Assange Court Report September 25: Afternoon
“Millions” had access to documents before WikiLeaks released them, court hears
After the lunch interval, defence witness Patrick Eller, being re-examined by the defence said he did not know the identity of “Nathaniel Frank” who is one of the names in the chat logs with Chelsea Manning presented by the US government in evidence.
The prosecution allege that Julian Assange agreed to help Chelsea Manning increase her access to a US government computer network. Asked how many people had access to the computer system in question,” the witness replied, “probably millions.”
The defence suggested cracking the hash value was “computationally infeasible” and the witness agreed even a skilled hacker could not do it. The prosecution then rose to object saying they only allege the cracking was “tried,” not that it was successful. Judge Baraitser responded that this was a “fair point.” The computer expert then ended his evidence.
The court then moved on to submissions on the request by a media organisation for a copy of the medical reports that have been presented in evidence this week. Both the defence and prosecution opposed this on the basis that breached Mr Assange’s privacy and key points in the reports have been aired in court over three days of oral evidence.
One of the court reporters spoke and told the judge that they have no desire to add to any pain being suffered by the families and are guided by rules about not disclosing sensitive material. She added that both sides say that the law is that the press must give a reason to get access to documents, the problem was how would it be possible to give a reason for access to documents if you don’t know what’s in them?
The judge reserved her decision and the court adjourned for the weekend.
Assange Court Report September 25: Morning
No Assange ruling before 2021, court told.
After granting the defence four additional weeks to submit written submissions the Judge at the Old Bailey extradition trial of WikiLeaks founder Julian Assange, Vanessa Baraitser said that this would mean it was unlikely that she would now be able to make a ruling before New Year.
The judge remarked that she would have to take into account that Mr Assange is in custody when deciding how long she will give the parties to prepare closing speeches.
Edward Fitzgerald QC responded, “If you granted him bail that would solve that problem.”
Fitzgerald also observed that there was going to be a US election on 3 November and for Assange, “Things will be worse if Mr Trump is still there – we cannot avoid that political fact.”
There was a heated exchange when the defence requested to introduce new witness evidence in response to testimony from a prosecution witness. Counsel for the US government James Lewis QC said to the judge that the case “needs a firm hand, enough is enough,” adding, “This simply cannot go on or this case will simply never end.”
Responding, defence counsel said, “The prosecution has no divine right to have the last word.”
Judge Baraitser then rejected the defence request.
The court heard a written statement from Jakob Augstein, a journalist and publisher of German weekly newspaper Der Freitag. In his statement, Augstein confirmed that Der Freitag had published an article in August 2010 revealing the existence of an obscure website where unredacted US government cables were available to those who had the key.
He continued by stating that Assange called him shortly afterwards and requested that he not publish anything that could reveal where the file was located. Julian Assange was concerned about US government informants having their identity revealed and potentially put in danger.
The next witness was Patrick Eller, a forensic computer analyst who appeared by video link from the United States. The witness told the court that he had studied the court-martial records of former US soldier Chelsea Manning, who the prosecution say hacked into government computers with the assistance of Assange, as well as interviews with members of her former military unit. Eller said he had concluded that soldiers regularly put unauthorised files and programmes, such as music and games, on secure computers and this required cracking an administration password.
Manning, he said, was the “go-to person,” in her unit to do this for her colleagues. Eller testified that in his opinion the encrypted hash value Manning gave to Assange was for this purpose. It could not be used, and would not be needed, for Chelsea Manning to acquire secret documents anonymously.
Cross-examining the witness, James Lewis QC suggesed that Assange and Manning “thought they could crack the password and tried to crack the password.”
Eller pointed out the government’s own expert witness in Manning’s court martial had cast doubt on this.
Lewis then noted that Assange had said publicly he was an “expert hacker,” and asked the witness if an expert hacker could sometimes break into the most secure systems. Eller agreed.
September 24, 2020
Cryptome published unredacted cables first; medical testimony continues
At the very end of today’s proceedings, the defense read aloud an important and consequential witness statement from John Young, host of cryptome.org.
“I published on Cryptome.org unredacted diplomatic cables on September 1, 2011 under the URL https://cryptome.org/z/z.7z and that publication remains available at present.
Since my publication on Cryptome.org of the unredacted diplomatic cables, no US law enforcement authority has notified me that this publication of the cables is illegal, consists or contributes to a crime in any way, nor have they asked for them to be removed.”
The statement is a critical piece of evidence against the U.S. government’s indictment of Assange for publishing the unredacted diplomatic cables in 2011. The prosecution must prove “dual criminality,” that Assange’s alleged offenses in the U.S. would be a crime in the U.K. as well. Republishing classified documents is not a crime under the U.K.’s Official Secrets Act the way that publishing them is.
This witness statement corroborates previous testimony from John Goetz and others on the chronology of events, that WikiLeaks was not the first to publish the unredacted cables and in fact took great care to prevent names from being disclosed.
The defense also read a statement from Christopher Butler of the Internet Archive, also known as the Wayback Machine, a U.S.-based historical internet record based on snapshots of websites over time. Butler confirms that the Internet Archive still to this day hosts records of WikiLeaks’ publications and that the U.S. government has never attempted to take this data offline.
Medical experts on the dangers of extradition
Today’s proceedings mostly consisted of live testimony from Dr. Nigel Blackwood, the prosecution’s psychiatrist who interviewed Assange in prison, and Dr Sondra Crosby, who visited Assange multiple times in the Ecuadorian Embassy and again in Belmarsh. Once again, because this testimony dealt with Julian’s personal medical condition and history, we’ll try to summarize the relevant portions rather than provide every detail.
Dr Nigel Blackwood is a consultant forensic psychiatrist with the NHS, and he produced a report for the prosecution on Assange’s mental health and his suicide risk in the event of extradition. Dr. Blackwood has previously provided testimony supporting extradition in the case of Korcala v Polish Judicial Authority in 2017.
Medical testimony is used to establish whether “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him”, as that would violate Section 91 of the U.K.’s 2003 Extradition Act, and to prevent violation of Article 3 of the European Convention on Human Rights, which states “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Dr. Blackwood determined Assange to be “moderately depressed” and acknowledged, “There is undoubtably some risk of suicide attempt in the event of extradition,” but he doesn’t feel that it rises to a “high risk.” Blackwood relied on the standard established in USA v Turner, that the person facing extradition must be “capable of controlling” their own risk of suicide, and he found that Assange, whom he called a “very resilient” and “resourceful” man, would be capable of doing so.
In addition to USA v Turner, there is also relevant precedent in USA v Lauri Love, in which the U.K.’s High Court overturned the lower court judge’s ruling that Love could be extradited because the judge relied too heavily on the assurances that the U.S. Bureau of Prisons could provide adequate mental health care and prevent suicide in prison.
Defense lawyer Ed Fitzgerald therefore asked Dr. Blackwood for his to comment as to whether the conditions Assange would be detained under in the United States could be said to be “broadly equivalent” to those in the U.K. At issue are both pre-trial conditions and prospective post-trial conditions. The defense and prosecution agree that if extradited, Assange would be held before trial at Alexandria Detention Center (ADC) in Virginia. The defense argues that if convicted, Assange would be sent post-trial to ADX Florence, a Supermax prison in Colorado. The prosecution doesn’t confirm that Assange would be sent there but provides evidence regarding the facility to respond to the defense’s arguments.
In court, Dr. Blackwood admitted that he made his determination relying on the U.S. government’s supportive affidavit from assistant U.S. attorney Gordon Kromberg, wherein Kromberg argued that “there is no solitary confinement” at the ADC in Virginia. He made his statement before seeing the witness submission of Eric Lewis, lawyer for Reprieve who testified about his clients’ experience under SAMs and in solitary at the ADC. Dr. Blackwood would only say that he accepts there is a range of opinion as far as solitary confinement, but he agreed broadly that placing Assange in solitary confinement under SAMs, which would virtually bar him from communicating with the outside world, would be “deleterious” to his mental health. Dr. Blackwood also agreed that the question should be dealt with by experts on U.S. prisons, which he is not.
Dr. Crosby: “very high risk” of suicide if Assange is extradited
This afternoon we heard testimony from defense witness Dr. Sondra Crosby, an associate professor of medicine and public health at Boston University and an expert on the physical and psychological impact of torture, who visited Assange in the Ecuadorian Embassy in London, beginning in October 2017.
In January 2018, Dr Crosby co-wrote, “We examined Julian Assange, and he badly needs care – but he can’t get it” with the two medical doctors who visited Assange with her:
As clinicians with a combined experience of four decades caring for and about refugees and other traumatised populations, we recently spent 20 hours, over three days, performing a comprehensive physical and psychological evaluation of Mr Assange. While the results of the evaluation are protected by doctor-patient confidentiality, it is our professional opinion that his continued confinement is dangerous physically and mentally to him, and a clear infringement of his human right to healthcare.
Dr. Crosby has also written that her February 2019 visit in the embassy was spied on and her medical notes were taken. “Mr. Assange’s right to doctor-patient confidentiality was violated, and his confidential information had been breached,” she said.
Testifying by remote video, Dr. Crosby today said that in the embassy, Assange described symptoms of PTSD and psychological distress, and he complained of a number of physical symptoms that Dr Crosby found “very worrisome” but she had no way of performing a necessary physical evaluation at the time.
On the question of whether it would be unjust to send Julian to the United States, Dr. Crosby said, “Assange is at a very high risk of completing a suicide if he were to be extradited.”
Proceedings continue tomorrow at 10:00am London time.
Assange Court Report September 23: Morning
Asperger Syndrome puts Assange at “high risk,” if extradited
Julian Assange has Asperger Syndrome and would not be able to manage American prison conditions, an Old Bailey court has been told.
The testimony, from expert witness Quinton Deeley, a Senior Lecturer in Social Behaviour at King’s College London and Consultant Neuropsychiatrist in the National Autism Unit, came on the 11th day of evidence at the hearing which will determine if the Wikileaks founder should be extradited to the USA on charges of espionage and computer hacking.
Asperger Syndrome, Deeley told the court, is a disorder characterized by significant difficulties in social interaction and nonverbal communication, along with restricted and repetitive patterns of behaviour and interests. The witness said that he had come to this diagnosis after a six-hour telephone interview with Assange, as well as interviews with his friends and family.
Asked if the defendant would be able to tolerate conditions in a US prison, which would almost certainly involve solitary confinement, Deeley said “no”, adding that this, given his mental state, would be “unbearable.”
Cross-examining on behalf of the US government, barrister James Lewis QC challenged the psychiatrist’s diagnosis noting that Assange had once hosted a TV chat show, and showed the court a video of Assange eloquently answering questions at a panel discussion at the Frontline Club in London. Deeley responded by saying these were “highly structured environments,” and someone responding well in them did not contradict his medical conclusions.
“If he is being treated as an expert and can expand at length, he can deal with that,” the psychiatrist said.
Lewis then put to the witness a statement from Assange’s mother that he was a “selfless and dutiful father,” and suggested this was incompatible with a diagnosis of Asperger Syndrome. Deeley replied that people with Asperger’s can still be “dutiful and principled, and moved by the suffering of other people.”
He added that if Assange was extradited he would be at “high risk, more likely than not,” and “any responsible clinician would have to actively manage the serious risks to his health.”
Assange Court Report September 22: Afternoon
US detention would be “very damaging” to Assange, mental health expert says.
The tenth day of evidence at the hearing in London that will determine if WikiLeaks founder Julian Assange should be extradited to face espionage charges in America heard further evidence from Professor Michael Kopelman, head of Neuropsychiatry at King’s College London, who has written two reports on Assange’s state of mental health for the court.
Cross-examining the witness on behalf of the US government, barrister James Lewis QC suggested to Kopelman that much of his evidence was merely based on what Assange had told him, which he characterised as “self-reporting.” The professor replied, “That’s the nature of psychiatry; it relies on self-reporting…there’s no scan we can use.”
The prosecution counsel also proposed that the court had seen Mr Assange for two weeks and he was clearly was having no issues in following proceedings.
He quoted some of Assange’s interventions from the glass-fronted dock at the back of the court claiming they showed a “very close and accurate response to the proceedings.”
In a sharp exchange, Lewis suggested to Kopelman that a test he cited in support of his conclusion that Assange was not “malingering” (a term for someone who fakes illness for advantage) the “TOMM” test, did not in fact test for what Kopelman claimed. Kopelman replied “I’m an expert on cognitive testing and neuropsychology,” and noted that the full name of the test was the “Test of Memory Malingering.”
Lewis said, “Any mental health issues Mr Assange may have did not stop him stealing secrets from the top level of the US government.” Kopelman replied he was in no position to comment on that.
The witness was then shown various reports from medical staff at Belmarsh prison, where Assange is currently detained, giving a positive view of his mental health. The professor responded by saying that it had taken Assange time to get to trust a new psychologist at Belmarsh prison, “so he did conceal things from her.” He added that when it came to prison nursing staff Assange said different things to different members of staff, stating “It depended on whom he trusted.”
He also told the court that Mr Assange often hid his true condition from prison staff as he feared being put on constant watch or in isolation from fellow inmates.
Kopelman concluded his evidence by telling the court that his understanding is that if Assange were extradited to a US prison he would be placed on “Special Administrative Measures,” a harsh regime where prisoners are shackled and kept in solitary confinement, saying that if Assange were held under those conditions it would be very dangerous given his current mental state.
Assange Court Report September 22: Morning
Assange Has “A Bundle Of High-Risk Factors,” Expert Tells Court
The Julian Assange extradition hearing in London moved on to a new stage on the tenth day of evidence as it began hearing what is expected to be three days of detailed medical evidence from both sides.
The first of these witnesses to give evidence was the Section Head of Neuropsychiatry at King’s College London, Professor Michael Kopelman, who appeared for the defence.
Kopelman told the court he had visited Assange in prison on a number of occasions, had taken a full medical history and spoken to friends and family before he produced the detailed report that was presented to the court.
The witness then gave the court a summary of Mr Assange’s psychiatric history and current symptoms, which, he said, showed that an order of extradition would hugely increase the risk to his mental and physical health, and would lead to “a bundle of high-risk factors.”
Cross-examining on behalf of the US government, prosecution barrister James Lewis questioned the witness about the International Classification of Diseases (ICD), an international standard diagnostic classification for a wide variety of health conditions, including mental health. Kopelman said he makes his own diagnosis and thinks ICD definitions can be “political,” adding that ICD classifications of mental health “should not be used in a cookbook fashion” by untrained people.
In another exchange, James Lewis suggested that the witness is a neuropsychiatrist, which concentrates on physical brain injuries and is not a forensic psychiatrist so could not be fully relied on to properly judge a prisoner’s mental health in the way a specialist could. Kopelman replied that he recalled being called by a solicitor who had told him, “There is an extradition trial in Wandsworth and James Lewis is keen to use your services,” leading to some laughter in court.
The prosecution barrister then began citing various medical articles and asking if Kopelman had read them. “I didn’t think I was coming here for some kind of O level test,” he replied.
Lewis then suggested that Assange was an intelligent man with a motive to exaggerate his mental health issues so as to avoid being extradited to the USA. He suggested that the WikiLeaks founder was “malingering,” and noted he was a regular reader of the British Medical Journal. The prosecutor also told the court that an alleged incident in Belmarsh prison which featured in the witness’ psychiatric report appeared nowhere in the prison’s record. Kopelman agreed that he had not been able to corroborate it and should have noted he only had Assange’s word that it had occurred.
Prosecution also cited various reports by prison psychiatric staff, stating that Assange was fit to stand trial, to which Kopelman replied that Assange opens up more to him than them and said many of these reports represent little more than “a quick assessment on the way to court.”
The Professor also told the court that in his view Mr Assange was very reluctant to talk to many of the staff because he feared being put on constraint watch or isolation. Asked about a positive report on Assange’s mental health from a prison psychiatrist, Kopelman said this was before Assange was moved to a single cell and before he had examined him. Kopelman also suggested that the defendant avoided discussing some issues with prison staff out of embarrassment.
He called another positive report the result of a “tick box exercise,” and said it could not be relied on. In a further exchange, Lewis told the witness, “I’m trying to change your mind, Professor.” The witness asked, “About what?” The barrister replied “About your diagnosis.” Kopelman’s response was, “I’m a psychiatrist, you’re a lawyer.”
Assange Court Report September 21: Afternoon
Assange Evicted “On the orders of the President,” Court Told
A prominent US supporter of President Trump said he had worked to evict Julian Assange from the Ecuadorian embassy, stated he wanted him executed and threatened a female commentator for informing the WikiLeaks founder about it, a court has heard.
The testimony came in a sworn statement, from US commentator Cassandra Fairbanks, on day nine of evidence at a hearing in London which will determine if Assange will be extradited to the United States from the UK on charges of espionage and computer hacking.
In the statement, which was read out in court, Fairbanks, who described herself as a “working journalist,” and a supporter of Donald Trump, said she was a member of a “direct message group,” with various other journalists, the former United States ambassador to Germany Richard Grenell, and a man called Arthur Schwartz. Schwartz, she said, was a wealthy Republican donor and an advisor to the President’s son, Donald Trump Jr.
Fairbanks said that in October 2013, being sympathetic to Assange’s “plight,” she posted a video of an interview with his mother on the group, and ten minutes later received a telephone call from Schwartz, whom she described as “extremely angry.”
The aide, she said, told her to “stop advocating for Assange receiving a pardon,” because a pardon “isn’t going to f*cking happen.” He also said “they wouldn’t be so forgiving now, and “brought up” her nine-year-old son, which she perceived as “an intimidation tactic.”
In the statement, she said that during further communications Schwartz “knew very specific things about the case,” and told her that the government was going to arrange to have Assange kidnapped from the Ecuadorian Embassy. When she replied, “that would be an act of war,” he had replied “not if they let us,” a prediction that later came true.
Fairbanks also stated that she had visited Assange in London to tell him about this, and they had both taken precautions to avoid being overheard, such as playing a radio at high volume and speaking very quietly and close together and exchanging notes. Despite these precautions, she said, she was later told by Schwartz that he knew that she had warned Assange and therefore he could no longer “trust her with information.” She said this showed there must have been US government surveillance on the Embassy.
After the Wikileaks founder was arrested, the witness stated that she received text messages from Schwartz that said that Assange “deserved to die,” and that “everyone involved with WikiLeaks should be executed.”
Later, when she wrote a tweet questioning why the German ambassador to Washington was involved in the issue, he contacted her boss and “attempted to get me fired.”
In a later telephone call from Schwartz, which she recorded, she said the Republican donor was “ranting and raving,” and told her that Richard Grenell had helped to arrange for Assange to be removed from the Embassy “on direct orders from the President,” which she took to mean President Trump.
Despite being given the opportunity by the trial judge, Vanessa Baraitser, to have the witness testify by video link so they could cross-examine and challenge her statements, barristers for the US government declined the opportunity.
Assange Court Report September 21: Morning
Journalist’s book gave away secret passcode, court hears
Unredacted US government cables were released online after a Guardian journalist, David Leigh, published a book which contained the key to decrypt them, a court has heard.
The claim came from a computer scientist, Professor Christian Grofthoff, who was giving evidence for the defence on the 9th day of evidence at the Julian Assange extradition hearing.
In sworn testimony, Grothoff related that in 2010 and 2011 the main Wikileaks website was coming under sustained “denial of service attacks,” which involved remote computers in their thousands logging on to the site so as to overload its servers. In response, many people made copies of the site, “mirrors,” a few of which contained the cables, but added, “they were strongly encrypted.” These, he said, “were useless without the key,” which was a long string of letters and numbers.
The witness then told the that in early 2011, Leigh released a book, “WikiLeaks: Inside Julian Assange’s War on Secrecy” telling his story of working with Assange. One of the chapter headings, Grothhoff said, was simply the encryption key, which he had been given when he was working as a media partner of Wikileaks.
In August 2011, a German newspaper Der Freitag published a story saying that there was a password going around the internet that could access the data. “People could now put two and two together, go over the WikiLeaks archive and decrypt the file,” he said. Asked if WikiLeaks could have taken any action to prevent this, he replied “no.”
The full archive was then published on various internet sites, including a searchable version on well known US-based website Cryptome, where he said it could still be found. Asked if the US government had prosecuted Cryptome over this, Grothoff replied to the best of his knowledge they had not.
Cross-examining the witness on behalf of the US government, barrister Joel Smith suggested to Grothoff that Wikileaks themselves had given access to the data to over 50 organisations, including media organisations and non-governmental groups asking, if Wikileaks gave the password to too many people. Grothoff replied, “Well if you put it in a book, like David Leigh did, you give it to a lot of people.”
The prosecutor then put it to the witness that it was WikiLeaks itself who had encouraged people to build “mirror sites,” so they could not be totally knocked offline by a cyber attack. The witness said this was a usual strategy for organisations under a denial of service attack.
Grothoff continued that often the best way to hide mirror websites which contained the files, was to build thousands of mirrors which did not contain it, making it almost impossible for someone searching for them to locate ones holding the data, “building a haystack,” as he called it.
The prosecutor asked about an earlier release of some of the cables. The witness told the court that he had checked these saying that they were marked “unclassified.” Smith asked, “Were they marked secret?” Grothoff replied, “unclassified documents are not usually secret.”
Under re-examination by defence counsel Mark Summers QC, Professor Grothoff told the court that according to Leigh’s own book, he had pressured Assange to give him the passcode to the decrypted files telling him, “You could be in an orange jumpsuit heading to Guantanamo Bay before you release them.” Grothoff also testified that he had carried out an exhaustive search and had been unable to locate a single example of the code being released online before the Guardian journalist published it in his book.
Assange Court Report September 18: Afternoon
US Government confirms Assange pardon offer
A US Congress member offered Julian Assange a pardon iif he was willing to name the source of documents WikiLeaks published during the 2016 US Presidential election, the Wikileaks founder’s extradition hearing has been told.
In a written statement, solicitor Jennifer Robinson said she attended a meeting in August 2017 with Assange, then US Congressman Dana Rohrabacher, and conservative writer Charles Johnson at the Ecuadorian Embassy in London. During this meeting Assange was made an offer of a full Presidential pardon if he would publicly say that his source of documents from the US Democratic Party was not Russia.
Assange rejected the offer because of Wikileaks’ policy of refusing to name their sources.
This was not new information, having been reported in the media and mentioned during pre-hearings in the case, however it is the first time it has been given in sworn evidence before a court.
Also new was the response from the US government lawyer, James Lewis QC, who told the court that the government agreed that the meeting mattered and that the offer was made, but “we do not accept the truth of it.” In other words, the offer had been made but he did not accept that President Trump was aware of it or had authorised it. The prosecution had therefore declined to cross-examine Ms Robinson on the matter.
Assange Court Report September 18: Morning
Journalists routinely rely on “confidential sources”, court hears
On the 8th day of Julian Assange’s extradition hearing at London’s Old Bailey, the court heard from prominent New Zealand investigative journalist Nicky Hager.
Hager told the court that journalists covering issues like the Iraq and Afghan wars had to use confidential sources, saying “we need classified information to inform the public.”
He continued, “There are some subjects which are so secret in their content that we cannot work on them to an adequate standard for the public unless we have confidential sources,” adding, “There is simply no realistic and effective alternative in order to hold people to account and aid democratic decision-making.”
Hager said that the WikiLeaks information allowed him to write about the “multi-layered nature” of the Afghan war, and said the war logs leaked by Wikileaks were “the most important material I have ever used in my life.”
Asked by defence counsel Edward Fitzgerald QC of his experience of working with Assange he replied, “Thoughtful, humorous and energetic, very different from the portrait painted in the media of this difficult man. He has dedicated himself to changing the world. In an era where secrecy was increasing, the digital era could be harnessed for good.”
Hager also testified that when he worked with Wikileaks he was “amazed” to see the level of care they were taking to redact information that might harm people, describing seeing “people working in silence for hours and hours” checking and redacting documents.
Cross-examining on behalf of the US Government, James Lewis QC told the witness, “Mr Assange has not been charged with publishing any of the documents you relied on for your work.” Lewis then asked the journalist, “Have you ever paid a government official to hack a computer?” to which Hager replied, “No, but you’re getting close to the point where I might say yes.”
Hager told the court that “journalists do not just sit passively and wait for information,we talk to our sources, we seek out sources, these are not just anonymous people, we have to protect them.” The way that information has an effect on the world through news media & public debate does not come in a neat segmented way as it might in the courtroom. So the war diaries, embassy cables, Guantanamo material, and Apache video affected the world as a whole, not as divisible parts.
He compared the impact of the Wikileaks “Collateral Murder,” video to that of the video of the death of George Floyd saying it “electrified the world,” and led to significant changes in US policy in both Iraq and Afghanistan.
The court then heard a written statement from Khalid El-Masri, a German citizen, who says he was arrested in Macedonia in 2003, tortured and then flown to a secret US military prison in Afghanistan and held there without trial. There, he said, he was routinely interrogated, beaten, strip-searched, sodomised, and subjected to other cruel forms of inhumane and degrading treatment for four months – accusations that the European Court of Human Rights ruled were true in 2012. The defence say that US diplomatic cables show that the US government put pressure on the German government not to prosecute the CIA agents involved.
Mr El-Masri was due to give evidence by video link, but, after a legal argument, presiding judge Vanessa Baraitser decided that it would be sufficent for his statement to be read to the court and he need not appear.
At this point Mr Assange spoke from the glass-fronted dock at the back of the court saying to the judge, “Madam I will not accept you censoring a torture victim’s statement to this court,” to which the judge replied, “You are well represented.”
Assange Court Report September 17: Afternoon
Assange Conduct “Daily Routine” In US Media
A US human rights lawyer has told a court that the actions for which Julian Assange is being prosecuted, namely publishing material the US government regards as classified, is “a daily routine in the US press, and is often encouraged by officials.”
Carey Shenkman, who was testifying on the seventh day of evidence in the extradition trial of Wikileaks founder Julian Assange at London’s Old Bailey, was giving evidence on the nature of the American Espionage Act, alleged breaches of which make up the bulk of charges against Assange.
He told the court that the Act, passed in 1917 after America joined the fighting in World War I, “was born during “one of the most oppressive periods in US history,” saying it was “used to stop opposition to American participation, against Union leaders and socialist politicians.” He described it as “extraordinarily broad,” and “one of the most contentious laws in the United States, saying that it “could even apply to someone in the UK retweeting something the US government considers classified.”
“It is really a political tool which has been used historically to prosecute dissenters and implement censorship. Most scholars are in agreement of this,” as this would be in conflict with the free speech provisions in the First Amendment to the US Constitution.
On the specific issue of the charges against Assange being based on his publication of classified material, Shenkman said that despite eleven attempts he knew of, “there has never, in the century-long history of the Espionage Act, been an indictment of a U.S. publisher under the law for the publication of secrets.”
Cross-examining for the US government, Barrister Claire Dobbin questioned the witness’s impartiality saying he had at one point worked for an American law firm that represented Assange. Shenkman said that he had been at the firm, but in a very junior role just providing advice in international law, saying that “in the legal food chain, I was plankton.”
In a series of exchanges, the prosecution lawyer said to the witness “As you have offered an expert opinion about the Espionage Act I’m going to ask you some questions about US law if they are too difficult for you, tell me.” Later Shenkman responded to a question by saying, “I don’t know why you are showing me documents and asking me to confirm what is written on the page, it seems like a waste of time.”
Asked by Dobbin why he had argued that the prosecution of Assange was political, Shenkman replied: “I never thought based on history we’d see an indictment that looked like this,” adding it is “truly extraordinary.”
Due to technical difficulties in the video link to the witness in America delaying proceedings, the testimony was unable to be completed today, so he was asked to return tomorrow to complete it.
Assange Court Report September 17: Morning
Assange was “insistent” about document redaction
Julian Assange took a diligent and serious attitude to redacting names of people who could possibly come to harm over the release of the Iraq war logs, a court was told.
The testimony came from Professor John Sloboda, the founder of the Iraq Body Count project which had used open-source information from the beginning of the invasion of Iraq by the US and its allies to calculate and publish estimates of how many civilians were being killed in the conflict. He told the court that in 2010 he collaborated with Wikileaks over the release of the Iraq war logs, over 400,000 day by day US military reports which, he said, had revealed over 15,000 deaths of non-combatants that he had previously been unaware of.
He said that the importance of monitoring civilian deaths is that “it gives dignity for those who are killed and gives information that may reveal patterns and trends,” adding that the release of the documents led to a huge increase in worldwide awareness of the scale of civilian casualties during the invasion and subsequent occupation.
Sloboda testified that as there were over 400,000 documents in the database of information and it would take “an army of people,” to manually check them, computer software was designed to automate the process. He said that the software would check the documents to check for non-English words and remove them, therefore ensuring no Iraqi names would be released to the public.
The witness said many of WikiLeaks’ media partners were frustrated at the process, as it delayed their ability to publish stories, but Assange was insistent about it.
Cross-examining for the prosecution, barrister Joel Smith suggested that Sloboda had no experience in the handling of classified material, and asked how many people had direct access to the raw Iraqi war log data. Sloboda replied he simply didn’t know, nor was he aware of what vetting procedures WikiLeaks used before giving people access to the material.
The prosecution then suggested that despite the software names were released of Iraqi people who had given information or assistance to US military forces in Iraq, and asked Sloboda if it was not correct that “Mr Assange took a cavalier attitude to the publication of these names.”
Sloboda replied “No.”
Court then adjourned for the morning.
Assange Court Report September 16: Afternoon
Celebrated whistleblower defends Assange in court
A famous Vietnam era whistleblower, 89-year-old Daniel Ellsberg, has told a court that he feels “a great identification,” with both Julian Assange and his source Chelsea Manning, who, he said, “were willing to suffer the risk of imprisonment or even death to get information to the American public.”
Ellsberg, a former US Marine officer who served with the US State Department in Vietnam during the war years, is best known for leaking a huge tranche of US government documents on the war to the New York Times in 1970, documents that showed that the government had been lying to the American people about the conflict from the beginning.
He was later subject to prosecution and a series of attacks, including threats of violence from the Nixon administration, who called him “the most dangerous man in America.” His revelations are now widely celebrated as helping to end the destructive conflict and he is the recipient of a number of international awards.
Ellsberg testified that he rejected the idea that the Pentagon Papers were good and Wikileaks was bad, saying that many of the people who had vilified him for years were now praising him as a “patriot,” as a “foil against Assange and Edward Snowden.” He said that Assange had political ideas of “sophistication and complexity,” many of which he agrees with and said his approach was “the exact opposite of reckless publication.”
Ellsberg told the court that Assange exposed what were clearly war crimes in Iraq and Afghanistan and that he was shocked that while when he was serving Vietnam evidence of US war crimes would be classified top secret with very few people having access to it, while the Iraq and Afghan war logs leaked by Chelsea Manning were available on a system that over 100,000 people had access to, saying that, “torture and assassination have been normalised.”
He further told the court that during his prosecution in 1971 he was not allowed to tell a jury why he did what he did, and said that in US espionage cases matters of motive are not allowed not to be considered.
“Julian Assange could not get a fair trial in the United States,” he concluded.
In a fiery cross-examination exchange with the barrister representing the US government in the case, James Lewis QC, Ellsberg repeatedly denied people had been harmed by Wikileaks actions, a main plank of the US extradition case, saying, “I am still capable of being fooled by the government, like with WMD in Iraq – when they told me Wikileaks had blood on their hands I believed them, but 10 years later there is no evidence.” The prosecution barrister called his statement “absolute nonsense,” saying that Osama Bin Laden had copies of Wikileaks documents when he was killed by US forces in 2011, and that the Taliban had publically said they were using the leaks to identify informers.
Asked about people in Iraq and Afghanistan being forced to leave their homes after being named by WikiLeaks as haven given information to US military forces in those countries, Ellsberg replied, “None of these hundreds of threats appears to have been carried out, if they were I would have a very different attitude.” He said that some people might have left their countries because of this and he regretted that, but added, “How many refugees have been caused in that region by US wars?”
He told the court, “They are pretending to care about the people in this region when their policies have shown their absolute contempt for them over the last 19 years.”
Asked by Lewis, “What about the disappeared people in Iraq and Afghanistan?” the witness replied, “How do you know what happened when you can’t find them?”
Ellsberg also said that “the US government could have stopped the sensitive names just being released just by giving the ones they were concerned about to Assange so he could redact them, instead “they did not lift a finger,” so they could still have the chance to prosecute him. They didn’t care,” he added, “they bear a heavy responsibility,” saying “even if it was true, it would be a small fraction of the number of people killed in US wars in the region.”
Asked if he himself had ever had a copy of the encrypted Wikileaks data, he replied “yes,” saying it was never published and he later “destroyed it with hammers.”
On re-examination for the defence, Ellsberg said that the Pentagon Papers he leaked “contained thousands of names,” including that of a CIA officer who had been involved in political assassination. He had not removed them so he could not be accused of “selectively editing” the documents, although he did hold back four folders of information on US diplomatic strategy as he did not want to undermine the chance of a negotiated peace settlement.
He then concluded his evidence.
Assange Court Report September 16: Morning
WikiLeaks cable release caused no harm to anyone, court hears
A witness at the Julian Assange extradition trial has told the court that he knows of no incident involving harm to anyone that was caused by the WikiLeaks release of unredacted US government cables.
John Goetz, a German investigative journalist testifying over a video link, was one of the media partners who worked with WikiLeaks to release information from the Afghan and Iraqi war logs, and a huge cache of US diplomatic papers.
Addressing one of the main prosecution arguments against Mr Assange, namely that he acted irresponsibly and put the safety of people who had given information to the US military in Iraq and Afghanistan in jeopardy, Goetz described what he called a “robust,” process of removing names where their release may have put people in danger.
Wikileaks was careful to keep unredacted documents safe, using secure servers and encryption, adding that WikiLeaks had invested time and money in screening the documents, a process he found “frustrating” at times as it delayed him in publishing stories.
He also told the court that he had participated in a conference call with the US State Department who gave the reporters page numbers of the documents they had concerns over and that names were then removed from the ones they had mentioned.
Asked about the eventual release of the unredacted government cables in 2011, Goetz told the court about a book by two Guardian journalists, David Leigh and Luke Harding, which the witness says revealed the password for an encrypted file hosted on Wikileaks secure servers. This allowed the information on “mirror sites,” to be decrypted and led to the website Cryptome publishing all of the information.
Cross-examining, US government barrister James Lewis QC argued that Wikileaks published a week before Cryptome, which the witness said was incorrect. Responding to Lewis saying people had been put at risk by the release, Goetz replied by asking if the QC, “had a specific example of a sensitive name being released by WikiLeaks causing harm?” The prosecution QC says he will later.
Asked by counsel if it was it true that his own Der Spiegel had condemned the release of the unredacted documents, Goetz replied “It did,” before adding after a pause, “But I wasn’t working there at the time.”
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 / dontextraditeassange.com