’s plan is very plainly to declare at the end that every witness accepted Kromberg’s good faith and therefore this is a fair prosecution and the defence have no case.

Perhaps I can assist. I do not accept Kromberg’s good faith. I have no hesitation in calling Kromberg a liar.

When the best thing your most supportive colleague can say about you, is that out-and-out Islamophobes do enjoy temporary popularity in the immediate aftermath of a terror attack, then there is a real problem. There is a real problem with Gordon Kromberg, and Lewis may very well come to regret resting the weight of the credibility of his entire case upon such a shoogly peg.

Kromberg has a repeated history of Islamophobic remarks, including about Muslim women. As the Wall Street Journal reported on September 15th 2008,

“Kromberg has taken a lot of heat recently for comments made and tactics taken in terrorism prosecutions”… said Andrew McCarthy, a former federal terrorism prosecutor. “As long as nothing goes boom, they want to say you’re an Islamophobe. The moment something does go boom, if the next 9/11 happens, God help anyone who says they weren’t as aggressive as Gordon.”

For British readers, Kromberg is Katie Hopkins with a legal brief. Conjure up that image every one of the scores of times Lewis relies on Gordon Kromberg.

More to the point, all expert witnesses have so far said that Kromberg’s precious memoranda explaining the scope of the indictment are inaccurate. It is at odds either with actual practice in the USA (the lawyer Clive Stafford Smith made this point) or the actual statutes to which it refers (the lawyers Trevor Timm and of course Mark Summers QC for the defence both make this point).

Crucially, Kromberg has a proven history of precisely this kind of distortion away from the statute. Also from the Wall Street Journal:

Federal judge Leonie M. Brinkema lashed out at the prosecutor [Kromberg], calling his remark insulting. Earlier, she had chastised Kromberg for changing a boilerplate immunity order beyond the language spelled out by Congress and questioned whether Arian’s constitutional rights had been violated.

“I’m not in any respect attributing evil motives or anything clandestine to you, but I think it’s real scary and not wise for a prosecutor to provide an order to the Court that does not track the explicit language of the statutes, especially this particular statute,” Brinkema said at the hearing in the Alexandria courtroom.

Next time Lewis asks a witness if they are questioning Kromberg’s good faith, they might want to answer “yes”. It certainly will not be the first time. As Trevor Timm testified today, senior prosecutors in the Justice Department had opposed this prosecution as unconstitutional and refused to be involved. Trump was left with this discredited right wing sleazeball. Now here we are at the Old Bailey, with a floundering Lewis clutching at this oaf Kromberg for intellectual support.
 
 
You are free to republish this article, including in translation, without further permission. A brief note left in comments below detailing where it is republished is appreciated.

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Julian Assange's Lawyer: WikiLeaks Founder Faces Life in Prison for "Doing His Job as a Journalist"

•Sep 9, 2020

175 Years in a U.S. Prison? Extradition Trial of WikiLeaks Founder Julian Assange Begins in London

 

Democracy Now!

As the long-awaited extradition hearing for WikiLeaks founder Julian Assange gets underway in London, his legal adviser, Jennifer Robinson, says the case could set a chilling precedent for press freedoms around the world. "He faces 175 years in prison for doing his job as a journalist and a publisher. That's why this case is so dangerous," says Robinson. Assange faces numerous charges, including under the U.S. Espionage Act, related to the release of diplomatic cables published by WikiLeaks that revealed war crimes committed by U.S. forces in Iraq and Afghanistan. He faces a possible life sentence if he is extradited to the U.S.

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Your Man in the Public Gallery: Assange Hearing Day 7

CLIVE STAFFORD SMITH

This morning we went straight in to the evidence of Clive Stafford Smith, a dual national British/American lawyer licensed to practice in the UK. He had founded Reprieve in 1999 originally to oppose the death penalty, but after 2001 it had branched out into torture, illicit detention and extraordinary rendition cases in relation to the “war on terror”.

Clive Stafford Smith testified that the publication by Wikileaks of the cables had been of great utility to litigation in Pakistan against illegal drone strikes. As Clive’s witness statementput it at paras 86/7:

86. One of my motivations for working on these cases was that the U.S. drone campaign appeared to be horribly mismanaged and was resulting in paid informants giving false information about innocent people who were then killed in strikes. For example, when I shared the podium with Imran Khan at a “jirga” with the victims of drone strikes, I said in my public remarks that the room probably contained one or two people in the pay of the CIA. What I never guessed was that not only was this true but that the informant would later make a false statement about a teenager who attended the jirga such that he and his cousin were killed in a drone strike three days later. We knew from the official press statement afterwards that the “intelligence” given to the U.S. involved four “militants” in a car; we knew from his family just him and his cousin going to pick up an aunt. There is a somewhat consistent rule that can be seen at work here: it is, of course, much safer for any informant to make a statement about someone who is a “nobody”, than someone who is genuinely dangerous.
87. This kind of horrific action was provoking immense anger, causing America’s status in Pakistan to plummet, and was making life more dangerous for Americans, not less.

Legal action dependent on the evidence about US drones strike policy revealed by Wikileaks had led to a judgement against assassination by the Chief Justice of Pakistan and to a sea change to public attitudes to drone strikes in Waziristan. One result had been a stopping of drone strikes in Waziristan.

Wikileaks released cables also revealed US diplomatic efforts to block international investigation into cases of torture and extraordinary rendition. This ran counter to the legal duty of the United States to cooperate with investigation of allegations of torture as mandated in Article 9 of the UN Convention Against Torture.

Stafford Smith continued that an underrated document released by Wikileaks was the JPEL, or US military Joint Priority Effects List for Afghanistan, in large part a list of assassination targets. This revealed a callous disregard of the legality of actions and a puerile attitude to killing, with juvenile nicknames given to assassination targets, some of which nicknames appeared to indicate inclusions on the list by British or Australian agents.

Stafford Smith gave the example of Bilal Abdul Kareem, and American citizen and journalist who had been the subject of five different US assassination attempts, using hellfire missiles fired from drones. Stafford Smith was engaged in ongoing litigation in Washington on whether “the US Government has the right to target its own citizens who are journalists for assassination.”

Stafford Smith then spoke of Guantanamo and the emergence of evidence that many detainees there are not terrorists but had been swept up in Afghanistan by a system dependent on the payment of bounties. The Detainee Assessment Briefs released by Wikileaks were not independent information but internal US Government files containing the worst allegations that the US had been able to “confect” against prisoners including Stafford Smith’s clients, and often get them to admit under torture.

These documents were US government allegations and when Wikileaks released them it was his first thought that it was the US Government who had released them to discredit defendants. The documents could not be a threat to national security.

Inside Guantanamo a core group of six detainees had turned informant and were used to make false allegations against other detainees. Stafford Smith said it was hard to blame them – they were trying to get out of that hellish place like everybody else. The US government had revealed the identities of those six, which put into perspective their concern for protecting informants in relation to Wikileaks releases.

Clive Stafford Smith said he had been “profoundly shocked” by the crimes committed by the US government against his clients. These included torture, kidnapping, illegal detention and murder. The murder of one detainee at Baghram Airport in Afghanistan had been justified as a permissible interrogation technique to put fear into other detainees. In 2001, he would never have believed the US Government could have done such things.

Stafford Smith spoke of use of Spanish Inquisition techniques, such as strapado, or hanging by the wrists until the shoulders slowly dislocate. He told of the torture of Binyam Mohammed, a British citizen who had his genitals cut daily with a razor blade. The British Government had avoided its legal obligations to Binyam Mohammed, and had leaked to the BBC the statement he had been forced to confess to under torture, in order to discredit him.

At this point Baraitser intervened to give a five minute warning on the 30 minute guillotine on Stafford Smith’s oral evidence. Asked by Mark Summers for the defence how Wikileaks had helped, Stafford Smith said that many of the leaked documents revealed illegal kidnapping, rendition and torture and had been used in trials. The International Criminal Court had now opened an investigation into war crimes in Afghanistan, in which decision Wikileaks released material had played a part.

Mark Summers asked what had been the response of the US Government to the opening of this ICC investigation. Clive Stafford Smith stated that an Executive Order had been issued initiating sanctions against any non-US citizen who cooperated with or promoted the ICC investigation into war crimes by the US. He suggested that Mr Summers would now be subject to US sanction for promoting this line of questioning.

Mr Stafford Smith’s 30 minutes was now up. You can read his full statement here. There could not have been a clearer example from the first witness of why so much time yesterday was taken up with trying to block the evidence of defence witnesses from being heard. Stafford Smith’s evidence was breathtaking stuff and clearly illustrated the purpose of the time guillotine on defence evidence. This is not material governments wish to be widely aired.

James Lewis QC then cross-examined Clive Stafford Smith for the prosecution. He noted that references to Wikileaks in Stafford Smith’s written evidence were few and far between. He suggested that Stafford Smith’s evidence had tended to argue that Wikileaks disclosures were in the public interest; but there was specifically no public interest defence allowed in the UK Official Secrets Act.

Stafford Smith replied that may be, but he knew that was not the case in America.

Lewis then said that in Stafford Smith’s written evidence paras 92-6 he had listed specific Wikileaks cables which related to disclosure of drone policy. But publication of these particular cables did not form part of the indictment. Lewis read out part of an affidavit from US Assistant Attorney Kromberg which stated that Assange was being indicted only for cables containing the publication of names of informants.

Stafford Smith replied that Kromberg may state that, but in practice that would not be the case in the United States. The charge was of conspiracy, and the way such charges were defined in the US system would allow the widest inclusion of evidence. The first witness at trial would be a “terrorism expert” who would draw a wide and far reaching picture of the history of threat against the USA.

Lewis asked whether Stafford Smith had read the indictment. He replied he had read the previous indictment, but not the new superseding indictment.

Lewis stated that the cables Stafford Smith quoted had been published by the Washington Post and the New York Times before they were published by Wikileaks. Stafford Smith responded that was true, but he understood those newspapers had obtained them from Wikileaks. Lewis then stated that the Washington Post and New York Times were not being prosecuted for publishing the same information; so how could the publication of that material be relevant to this case?

Lewis quoted Kromberg again:

“The only instance in which the superseding indictment encompasses the publication of documents, is where those documents contains names which are put at risk”.

Stafford Smith again responded that in practice that was not how the case would be prosecuted in the United States. Lewis asked if Stafford Smith was calling Kromberg a liar.

At this point Julian Assange called out from the dock “This is nonsense. Count 1 states throughout “conspiracy to publish”. After a brief adjournment, Baraitser warned Julian he would be removed from the court if he interrupted proceedings again.

Stafford Smith said he had not said that Kromberg was a liar, and had not seen the full document from which Lewis was selectively quoting at him. Count 1 of the indictment is conspiracy to obtain national security information and this references dissemination to the public in a sub paragraph. This was not limited in the way Kromberg suggests and his claim did not correspond to Stafford Smith’s experience of how national security trials are in fact prosecuted in the United States.

Lewis reiterated that nobody was being prosecuted for publishing except Assange, and this only related to publishing names. He then asked Stafford Smith whether he had ever been in a position of responsibility for classifying information, to which he got a negative reply. Lewis then asked if had ever been in an official position to declassify documents. Stafford Smith replied no, but he held US security clearance enabling him to see classified material relating to his cases, and had often applied to have material declassified.

Stafford Smith stated that Kromberg’s assertion that the ICC investigation was a threat to national security was nonsense [I confess I am not sure where this assertion came from or why Stafford Smith suddenly addressed it]. Lewis suggested that the question of harm to US national interest from Assange’s activities was best decided by a jury in the United States. The prosecution had to prove damage to the interests of the US or help to an enemy of the US.

Stafford Smith said that beyond the government adoption of torture, kidnapping and assassination, he thought the post-2001 mania for over-classification of government information was an even bigger threat to the American way of life. He recalled his client Moazzam Begg – the evidence of Moazzam’s torture was classified “secret” on the grounds that knowledge that the USA used torture would damage American interests.

Lewis then took Stafford Smith to a passage in the book “Wikileaks; Inside Julian Assange’s War on Secrecy”, in which Luke Harding stated that he and David Leigh were most concerned to protect the names of informants, but Julian Assange had stated that Afghan informants were traitors who merited retribution. “They were informants, so if they got killed they had it coming.” Lewis tried several times to draw Stafford Smith into this, but Stafford Smith repeatedly said he understood these alleged facts were under dispute and he had no personal knowledge.

Lewis concluded by again repeating that the indictment only covered the publication of names. Stafford Smith said that he would eat his hat if that was all that was introduced at trial.

In re-examination, Mark Summers said that Lewis had characterised the disclosure of torture, killing and kidnapping as “in the public interest”. Was that a sufficient description? Stafford Smith said no, it was also the provision of evidence of crime; war crime and illegal activity.

Summers asked Stafford Smith to look at the indictment as a US lawyer (which Stafford Smith is) and see if he agreed with the characterisation by Lewis that it only covered publication where names were revealed. Summers read out this portion of the superseding indictment:

and pointed out that the “and” makes the point on documents mentioning names an additional category of document, not a restriction on the categories listed earlier. You can read the full superseding indictment here; be careful when browsing as there are earlier superseding indictments; the US Government changes its indictment in this case about as often as Kim Kardashian changes her handbag.

Summers also listed Counts 4, 7, 10, 13 and 17 as also not limited to the naming of informants.

Stafford Smith again repeated his rather different point that in practice Kromberg’s assertion does not actually match how such cases are prosecuted in the US anyway. In answer to a further question, he repeated that the US government had itself released the names of its Guantanamo Bay informants.

In regard to the passage quoted from David Leigh, Summers asked Stafford Smith “Do you know that Mr Harding has published untruths in the press”. Lewis objected and Summers withdrew (although this is certainly true).

This concluded Clive Stafford Smith’s evidence. Before the next witness, Lewis put forward an argument to the judge that it was beyond dispute that the new indictment only related, as far as publication being an offence was concerned, to publication of names of defendants. Baraitser had replied that plainly this was disputed and the matter would be argued in due course.

PROFESSOR MARK FELDSTEIN

The afternoon resumed the evidence of Professor Mark Feldstein, begun sporadically amid technical glitches on Monday. For that reason I held off reporting the false start until now; I here give it as one account. Prof Feldstein’s full witness statement is here.

Professor Feldstein is Chair of Broadcast Journalism at Maryland University and had twenty years experience as an investigative journalist.

Feldstein stated that leaking of classified information happens with abandon in the United States. Government officials did it frequently. One academic study estimated such leaks as “thousands upon thousands”. There were journalists who specialised in national security and received Pulitzer prizes for receiving such leaks on military and defence matters. Leaked material is published on a daily basis.

Feldstein stated that “The first amendment protects the press, and it is vital that the First Amendment does so, not because journalists are privileged, but because the public have the right to know what is going on”. Historically, the government had never prosecuted a publisher for publishing leaked secrets. They had prosecuted whistleblowers.

There had been historical attempts to prosecute individual journalists, but all had come to nothing and all had been a specific attack on a perceived Presidential enemy. Feldstein had listed three instances of such attempts, but none had reached a grand jury.
[This is where the technology broke down on Monday. We now resume with Tuesday afternoon.]

Mark Summers asked Prof Feldstein about the Jack Anderson case. Feldstein replied he had researched this for his book “Poisoning the Press”. Nixon had planned to prosecute Anderson under the Espionage Act but had been told by his Attorney General the First Amendment made it impossible. Consequently Nixon had conducted a campaign against Anderson that included anti-gay smears, planting a spy in his office and foisting forged documents on him. An assassination plot by poison had even been discussed.

Summers took Feldstein to his evidence on “Blockbuster” newspaper stories based on Wikileaks publications:

  • A disturbing videotape of American soldiers firing on a crowd from a helicopter above Baghdad, killing at least 18 people; the soldiers laughed as they targeted unarmed civilians, including two Reuters journalists.
  • US officials gathered detailed and often gruesome evidence that approximately 100,000 civilians were killed after its invasion of Iraq, contrary to the public claims of President George W. Bush’s administration, which downplayed the deaths and insisted that such statistics were not maintained. Approximately 15,000 of these civilians killings had never been previously disclosed anywhere.
  • American forces in Iraq routinely turned a blind eye when the US-backed government there brutalized detainees, subjecting them to beatings, whippings, burnings, electric shock, and sodomy.
  • After WikiLeaks published vivid accounts compiled by US diplomats of rampant corruption by Tunisian president Zine el-Abidine Ben Ali and his family, ensuing street protests forced the dictator to flee to Saudia Arabia. When the unrest in Tunisia spread to other Mideast countries,WikiLeaks was widely hailed as a key catalyst for this “Arab Spring.”
  • In Afghanistan, the US deployed a secret “black” unit of special forces to hunt down “high value” Taliban leaders for “kill or capture” without trial.
  • The US government expanded secret intelligence collection by its diplomats at the United Nations and overseas, ordering envoys to gather credit card numbers, work schedules, and frequent flier numbers of foreign dignitaries—eroding the distinction between foreign service officers and spies.
  • Saudi Arabian King Abdullah secretly implored the US to “cut off the head of the snake” and stop Iran from developing nuclear weapons even as private Saudi donors were the number-one source of funding to Sunni terrorist groups worldwide.
  • Customs officials caught Afghanistan’s vice president carrying $52 million in unexplained cash during a trip abroad, just one example of the endemic corruption at the highest levels of the Afghan government that the US has helped prop up.
  • The US released “high risk enemy combatants” from its military prison in Guantanamo Bay, Cuba who then later turned up again in Mideast battlefields. At the same time, Guantanamo prisoners who proved harmless—such as an 89-year-old Afghan villager suffering from senile dementia—were held captive for years.
  • US officials listed Pakistan’s intelligence service as a terrorist organization and found that it had plotted with the Taliban to attack American soldiers in Afghanistan—even though Pakistan receives more than $1 billion annually in US aid. Pakistan’s civilian president, Asif Ali Zardari, confided that he had limited control to stop this and expressed fear that his own military might “take me out.”

Feldstein agreed that many of these had revealed criminal acts and war crimes, and they were important stories for the US media. Summers asked Feldstein about Assange being charged with soliciting classified information. Feldstein replied that gathering classified information is “standard operating procedure” for journalists. “My entire career virtually was soliciting secret documents or records”

Summers pointed out that one accusation was that Assange helped Manning cover her tracks by breaking a password code. “Trying to help protect your source is a journalistic obligation” replied Feldstein. Journalists would provide sources with payphones, fake email accounts, and help them remove fingerprints both real and digital. These are standard journalistic techniques, taught at journalism college and workshops.

Summers asked about disclosure of names and potential harm to people. Feldstein said this was “easy to assert, hard to establish”. Government claims of national security damage were routinely overblown and should be treated with scepticism. In the case of the Pentagon Papers, the government had claimed that publication would identify CIA agents, reveal military plans and lengthen the Vietnam War. These claims had all proven to be untrue.

On the White House tapes Nixon had been recorded telling his aides to “get” the New York Times. He said their publications should be “cast in terms of aid and comfort to the enemy”.

Summers asked about the Obama administration’s attitude to Wikileaks. Feldstein said that there had been no prosecution after Wikileaks’ major publications in 2010/11. But Obama’s Justice Department had instigated an “aggressive investigation”. However they concluded in 2013 that the First Amendment rendered any prosecution impossible. Justice Department Spokesman Matthew Miller had published that they thought it would be a dangerous precedent that could be used against other journalists and publications.

With the Trump administration everything had changed. Trump had said he wished to “put reporters in jail”. Pompeo when head of the CIA had called Wikileaks a “hostile intelligence agency”. Sessions had declared prosecuting Assange “a priority”.

James Lewis then rose to cross-examine Feldstein. He adopted a particularly bullish and aggressive approach, and started by asking Feldstein to confine himself to very short, concise answers to his precise questions. He said that Feldstein “claimed to be” an expert witness, and had signed to affirm that he had read the criminal procedural rules. Could he tell the court what those rules said?

This was plainly designed to trip Feldstein up. I am sure I must have agreed WordPress’s terms and conditions in order to be able to publish this blog, but if you challenged me point blank to recall what they say I would struggle. However Feldstein did not hesitate, but came straight back saying that he had read them, and they were rather different to the American rules, stipulating impartiality and objectivity.

Lewis asked what Feldstein’s expertise was supposed to be. Feldstein replied the practice, conduct and history of journalism in the United States. Lewis asked if Feldstein was legally qualified. Feldstein replied no, but he was not giving legal opinion. Lewis asked if he had read the indictment. Feldstein replied he had not read the most recent indictment.

Lewis said that Feldstein had stated that Obama decided not to prosecute whereas Trump did. But it was clear that the investigation had continued through from the Obama to the Trump administrations. Feldstein replied yes, but the proof of the pudding was that there had been no prosecution under Obama.

Lewis referred to a Washington Post article from which Feldstein had quoted in his evidence and included in his footnotes, but had not appended a copy. “Was that because it contained a passage you do not wish us to read?” Lewis said that Feldstein had omitted the quote that “no formal decision had been made” by the Obama administration, and a reference to the possibility of prosecution for activity other than publication.

Feldstein was plainly slightly rattled by Lewis’ accusation of distortion. He replied that his report stated that the Obama administration did not prosecute, which was true. He had footnoted the article; he had not thought he needed to also provide a copy. He had exercised editorial selection in quoting from the article.

Lewis said that from other sources, a judge had stated in District Court that investigation was ongoing and District Judge Mehta had said other prosecutions against persons other than Manning were being considered. Why had Feldstein not included this information in his report? Assange’s lawyer Barry J Pollock had stated “they are not informing us they are closing the investigation or have decided not to charge.” Would it not be fair to add that to his report?

Prof Feldstein replied that Assange and his lawyers would be hard to convince that the prosecution had been dropped, but we know that no new information had in 2015/16 been brought to the Grand Jury.

Lewis stated that in 2016 Assange had offered to go to the United States to face charges if Manning were granted clemency. Does this not show the Obama administration was intending to charge? Should this not have been in his report? Feldstein replied no, because it was irrelevant. Assange was not in a position to know what Obama’s Justice Department was doing. The subsequent testimony of Obama Justice Department insiders was much more valuable.

Lewis asked if the Obama administration had decided not to prosecute, why would they keep the Grand Jury open? Feldstein replied this happened very frequently. It could be for many reasons, including to collect information on alleged co-conspirators, or simply in the hope of further new evidence.

Lewis suggested that the most Feldstein might honestly say was that the Obama administration had intimated that they would not prosecute for passively obtained information, but that did not extend to a decision not to prosecute for hacking with Chelsea Manning. “If Obama did not decide not to prosecute, and the investigation had continued into the Trump administration, then your diatribe against Trump becomes otiose.”

Lewis continued that the “New York Times problem” did not exist because the NYT had only published information it had passively received. Unlike Assange, the NYT had not conspired with Manning illegally to obtain the documents. Would Prof Feldstein agree that the First Amendment did not defend a journalist against a burglary or theft charge? Feldstein replied that a journalist is not above the law. Lewis then asked Feldstein whether a journalist had a right to “steal or unlawfully obtain information” or “to hack a computer to obtain information.” Each time Feldstein replied “no”.

Lewis then asked if Feldstein accepted that Bradley (sic) Manning had committed a crime. Feldstein replied “yes”. Lewis then asked “If Assange aided and abetted, consulted or procured or entered into a conspiracy with Bradley Manning, has he not committed a crime?” Feldstein said that would depend on the “sticky details.”

Lewis then restated that there was no allegation that the NYT entered into a conspiracy with Bradley Manning, only Julian Assange. On the indictment, only counts 15, 16 and 17 related to publishing and these only to publishing of unredacted documents. The New York Times, Guardian and Washington Post had united in condemnation of the publication by Wikileaks of unredacted cables containing names. Lewis then read out again the same quote from the Leigh/Harding book he had put to Stafford Smith, stating that Julian Assange had said the Afghan informants would deserve their fate.

Lewis asked: “Would a responsible journalist publish unredacted names of an informant knowing he is in danger when it is unnecessary to do so for the purpose of the story”. Prof Feldstein replied “no”. Lewis then went on to list examples of information it might be proper for government to keep secret, such as “troop movements in war, nuclear codes, material that would harm an individual” and asked if Feldstein agreed these were legitimate secrets. Feldstein replied “yes”.

Lewis then asked rhetorically whether it was not more fair to allow a US jury to be the judge of harm. He then asked Feldstein: “You say in your report that this is a political prosecution. But a Grand jury has supported the prosecution. Do you accept that there is an evidentiary basis for the prosecution?”. Feldstein replied “A grand jury has made that decision. I don’t know that it is true.” Lewis then read out a statement from US Assistant Attorney Kromberg that prosecution decisions are taken by independent prosecutors who follow a code that precludes political factors. He asked Feldstein if he agreed that independent prosecutors were a strong bulwark against political prosecution.
Feldstein replied “That is a naive view.”

Lewis then asked whether Feldstein was claiming that President Trump or his Attorney General had ordered this prosecution without a factual basis. The professor replied he had no doubt it was a political prosecution, this was based on 1) its unprecedented nature 2) the rejection of prosecution by Obama but decision to prosecute now with no new evidence 3) the extraordinary wide framing of the charges 4) President Trump’s narrative of hostility to the press. “It’s political”.

Mark Summers then re-examined Professor Feldstein. He said that Lewis had suggested that Assange was complicit in Manning obtaining classified information but the New York Times was not. Is it your understanding that to seek to help an official leaker is a crime? Professor Feldstein replied “No, absolutely not”.
“Do journalists ask for classified information?”
“Yes.”
“Do journalists solicit such information?”
“Yes.”
“Are you aware of any kind of previous prosecution for this kind of activity.”
“No. Absolutely not.”
“Could you predict it would be criminalised?”
“No, and it is very dangerous.”

Summers than asked Professor Feldstein what the New York Times had done to get the Pentagon Papers from Daniel Ellsberg. Feldstein replied they were very active in soliciting the papers. They had a key to the room that held the documents and had helped to copy them. They had played an active not a passive role. “Journalists are not passive stenographers.”

Summers reminded Prof Feldstein that he had been asked about hacking. What if the purpose of the hacking was not to obtain the information, but to disguise the source? This was the specific allegation spelt out in Kromberg memorandum 4 paras 11 to 14. Professor Feldstein replied that protecting sources is an obligation. Journalists work closely with, conspire with, cajole, encourage, direct and protect their sources. That is journalism.

Summers asked Prof Feldstein if he maintained his caution in accepting government claims of harm. Feldstein replied absolutely. The government track record demanded caution. Summers pointed out that there is an act which specifically makes illegal the naming of intelligence sources, the Intelligence Identities Protection Act. Prof Feldstein said this was true; the fact that the charge was not brought under the IIPA proves that it is not true that the prosecution is intended to be limited to revealing of identities and in fact it will be much broader.

Summers concluded by saying that Lewis had stated that Wikileaks had released the unredacted cables in a mass publication. Would it change the professor’s assessment if the material had already been released by others. Prof Feldstein said his answers were not intended to indicate he accepted the government narrative.

Edward Fitzgerald QC then took over for the defence. He put to Prof Feldstein that there had been no prosecution of Assange when Manning was prosecuted, and Obama had given Manning clemency. These were significant facts. Feldstein agreed.

Fitzgerald then said that the Washington Post article from which Lewis complained Feldstein had quoted selectively, contained a great deal more material Feldstein had also not quoted but which strongly supported his case, for example “Officials told the Washington Post last week that there is no sealed indictment and the Department had “all but concluded that they would not bring a charge.”” It further stated that when Snowden was charged, Greenwald was not, and the same approach was followed with Manning/Assange. So overall the article confirmed Feldstein’s thesis, as contained in his report. Feldstein agreed. There was then discussion of other material that could have been included to support his thesis.

Fitzgerald concluded by asking if Feldstein were familiar with the phrase “a grand jury would indict a ham sandwich”. Feldstein replied it was common parlance and indicated the common view that grand juries were malleable and almost always did what prosecutors asked them to do. There was a great deal of academic material on this point.

THOUGHTS

See the source image

Thus concluded another extraordinary day. Once again, there were just five of us in the public gallery (in 42 seats) and the six allowed in the overflow video gallery in court 9 was reduced to three, as three seats were reserved by the court for “VIPs” who did not show up.

The cross-examinations showed the weakness of the thirty minute guillotine adopted by Baraitser, with really interesting defence testimony cut short, and then unlimited time allowed to Lewis for his cross examination. This was particularly pernicious in the evidence of Mark Feldstein. In James Lewis’ extraordinary cross-examination of Feldstein, Lewis spoke between five and ten times as many words as the actual witness. Some of Lewis’s “questions” went on for many minutes, contained huge passages of quote and often were phrased in convoluted double negative. Thrice Feldstein refused to reply on grounds he could not make out where the question lay. With the defence initial statement of the evidence limited to half an hour, Lewis’s cross examination approached two hours, a good 80% of which was Lewis speaking.

Feldstein was browbeaten by Lewis and plainly believed that when Lewis told him to answer in very brief and concise answers, Lewis had the authority to instruct that. In fact Lewis is not the judge and it was supposed to be Feldstein’s evidence, not Lewis’s. Baraitser failed to protect Feldstein or to explain his right to frame his own answers, when that was very obviously a necessary course for her to take.

Today we had two expert witnesses, who had both submitted lengthy written testimony relating to one indictment, which was now being examined in relation to a new superseding indictment, exchanged at the last minute, and which neither of them had ever seen. Both specifically stated they had not seen the new indictment. Furthermore this new superseding indictment had been specifically prepared by the prosecution with the benefit of having heard the defence arguments and seen much of the defence evidence, in order to get round the fact that the indictment on which the hearing started was obviously failing.

On top of which the defence had been refused an adjournment to prepare their defence against the new indictment, which would have enabled these and other witnesses to see the superseding indictment, adjust their evidence accordingly and be prepared to be cross-examined in relation to it.

Clive Stafford Smith testified today that in 2001 he would not have believed the outrageous crimes that were to be perpetrated by the US government. I am obliged to say that I simply cannot believe the blatant abuse of process that is unfolding before my eyes in this courtroom.

You are free to republish this article, including in translation, without further permission. A brief note left in comments below detailing where it is republished is appreciated.

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LIVE: Assange extradition hearing – day 3

LIVE: Assange extradition hearing – day 3

This is a live stream outside the Old Bailey Central Criminal Court in London on Wednesday, September 9.  This is the third day of the Julian Assange extradition trial.

The hearings come months later than initially planned due to the coronavirus pandemic. According to his supporters, Assange is in poor health and has been under threat of contracting the virus in prison, where infection cases have been reported.

The WikiLeaks founder has been behind bars in Belmarsh Prison since he was dragged out of the Ecuadorian Embassy in April 2019. He faces multiple charges in the US related to espionage.

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Julian Assange is not on trial for his personality – but here’s how the US government made you focus on it

By drawing attention away from the principles of the case, the obsession with his character pushes out the significance of WikiLeaks’ revelations

 

By Noam ChomskyAlice Walker - 09. September 2020

On Monday Julian Assange was driven to the Old Bailey to continue his fight against extradition to the United States, where the Trump administration has launched the most dangerous attack on press freedom in at least a generation by indicting him for publishing US government documents. Amid coverage of the proceedings, Assange’s critics have inevitably commented on his appearance, rumours of his behaviour while isolated in the Ecuadorian embassy, and other salacious details.  

These predictable distractions are emblematic of the sorry state of our political and cultural discourse. If Assange is extradited to face charges for practising journalism and exposing government misconduct, the consequences for press freedom and the public’s right to know will be catastrophic. Still, rather than seriously addressing the important principles at stake in Assange’s unprecedented indictment and the 175 years in prison he faces, many would rather focus on inconsequential personality profiles.

Assange is not on trial for skateboarding in the Ecuadorian embassy, for tweeting, for calling Hillary Clinton a war hawk, or for having an unkempt beard as he was dragged into detention by British police. Assange faces extradition to the United Statesbecause he published incontrovertible proof of war crimes and abuses in Iraq and Afghanistan, embarrassing the most powerful nation on Earth. Assange published hard evidence of “the ways in which the first world exploits the third”, according to whistleblower Chelsea Manning, the source of that evidence. Assange is on trial for his journalism, for his principles, not his personality.  

You’ve probably heard the refrain from well-meaning pundits: “You don’t have to like him, but you should oppose threats to silence him.” But that refrain misses the point by reinforcing the manipulative tropes deployed against Assange.  

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When setting a gravely dangerous precedent, governments don’t typically persecute the most beloved individuals in the world. They target those who can be portrayed as subversive, unpatriotic – or simply weird. Then they actively distort public debate by emphasizing those traits.  

These techniques are not new. After Daniel Ellsberg leaked the Pentagon Papers to journalists to expose the US government’s lies about Vietnam, the Nixon administration’s “White House Plumbers” broke into Ellsberg’s psychiatrist’s office in search of material that could be used to discredit him. NSA whistleblower Edward Snowden was falsely portrayed as collaborating with the Chinese, then the Russians. Obsession with military intelligence analyst Manning’s mental health and gender identity was ubiquitous. By demonizing the messenger, governments seek to poison the message.  

The prosecution will be all too happy when coverage of Assange’s extradition hearing devolves into irrelevant tangents and smears. It matters little that Assange’s beard was the result of his shaving kit having been confiscated, or that reports of Paul Manafort visiting him in the embassy were proven to be fabricated. By the time these petty claims are refuted, the damage will be done. At best, public debate over the real issues will be derailed; at worst, public opinion will be manipulated in favour of the establishment.  

By drawing attention away from the principles of the case, the obsession with personality pushes out the significance of WikiLeaks’ revelations and the extent to which governments have concealed misconduct from their own citizens. It pushes out how Assange’s 2010 publications exposed 15,000 previously uncounted civilian casualties in Iraq, casualties that the US Army would have buried. It pushes out the fact that the United States is attempting to accomplish what repressive regimes can only dream of: deciding what journalists around the globe can and cannot write. It pushes out the fact that all whistleblowers and journalism itself, not just Assange, is on trial here.

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This piece was written by Noam Chomsky and Alice Walker, co-chairs of AssangeDefense.org

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A victory for the US government in the Assange case would “criminalise every journalist

A victory for the US government in the Assange case would “criminalise every journalist

A victory for the US government in the Assange case would “criminalise every journalist,” a press freedom expert has told a court.

The testimony came in the third day of the Julian Assange extradition case

After a delay due to technical issues, proceedings resumed at the Julian Assange extradition hearing this afternoon to hear evidence from a defence witness, Trevor Timm, via videolink from the USA.

Timm, the founder of the Freedom of the Press Foundation told the court there have been numerous attempts by the US government to use the Espionage Act against journalists and none have ever been successful. He told the court that in his opinion this prosecution would mean that any journalist in possession of classified information could be arrested.

He stated that if the charges being applied to Assange had been in place in the 1970s, Watergate reporters Woodward and Bernstein could have been thrown in jail, adding that if asking a source for classified information is espionage then the secure “dropbox” systems used by over 80 publications worldwide to encourage whistleblowers to send them information would also be illegally “soliciting classified information,” which is one of the charges against Assange.

Timm told the court “I myself have advocated for leaks in cases where the US secrecy system is hiding abuse, corruption, or illegal acts and no-one has ever suggested I was committing a criminal act.”

Rising to cross-examine, James Lewis QC for the US Government, as he has with every defence witness so far, challenged Timm’s status as an “expert witness,” noting that his organisation had contributed $100,000 to Assange’s legal costs, so he could not be considered to be objective given this conflict of interest.

Lewis then told the court that the prosecution “do not regard Julian Assange as a journalist.” Timm replied that it is not up to the government to decide who is a journalist as “it is the right of everyone,” and that Assange was clearly “engaged in journalistic activities.” The prosecution QC then pointed to a US Justice Department statement that Assange was not being prosecuted for publication of classified material, Timm replied that he made his judgement “based on the facts, not US government press releases.”

After counsel suggested to Timm he hadn’t seen all the evidence in the case, he replied that if there was secret evidence that had not been released he clearly hadn’t.

Asked about the Wikileaks publication of unredacted names of Iraqi and US informants by WikiLeaks, Timm responded that he had never said WikiLeaks had perfect editorial judgement, any more than the Guardian or New York Times have, but if bad judgment is criminal many other publications would be under threat adding, “It shouldn’t be up to the US government to decide if an editorial judgment is criminal.”

Timm continued, “The 1st Amendment is not a balancing act, it also covers unpopular speech, or touches on subject matter that makes some us uncomfortable.” Lewis asked the witness, “Are you a lawyer? What expertise do you have to give legal advice?”

Timms replies that he graduated from law school in 2008 and was called to the New York Bar,” but later decided to run a non-profit organisation instead.

The prosecution barrister quickly moved on.

The witness was then asked why he was ignoring the fact that US prosecutors were bound to act in a non-political way, Timm replied that Trump’s hostility to journalists is well known and that a number of US prosecutors had refused to get involved in this case due to the 1st amendment issues involved.

There was then a heated discussion when the defence rose to say that Lewis has reached his time limit of one hour.

He vehemently objected to this and argued with both the defence and the judge, until judge Baraitser said he could have more time. The prosecutor then said that he “had finished anyway,” and ended his cross-examination.

The trial continues.

Follow us on Twitter for live updates on the proceedings: @bridges4media

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supporters gather outside