Assange Court Report September 15: Afternoon
Julian Assange would not get a fair trial in the United States, a court has heard.
The testimony, from long-serving American federal attorney Thomas Durkin, came on the 5th day of evidence in the WikiLeaks founder’s extradition hearing in London. Responding to questions, Durkin also said he strongly suspected that the prosecution was politically motivated and that the new indictment laid against Assange last month represented a “quantum leap,” in the seriousness of the case.
Under questioning from defence counsel Edward Fitzgerald QC, Durkin told the court that in any US trial involving classified information lawyers can only access information in a secure setting for which they need security clearance, adding that he thinks it’s unlikely Julian Assange would be granted clearance by the US government. He also said that it was unlikely Assange’s lawyers would even be allowed to discuss classified information with their own client.
On the issue of a possible sentence, Durkin, who is a former US Assistant District Attorney, said that if the defendant was convicted at trial he would expect him to receive between 38 and 45 years, agreeing that given Assange’s age this would amount to an effective whole life sentence, which he described as “draconian.” He said that in US courts judges can take into account conduct a defendant is not even found guilty of and even issues he has been acquitted of, under the rule of “aggravation.”
Asked about the possibility of Assange pleading guilty and receiving a shorter sentence, the veteran lawyer replied that any plea bargain would mean Assange “fully cooperating,” with the US government which would involve him revealing all his sources of information.
Cross-examined by prosecution lawyer James Lewis QC, who questioned his original testimony, the witness said it “was very clear to him,” that the Obama administration made a decision not to prosecute Mr Assange, saying he “doesn’t give a lot of credence,” to the argument it was not as there were very good reasons it was not taken up in the first place. He added that he was firm in the view that the Trump administration ordering the case to be re-opened was clearly a political decision.
Asked how much he was paid to write the two defence reports he has produced, the witness replied “only if the judge redacts it, so my other clients don’t find out how little I’m charging in the case,” which led to laughter in court.
Assange Court Report September 15: Morning
Trump wants Assange jailed and kept quiet, court told.
A witness at the Julian Assange extradition case in London has testified that the prosecution of Julian Assange is part of a Donald Trump effort to distract attention from the help WikiLeaks gave him during the election, “He wants to put Assange in jail and keep him quiet,” he told the court.
Eric Lewis, a US attorney, was giving his third day of evidence in the case, which has been marred by numerous technical issues with his trans-Atlantic video link.
The lawyer testified that he believed political pressure was put on US district attorneys to prosecute Assange, citing a New York Times article which quotes a “senior official,” saying just that. Asked if US prosecutors were not immune to political pressure, he read out a quote from President Trump, “I can do what I want with the Justice Department,” adding that current US Attorney General, Bill Barr, saw himself as “the hand of the President.”
Lewis told the court that “all the facts were out there by 2012,” no-one has ever said that the facts had changed, yet the Trump administration suddenly decided to prosecute.
Asked by the prosecutor what qualifications he had in political affairs to make this statement, the witness replied that he has a degree in Public and International Affairs from Princeton University.
Before being cross-examined by his namesake, James Lewis QC, who is acting for US government, the witness cleared up the mystery of why his feed was interrupted yesterday by an apparent clip from US Fox news suddenly appearing on the screen, which had led to social media claims that he had been hacked. The witness explained that he had been trying to access a document on his own computer and the clip had been embedded in it and had accidentally played.
The prosecutor took issue with the witness’s earlier testimony that Mr Assange faced 175 years in prison if extradited to the United States on espionage charges over publishing classified government documents on the website he founded, WikiLeaks.
The prosecution suggested that only a tiny percentage of offenders in America received the statutory maximum sentence, quoting US government sentencing guidelines in their support.
They also cited the case of a former CIA agent, Jeffrey Sterling, an American lawyer and former CIA employee who was arrested, charged, and convicted of violating the Espionage Act for revealing details about an “Operation Merlin,” to journalist James Risen. Sterling, the prosecution said, had faced a sentence of 130 years, but after his conviction was only jailed for 42 months. Lewis replied, “But there has never been a case like this.”
The prosecution then moved onto to the issue of freedom of speech and national security, arguing that there were certain pieces of information that if leaked could jeopardise the security of the nation, Lewis replied that this applied to issues like publishing the date troop ships would be leaving port in wartime, but none of this applied to the actual information released by Wikileaks which, he said, exposed war crimes in both Iraq and Afghanistan. He said the reason the Obama administration had decided not to prosecute Assange was what he called the New York Times problem, the Justice Department then had concluded that there was no way to prosecute him for publishing classified information without the same theory being applied to many other journalists. However, he said, the Trump administration had ignored this in a rush to prosecute Assange.
The witness also told the court that, if extradited, Mr Assange could face up to three years on remand before even facing a US court.
Assange Court Report September 14: Afternoon
Proceedings grind to a halt
The fourth afternoon of evidence due to be heard in the London extradition case against Wikileaks founder Julian Assange were halted today due to persistent technical problems with a transatlantic video link.
Just before the lunch interval the video feed of US lawyer, Eric Lewis, who was appearing for defence, was suddenly interrupted by what appeared to be a recorded Fox News story about the case, and court quickly adjourned.
When we returned at two o’clock, the media were told that the system was down, and despite the efforts of technical staff it could not be repaired that day. Court finally adjourned again until 10am tomorrow
There was some speculation on social media that this may have been a result of computer hacking, however the UK Ministry of Justice is understood to have denied that was the case.
The trial continues
Assange facing solitary confinement in the US, court told.
If extradited to America, WikiLeaks founder Julian Assange could face up to 175 years in prison and be subjected to draconian, “Special Administrative Measures,” a court has heard.
Appearing as a witness for the defence at the fourth day of the hearing at London’s Central Criminal Court, US lawyer Eric Lewis said that the investigation of Mr Assange was the one of “the largest FBI operations in history,” and that it was, in his view, “an abuse of the criminal investigative power,” adding that until now, “No publisher has ever been successfully prosecuted for publishing national security information, never.”
The witness told the court that while the Obama administration had made a decision not to prosecute Assange in 2013, this had been reversed in 2017 after President Trump had taken office. He quoted a speech by US Secretary of State Mike Pompeo in which he said “Assange and his ilk, seek personal self-aggrandizement through the destruction of Western values.” and that “that Assange was “a “narcissist” and “a fraud — a coward hiding behind a screen.”
Asked about “Special Administrative Measures,” Lewis said these included a prisoner being shackled, and not allowed to mix with anyone else, even exercise happens late at night so the prisoner remains isolated, he said. He also noted that a prisoner’s visits from lawyers were monitored by the US government saying, “Legal visits were monitored, recorded. We were told that audio wasn’t recorded but we weren’t certain, told that the team monitoring the recordings wasn’t the same as the prosecution team, but I’ve seen too many cases where that is not the case.”
Challenged by US government counsel about his knowledge of prison conditions the witness replied, “I spend more time in them than I care to remember, visiting clients,” He also noted he had a degree in Criminology from Cambridge University. Lewis noted that Assange’s case is unique, as he will be seen as a national security risk prisoner. He also said that while there was a process over when special administrative detention was imposed, “there is no way to challenge it.” He also noted that Assange’s mental health makes him “particularly vulnerable,” to the effects of special administrative detention and that under that regime prisoners are not even allowed to watch news programmes, but only television chosen and approved by the prison authorities.
Asked by the prosecution if these decisions could not be challenged, Lewis replied that he knew of no case in history that had managed to reverse a decision to put a prisoner on special administrative measures.
Earlier, prosecution barrister James Lewis had made a complaint to the judge that he was being limited in the time he had been allowed for cross-examining defence witnesses, saying “this has never happened to him before in any court.” The presiding judge Vanessa Baraitser replied by saying that there were 39 witnesses so she had no choice but to manage how much time each one takes. “That’s the end of the matter, Mr Lewis,” she said.
The trial continues.
September 9, 2020
Professor Paul Rogers on Trump’s politically motivated prosecution
Paul Rogers, Emeritus Professor of Peace Studies at Bradford University, took the stand by video link to testify about Julian Assange’s political views and how they factor into the Trump administration’s prosecution of Assange for publishing.
Rogers reviewed Assange’s speeches, including an anti-war speech in 2011 in London and a speech to the UN following the release of Iraq and Afghan war logs, as well as Mairead Maguire’s nomination of Assange for the Nobel Peace Prize in 2019. LINKs. Rogers concluded that Assange’s views don’t fall into traditional liberal or conservative belief systems but are rather more libertarian, anti-war, and based on values of transparency and accountability.
On the stand, Rogers talked about how WikiLeaks put these values into practice with the war logs publications, and he contextualized the releases with changing opinions in America regarding the wars in Iraq and Afghanistan:
“Possibly the most important part of the whole thing,” he said, was that WikiLeaks’ releases showed 15,000 previously uncounted civilian casualties, “bringing to the American public a very disturbing aspect of the whole war.”
As Rogers puts it in his statement,
The political objective of seeking to achieve greater transparency in the workings of governments is clearly both the motivation and the modus operandi for the work of Mr Assange and the organisation WikiLeaks. Its manifestation, as is set out in the study by Professor Benkler, has constituted a wholesale alteration of accessing and making available for public information, the secrets that governments wish to remain unknown to their general populations. The subject matter of the charges Mr Assange currently faces involve strong examples of the clash of these positions both in their content and scope, and in the reaction of government.
In his oral testimony, Rogers explained that these views and motivations put him in contrast with successive U.S. administrations but particularly in contrast with the Trump administration.
It is clear that Assange is being opposed because of the success of WikiLeaks in bringing information to the public, he said. This is dangerous to the Trump administration: “the root of it is that Assange and what he stands for represents a threat to normal political endeavor.” In addition to opposing Assange’s words and views, the fact that Obama didn’t prosecute should to some extent be considered in why Trump is prosecuting.
Prosecutor James Lewis QC sought to undermine Assange’s political views by bringing up his views on corporations and NGOs, but Rogers explained that “political opinion” isn’t just about government leaders, that the definition of political opinion has changed significantly in the last 50 years, and that Assange has a view on “transnational elites.” Asked if simply being a journalist necessitated political opinions, Rogers explained that it’s a complex question, that deciding what to publish and what not to constitutes a political opinion, but Lewis complained that his answers were too long, not yes or no.
Lewis further sought to portray Rogers as biased toward Assange and the defense. He asked why Rogers didn’t include in his statement, in which he referenced views of other experts like Noam Chomsky and Carey Shenkman, the views of assistant U.S. attorney Gordon Kromberg, which defended the prosecution of Assange as a criminal matter, not a political one.
Rogers responded that he takes it as read that federal prosecutors at the lower level act in good faith, that they do as they’re instructed in accordance with the law, but that the wider political context — namely that the Obama administration didn’t prosecute and the Trump admin did, and the Trump administration represents a marked shift in the U.S. political situation — far outweighs the statements of a U.S. attorney.
The prosecution then suggested that the Obama administration may not have prosecuted Assange because he was in the Ecuadorian Embassy at the time:
Lewis: Was it possible to arrest Mr Assange in 2013?
Rogers: Is it necessary to be able to arrest someone to bring a prosecution?
Lewis: What would be the point if he’s hiding in the embassy?
Rogers: Well, to put pressure on him. It would have made very good sense to bring it at that time, to show a standing attempt to bring Mr Assange to justice.
Lewis reviewed the same items as he did with Feldstein yesterday, including WikiLeaks’ lawyer and editor suggesting they still believed charges were possible, but again and again Rogers brought the discussion back to the wider context, and the fact that the Trump administration’s views more broadly have to be considered. Statements by then-CIA director Mike Pompeo, then-Attorney General Jeff Sessions and others have to be part of the determination. Rogers also referenced Obama’s commutation of Chelsea Manning’s sentence. The Trump administration wasn’t happy about that, but a commutation can’t be reversed by a subsequent administration, so this could be Trump’s way of responding to that.
Rogers hammered home that by calling this a “politically motivated prosecution,” he isn’t saying that lower-level federal prosecutors are acting in bad faith. Rather, he said, the influence comes from the top down.
Court is in recess for lunch. Trevor Timm of the Freedom of the Press Foundation will testify after the break.
Trevor Timm: These charges would ‘radically rewrite’ the First Amendment
Founder of the Freedom of the Press Foundation, which advocates for reporters’ rights and tracks violations to press freedom across the United States, Trevor Timm took the stand by videolink this afternoon to talk about the dangers the indictment against Assange poses to journalists and their sources.
Timm objects to the indictment on the grounds that it threatens to criminalize source protection and the passive receipt of government documents as well as pure publication. He concluded that “It would be a radical rewrite of the First Amendment if the government were to go forward with these charges.”
Protecting your sources
As Timm writes in his statement,
“The decision to indict Julian Assange on allegations of a “conspiracy” between a publisher and his source or potential sources, and for the publication of truthful information, encroaches on fundamental press freedoms.”
Freedom of the Press Foundation has helped many news organizations adopt SecureDrop, an anonymous and secure submission system for sources to safely send documents to journalists undetected. While a largely unused practice when WikiLeaks pioneered it before 2010, major news outlets around the world make use of SecureDrop, and some of them explicitly ask for leaks of government documents.
The way this indictment is written, particularly the charge alleging Assange engaged in a conspiracy with source Chelsea Manning to crack a military computer password in order to remain anonymous, would make this extremely common news gathering illegal. “I don’t think it’s an exaggeration to say this indictment would criminalize national security journalism.”
“Materials journalists often write about and print do not magically land on their desks,” he said. They talk to sources, ask for clarification, ask for more information. “This is standard practice for journalists.”
News outlets and press freedom observers agree. Timm said,
“This is almost a consensus opinion among press freedom groups and media lawyers who have looked at this indictment. This is why newspapers, even those who have criticized Mr Assange, have condemned this indictment.”
Espionage Act: over-broad and over-used
Beyond the effort to criminalize source-protection and news gathering, Timm is extremely concerned about the other charges in the Assange indictment under the Espionage Act of 1917. Some charges criminalize publishing and for soliciting information, and some of the charges are even more broad. “Just the mere thought of obtaining these documents,” Timm said, “the US government is saying is potentially criminal.”
Timm discussed previous efforts to go after journalists under the Espionage Act, efforts which have failed under legal scrutiny. “In each and every case,” Timm said, “the government concluded or was forced to conclude” that an Espionage Act prosecution would violate First Amendment protections, including the Obama administration’s’s 2013 determination not to prosecute WikiLeaks.
Each Espionage Act charge carries 10 years in prison, allows no public interest defense, and only requires the government prove harm could “possibly” have been caused by leaking or publishing.
James Lewis QC, cross-examining Timm for the prosecution, highlighted Timm’s claim in his witness statement that Trump is waging a “war on journalism.” He sought to undercut the claim by pointing out that the U.S. Department of Justice has explicitly said that they do not consider Assange to be a journalist and that they aren’t going after journalists.
Timm responded, “In the US, the First Amendment protects everyone. Whether you consider Assange a journalist doesn’t matter, he was engaging in journalistic activity.”
Lewis tried again, emphasizing that the DOJ specifically went “out of its way” to say they don’t target journalists.
“My opinions are not based on a Justice Department press release but on what is actually contained in the indictment. There are several charges that deal with the mere fact that WikiLeaks had these in their possession. You say there are three charges dealing with publication just of documents with unredacted names, but the rest of the charges deal with all of these document sets, and this criminalizes journalism.
The aspect of criminalizing publication worries me greatly, but there are many other charges that are as worrying or more so, that could criminalize journalistic practice whether you consider Mr Assange a journalist or not.”
Lewis tried to get Timm to comment on the 2011 unredacted publication of the State Department cables, but Timm made clear that whether WikiLeaks has “perfect editorial judgment” shouldn’t matter as to whether the action is illegal. Furthermore, he said, “I certainly don’t think the US Government should be the one to determine whether this was good editorial judgment.”
Trump: Modern-day Nixon
“Trump has the most confrontational approach to the media since Nixon,” Timm said. He referenced Trump tweeting 2,200 times about the press, including calling them the “enemy of the people.” Timm said, “This case is the perfect opportunity for him to create a precedent to punish the rest of the media.
“To me it’s very telling that Trump’s is the first one to try to bring a case like this since the Nixon administration.”
September 8, 2020
Clive Stafford-Smith explains using WikiLeaks docs in legal cases
Clive Stafford Smith, a U.S.-U.K. dual national and the founder of Reprieve, which defends prisoners detained by the U.S. at Guantánamo Bay and others in secretive detention localities around the world, testified about the importance of WikiLeaks material in their litigation. He first discussed the utility of WikiLeaks disclosures in litigation in Pakistan relating to drone strikes and the “seachange” in attitudes towards US drone strikes in Pakistan.
Regarding rendition, assassinations, torture exposed in WikiLeaks documents, Stafford-Smith said, “Speaking as a U.S. citizen, it is incredibly important that it stopped … I feel that my country’s reputation was undermined and criminal offenses were taking place.”
“The litigation in Pakistan would have been very, very difficult and different” if it weren’t for WikiLeaks disclosures.
“The most disturbing thing is that the assassination program with respect to terrorists leaked over to narcotics….they were targeting people for death for their involvement in drug trade because it was seen as funding terrorism. I could go on…”
Assassination programs “are not only unlawful but morally and ethically reprehensible,” he said, and journalists being targeted in war zones by the US is “deeply troubling, a monumental criminal offense.”
The defense questioning then turned to the importance of WikiLeaks releases on Guantanamo.
“It is difficult and hostile sometimes – this is one of the cases I have received death threats for representing these people…but your problem is always two-fold, the prisoners in Guantanamo don’t know what they are charged with….second, unfortunately people never get to meet prisoners in Guantanamo and judge their credibility, so proving what happened involved more than just saying it but travelling round the world and gathering proof”
Stafford-Smith explained that it’s complicated as to whether the GTMO releases are positive or negative in his view:
“Those leaks are the very worst that the US authorities confect about the prisoners I have represented. But on the other hand, they are really important because the world didn’t know the allegations that were being made against my client.”
The best example I am able to give you,I was frustrated when I first read those WikiLeaks documents because I thought they would leak what I get to see….what was useful was the 13 pages that the US government alleged against my client, which up until that point I couldn’t discuss it with anyone, and finally I was able to declassify their assertions and prove that each of their allegations was total nonsense. No one has been ordered for release in America but it was certainly helpful to be able to disprove it.”
“I found it immensely frustrating that the world didn’t know about the unreliability of the evidence against my clients…what others have done by taking the WikiLeaks documents, and I credit here Andy Worthington, is to analyze the number of times certain informants were the named basis for detaining prisoners.”
“While it is important representing the client, and it doesn’t show the world what is actually going on there. My experience with Guantanamo is that if we can open it up to public inspection to see what is really happening there, then they will close it down because its just not what it is advertised as.”
“I say this more in sadness than in anger. Before 2001, I would never have believed that my government would do what it did. We are talking about criminal offenses of torture, kidnapping, rendition, holding people without the rule of law and, sad to say, murder.”
On enhanced interrogation techniques:
“I have had a project of comparing the methodologies that my government uses on my clients to what they used in Spanish Inquisition…hanging people by the wrist while their shoulders slowly dislocate….the first thing I do is to apologize.”
“As you go through the documentation Wikileaks leaked, there are all sorts of things identified, including where people are taken and renditioned…and that was the case in Binyam’s case.”
Clive Stafford-Smith says WikiLeaks and those associated could be subjected to U.S. sanctions under the new ICC sanctions regime because of the role Wikileaks has played in the accountability efforts of U.S. officials involved in war crimes.
“To threaten and impose sanctions is unlawful, and what you are doing here today could justify sanction under the terms of the Executive Order.”
Anyone can be sanctioned who is seeking to assist in an investigation which could lead to ICC investigation, which is what Wikileaks does, so that is covered by the US sanction regime.”
Prosecution cross-examination misleads on the charges
U.S. prosecutor James Lewis repeatedly tried to get Stafford-Smith to concede that none of the WikiLeaks cables mentioned in his witness statement are the subject of charges. Lewis is trying to establish that the indictment of Assange only deals with cables that name specific names of informants. But the defense points out that the prosecution is incorrectly stating that there is no reference to publishing – Assange is in fact being charged for “communicating” and “obtaining” classified information, and these charges capture all the documents, not just specific cables referenced in the pure publication counts.
Furthermore, Stafford-Smith repeatedly explained to the prosecutor that Lewis doesn’t understand how the U.S. prosecutes these cases — just because they aren’t in the indictment they will be used against him. Lewis kept saying that he’s only charged with naming names so the other cables released are irrelevant.
Fed up with this back and forth, Assange himself spoke from the dock to say, “This is nonsense,” the US pretense that he’s not being charged with publishing classified information, just naming names, is “nonsense.”
“Apparently my role is to sit here and legitimate what is illegitimate by proxy,” Assange said.
The judge interrupted Assange to reprimand him for speaking out of turn.
“I understand of course you will hear things most likely many things that you do not like and you would like to intervene but it is not your role.
“Your remaining in court is something the court would wish for. But the court could proceed without you.”
The prosecution closed its cross-examination by citing David Leigh’s book with reference to Assange’s comments on informants, asks if Stafford-Smith agrees with Leigh’s or Assange’s view of informants. Stafford-Smith says he wouldn’t judge anyone based on a book.
Feldstein gives historical context for WikiLeaks’ journalism
Journalism professor Mark Feldstein took the stand to continue his testimony which began yesterday, picking up where he left off on the long history of journalists using classified information in their reporting.
Feldstein confirmed that soliciting information is “standard journalistic behavior.” When teaching journalism, Feldstein talks about asking sources for evidence, actively seeking information, working with them to find documents that are newsworthy, and directing them as to what to find out. “It’s all routine,” he said.
Also routine are efforts to conceal sources’ identities. “Trying to protect your source is a journalistic obligation” Feldstein said, adding, “We use all kinds of techniques to protect them, including payphones, anonymity, encryption, removing fingerprints from documents, reporters do this all the time.”
Later, the prosecution would attempt to draw substantial differences between the New York Times and WikiLeaks, suggesting journalists don’t steal or unlawfully obtain information. While agreeing that journalists are not above the law, Feldstein says that it’s a “slippery slope” as to what constitutes “soliciting” information.
“We journalists are not passive stenographers,” he said. “To suggest receiving anonymously in the mail is the only way is wrong.”
Asked if he himself has published this type of information, he said, “Yeah, I didn’t publish a lot of classified documents but my entire career virtually was soliciting and publishing secret information.”
On the question of allegations that publishing names necessarily causes harm, Feldstein said that it’s easy for the government to claim possible harm because it’s impossible to prove. “Scant evidence that national security is harmed” by government disclosures, he said, and “national security is often used as a shield to hide” embarrassing or bad actions.
Feldstein used the Pentagon Papers as an example, where the government prosecutors at the time went to court alleging that these documents exposed war plans, identified CIA officials, and could even prolong the war. Prosecutors told the court that it would cause “immediate and irreparable harm,” and only years later did one such prosecutor admit he saw no harm from the releases. But why lie at the time? We now know that President Nixon himself instructed his attorney general to smear the New York Times as “disloyal,” in any way he could.
The Trump administration’s “politically motivated prosecution”
The prosecution made repeated efforts to characterize the investigation into WikiLeaks from 2010 to 2020 as one ongoing case, which just happened to finally result in charges with President Trump in power. But Feldstein testified to his view that the Obama administration explicitly decided not to prosecute Assange, citing this 2013 article on the Obama administration deciding not to prosecute, whereas “everything changed” under the Trump administration.
The 2013 piece begins, “The [Obama administration’s] Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists.”
In 2017, by contrast, the FBI wanted a “head on a pike”, President Trump wanted journalists in jail, then-CIA director Mike Pompeo called WikiLeaks a “non-state hostile intelligence agency”, and then-Attorney General Jeff Sessions made Assange’s arrest a “priority.”
Even in this administration, the decision was controversial. This 2019 Post article explicitly names James Trump and Daniel Grooms as federal prosecutors who disagreed with prosecuting Assange under the Espionage Act, because it was “so susceptible to First Amendment and other complicated legal and factual challenges.”
The prosecution attempted to show that WikiLeaks, Assange and his lawyers believed charges were still coming, but Feldstein said that while of course lawyers would protect their client, and while WikiLeaks would likely always fear charges, the “proof is in the pudding” that the Obama admin did not bring charges and Trump did, with no new evidence coming forward in between.
In answering closing questions, Feldstein was very clear as to why he believed the prosecution of Assange was politically motivated, citing several reasons: the unprecedented scope of these charges, the fact that a prosecution was rejected by the Obama administration, the framing of the superseding indictment, and President Trump’s “known vitriol toward the press.” Finally, he said, the only attempts to prosecute journalists in the past were “obviously highly political.”
The prosecution suggested Feldstein was speculating and returned to the idea that names published in the documents would cause harm and an objective grand jury could see that. Feldstein responded that if that was the real intention, the U.S. could have indicted Assange under the much narrower Intelligence Identities Protection Act of 1982, which criminalizes the exposure of certain intelligence figures.
Expanding on the dangers of this broad scope in the indictment, Feldstein said, “recruiting and conspiracy are scary terms, used for terrorists.” By contrast, journalists direct sources, say what they need, send back for more information. “So if that becomes criminalized, if that becomes conspiring, then most of what investigative journalists do would be criminal.”
Assange has been re-arrested, the previous extradition warrant has been withdrawn and the new warrant has been served.
NGOs access to Assange hearing revoked
Judge Vanessa Baraitser then announced that some 40 individuals were granted remove (video) access to the proceedings by mistake, and their access has been revoked. Courage has learned that those whose access was rescinded include representatives from Amnesty International and PEN Norway.
“I know that others are attending this hearing remotely and in an adjacent courtroom. I am allowing this to take place for social distancing and technology allows us to watch this remotely. Those who attend remotely are still bound to the usual rules relevant to court hearings. I remind you that it is a criminal offense to record or broadcast any part of this hearing, including screenshots on any device. As you know I am aware that a photograph has been taken of Mr Assange inside court and shared on social media in breach of these rules.
I have received a list of 40 people who wish to attend this remotely by cloud. This is something I can consider but only after I have received an application. I have granted a number of remote access to lawyers and a small number of people including lawyers who have acted for Mr Assange in closely related proceedings. In error, the court sent out to others who had sought access. During this pandemic, there have been changes about how people can access proceedings. I remain concerned about my ability to maintain the integrity of the court if they are able to attend remotely. Normally, I can see what is happening in the court room to ensure the integrity of courtroom is maintained. Once livestreaming takes place, the court cannot manage this breach even less when the person is outside the jurisdiction. I want to make it clear that the public interest and allowing remote access is unlikely to meet the interests of justice tests. There are many jurisdictions allowing travel to the UK during COVID, so lessening restrictions on travel. For those who consider they still not travel to the UK to attend the hearing, then they need to apply again and I will consider it.
I have regretfully refused the current remaining applications for access to the cloud access.”
WikiLeaks editor-in-chief Kristinn Hrafnnson explains that parliamentarians were denied access as well.
Debate over whether witness statements will be read in court
The defense has asked that the witnesses be permitted to be taken through their witness statements so that the court, Assange and the public will hear the evidence in full before cross examination starts. “To plunge into cross examination would not assist yourself, the public or Mr Assange and would not be fair.”
Prosecutor James Lewis QC opposes this, saying it is contrary to Divisional Court jurisprudence and that it would allow witnesses to give additional evidence beyond their written statements and require constant adjournments to allow the prosecution to consider the evidence given on the stand before cross examination can begin.
The judge decides,
“Each of the witness statements will be made public. Mr Assange has been given a copy of those witness statements. In my view there is no benefit whatsoever to allowing the witnesses give evidence in chief. I will give the witnesses time to settle and orientate themselves and will allow no more than 30 minutes.”
Superseding indictment comes well after proceedings were underway
Six months after opening submissions, 18 months before this hearing started and a matter of weeks before the matter was listed, the US announced a new indictment.
Defense counsel Mark Summers QC says,
“It is a curiosity that the US had, in previous hearings, been content for the hearings to go ahead in February and in May, presumably knowing that this was coming.”
It wasn’t immediately obvious what had changed. Of course the conduct outlined in it, but as far as the charges in it, it was difficult to discern what was going on….
“It became clear to everyone on 21 August, just over 2 weeks ago, whether or not we were justified in thinking the charges had changed. The material was expressly now not just background material but was being put before you as potential standalone basis for criminality, that is to say, that even if the US court rejects in their entirely the existing Manning allegations, Mr Assange can be extradited and potentially convicted for this conduct on its own and this is a resounding and new development in this case. The reason I am on my feet is of course the timing of this development.”
The defense also putlined the various other criminal allegations now included in the new indictment – including assisting a whistleblower attempting to evade arrest (Snowden).
“It would be extraordinary for this court to be beginning an extradition hearing in relation to allegations like that within weeks of their announcement without warning and even more extraordinary to do in circumstances where the defendant is in custody.”
To remedy this issue, the defense proposes the court excise the new conduct alleged in the newest indictment. “It impossible for the defense team to deal with the allegations being put to him and in relation to material for which you have been provided no explanation for their late arrival.”
“It is fundamentally unfair to introduce separate criminal allegations, without notice, without time to prepare evidence, where the defense cannot properly deal with the new aspects of the case.”
“What is happening here is abnormal, unfair and liable to create real injustice if it is allowed to continue.”
“The appropriate course is for the court to exercise its powers to excise the new allegations.”
Judge refuses to excise new conduct alleged in newest indictment
Judge Baraitser says the defense should have asked for more time despite Assange still being in custody. If conduct is to be excised, she says, it must be in context of a statutory bar or abuse of process argument. The judge refuses the defense proposal to excise any new conduct in the newest superseding indictment.
Defense requests adjournment
In light of the judge’s refusal to excise the new conduct alleged, the defense asks the court for an adjournment until January.
“This is an application that we do not make lightly because Mr Assange will bear the brunt of the consequences of it. In light of your ruling, we do apply for an adjournment to allow us to gather the evidence that we need to answer the new allegations.”
We have not been able to answer the allegations which have only been made in the last few weeks. This has been made worse because of the conditions we are all having to work under.
“I can say without fear of contradiction that no one in this case has been involved in a case of this magnitude dealing with the gathering of evidence at this late stage of the process.”
The defense explained why they haven’t made this application before today’s hearing:
“First, throughout that period, Mr Assange had not seen the new request. I have mentioned more than once that the only way he gets to see documents is by posting documents into Belmarsh. We have not had opportunity to meet and consult with him. He still hasn’t received, for example, the revised opening note and the documents which accompanied it and it was that document that made clear that we were dealing with conduct that was mere narrative as we had believed it to be but was standalone criminality capable of sustaining a conviction if accepted in its own right. Instructions taken from Assange on that basis could only have commenced on 21 August, which was last week, and we took the view that we had the ability to first apply to exclude that material. We have recognized that the solution, if there is one, is adjournment.
I could of course appraise you with more detail of the difficulties the defence team has been operating under the past few months.”
Acknowledging that they haven’t seen their client in person, the judge asks if the defense has been able to speak to Assange by phone. They respond yes, but only twice in very short conversations:
“It is not easy and even coherent on the phone. I don’t want to belabor the difficulties we have had in communicating with our client in the past week, but they have been very significant in the time period you are concerned with. He was, in essence, over that unsatisfactory medium, he was having to take in information from us on – any view – complex documents and to make him aware of the issues and to take a decision on them.”
The defense explained there is no videolink, only these short, difficult conversations by phone. The judge adjourned for 10 minutes to consider the defense’s application.
Judge denies defense request for adjournment
The judge says the defense had time to apply to adjourn previously and they did not do so. Rejecting the defense’s reasoning for applying now, she says she ruled not to excise new conduct now but this can’t have come as a surprise and the defense should have acted as if we would proceed. Judge denies defense application to adjourn.
Journalism professor begins testimony
Mark Feldstein, journalism historian and professor at the University of Maryland, gives testimony. See his witness statement here as to his determination that what Assange and WikiLeaks practice is journalism: Mark Feldstein witness statement
Feldstein testifies to the ubiquity of leaks of classified information:
“There are so many of them – thousands upon thousands – it is routine; every study in the last 60 years has said the leaks of classified information inform the public about government decision making but they also evidence government dishonesty….and they go back to George Washington’s presidency.”
Some journalists make a career of this?
Feldstein says, “Yes, Pulitzer prize winners and some of the most respected journalists in the nation.”
Would you expect publishers to be prosecuted for this criminal conduct?
“Well no…because the First Amendment protects a free press and it is vital that the press expise wrongdoing….not because journalists are somehow privileged but that the public has a right to be informed.”
Has there ever been a precedent of the prosecution of a publisher?
“There has always been a divide, the source-distributor divide….they have charged whistleblowers or sources, but have never charged a publisher, a journalistic or other news outlet.”
There have been other attempts to prosecute journalists before?
“There have been extraordinary efforts to punish presidential enemies…”
Presidents going after journalists but never to the point of a grand jury returning charges?
At this point, the court had technical issues with Prof. Feldstein’s videolink, and adjourned for the day. Court resumes tomorrow, 10am London time.
Sources: defend.wikileaks.org / assangecourt.report