Tuesday has been another day on which the testimony focused on the extreme inhumane conditions in which Julian Assange would be kept imprisoned in the USA if extradited. The prosecution’s continued tactic of extraordinary aggression towards witnesses who are patently well informed played less well, and there were distinct signs that Judge Baraitser was becoming irritated by this approach. The totality of defence witnesses and the sheer extent of mutual corroboration they provided could not simply be dismissed by the prosecution attempting to characterise all of them as uninformed on a particular detail, still less as all acting in bad faith. To portray one witness as weak may appear justified if they can be shaken, but to attack a succession of patently well-qualified witnesses, on no basis but aggression and unreasoning hostility, becomes quickly unconvincing.
The other point which became glaringly anomalous, in fact quite contrary to natural justice, was the US government’s continued reliance on affidavits from US Assistant Attorney Gordon Kromberg and Board of Prisons psychiatrist Dr Alison Leukefeld. The cross-examinations by the US government of the last four defence witnesses have all relied on precisely the same passages from Kromberg and Leukefeld, and every single one of the defence witnesses has said Leukefeld and Kromberg are wrong as to fact. Yet under US/UK extradition agreements the US government witnesses may not be called and cross-examined. When the defence witnesses are attacked so strongly in cross-examination on the points of disagreement with Kromberg and Leukefeld, it becomes glaringly wrong that Kromberg and Leukefeld may not be similarly cross-examined by the defence on the same points.
Similarly as to process, the only point of any intellectual purchase which the US government’s lawyers have hit upon is the limited direct experience of the witnesses of the H unit of the ADX Supermax prison. This casts in a stark light last week’s objection to the defence introducing further witnesses who have precisely that experience, in response to the affidavits of Kromberg and Leukefeld on these specific points, which were submitted on 20 August and 2 September respectively. The prosecution objected to these witnesses as too late, whereas both were submitted within a month of the testimony to which they were responding. The US government and Baraitser having ruled out witnesses on this very specific new point, their then proceeding to attack the existing defence witnesses on their knowledge of precisely the point on which they refused to hear new evidence, leaves a very bad taste indeed.
The first witness of the day was Maureen Baird, former warden (governor in UK terms) of three US prisons including 2014–16 the Metropolitan Correction Centre (MCC) New York, which houses a major concentration of Special Administrative Measures (SAMs) prisoners pre-trial. She had also attended national courses and training programmes on SAMs and met and discussed with fellow warders and others responsible for them elsewhere, including Florence ADX.
Led through her evidence by Edward Fitzgerald QC, Baird confirmed that she anticipated Assange would be subject to SAMs pre-trial, based on the national security argument and on all the documentation submitted by the US Attorney, and post-trial. SAMs meant being confined to a cell 23–24 hours a day with no communication at all with other prisoners. In MCC the one hour a day outside your cell was spent simply in a different but identical empty cell known as the “recreation cell”. She had put in an exercise bike; otherwise it was unequipped. Recreation was always completely alone.
Prisoners were allowed one phone call a month of 30 minutes, or 2 of 15 minutes, to named and vetted family members. These were monitored by the FBI.
Fitzgerald asked about Kromberg’s assertion that mail was “free-flowing”. Baird said that all mail was screened. This delayed mail typically by two to three months, if it got through at all.
Baird said that the SAMs regime was centrally determined and was the same in all locations. It was decided by the attorney general. Neither the prison warden nor the Board of Prisons itself had the power to moderate the SAMs regime. Fitzgerald said the US government had claimed yesterday it could be varied, and some people under SAMs could even have a cellmate. Baird replied “No, that is not my experience at all”.
Fitzgerald quoted Kromberg as stating that a prisoner could appeal to the case manager and unit manager against the conditions of SAMs. Baird replied that those people “could do nothing”. SAMs was “way above their pay grade”. Kromberg’s description was unrealistic, as was his description of judicial review. All internal procedures would have to be exhausted first, which would take many years and go nowhere. She had never seen any case of SAMs being changed. Similarly, when Fitzgerald put to her that SAMs were imposed for only one year at a time and subject to annual review, Baird replied that she had never heard of any case of their not being renewed. They appeared simply to be rolled over by the Attorney General’s office.
Baird said that in addition to herself applying SAMs at the MCC, she went on national training courses on SAMs and met and discussed experiences with those applying SAMs at other locations, including the Florence, Colorado ADX. SAMs had strong and negative consequences on prisoners’ mental and physical health. These included severe depression, anxiety disorder and weight loss. Baird said she agreed with previous witness Sickler that if convicted Assange could very well face spending the rest of his life imprisoned under SAMs at the Florence ADX. She quoted a former warden of that prison describing it as “not built for humanity”.
Fitzgerald took Baird to Kromberg’s description of a multi-phased programme for release from SAMs. Baird said she recognised none of this in practice. SAMs prisoners could not participate in any group programmes or meet other prisoners in any circumstances. What Kromberg was describing was not a programme but a very limited list of potential small extra privileges, such as one extra phone call a month. Phase 3 involved mingling with other prisoners and Baird said she had never seen it and doubted it really applied: “I don’t know how that happens”.
Fitzgerald asked Baird about Dr Leukefeld’s claim that some prisoners enjoy Florence ADX so much they did not want to leave. Baird said this was a reflection of the extreme anxiety disorders that could affect prisoners. They became scared to leave their highly ordered world.
It was interesting to see how the prosecution would claim that Baird was unqualified. It was very difficult to counter the evidence of a prison warder about the inhumanity of the prison regime. The US government hit on a quite extraordinary attack. They claimed that the prison system was generally pleasant as described by Leukefeld and Kromberg, but that the prisons in which Baird had worked had indeed been bad, but only because Baird was a bad warden.
Here are brief extracts from the US Government’s cross-examination of Baird:
Clair Dobbin Are you independent? Maureen Baird I work for one attorney but also others. Dobbin You appear on a legal website as a consultant – Allan Ellis of San Francisco. Baird I do some consultancy, including with Allan but not exclusively. Dobbin You only work for defendants? Baird Yes. Dobbin It says that the firm handles appeals and post-conviction placing. Baird Yes, I tend to get involved in post-conviction or placing. Dobbin Do you have any experience in sentencing? Baird What kind of sentencing? Dobbin That is what I am asking. Baird I have testified on prison conditions pre-sentence.
This was a much briefer effort than usual to damage the credentials of the witness. After questions on Baird’s exact prison experience, Clair Dobbins moved on to:
Dobbin Do you know the criteria for SAMs? Baird Yes. Dobbin Why do you say it is likely Assange will get SAMs? Kromberg only says it is possible. Baird Kromberg talks about it a very great deal. It is very plainly on the table. Dobbin It is speculative. It can only be decided by the Attorney General as reasonably necessary to prevent the disclosure of national security information. Baird They have made plain they believe Assange to hold further such information. Dobbin You are not in any position to make any judgement. Baird It is my opinion he would be judged to meet that criterion, based on their past decisions. Dobbin How can you say the risk exists he would disclose national security information? Baird He is charged with espionage. They have said he is a continuing risk. Dobbin I am suggesting that is highly speculative and you cannot know. Baird I am judging by what the government have said and the fact they have so much emphasised SAMs. They very definitely fail to say in all this that SAMs will not be applied.
After further discussion on Kromberg’s claims versus Baird’s experience, the US government moved on to the question of the SAMs prisoners under Baird’s care in the MCC.
Dobbin You say they were in solitary confinement. The officers on the unit did not have human contact with the prisoners? Baird They did not speak to inmates. Dobbin Why not? Baird That is not what prison officers do. Dobbin Why not? You were in charge? Baird They just open the small viewing slot in the iron door every half hour and look through. Conversation just did not happen. Dobbin You could encourage that? Baird I could lead by example. But ordering conversation is not something a prison warden does. I did not have that authority. There are unions. If I instructed the prison officers to socialise with the prisoners, they would reply it is not in their job description. Dobbin Oh, come on! You could encourage. Baird On a normal basis, those officers do not talk to inmates. Dobbin Did you tell your staff to? Wouldn’t the first thing you do be to tell your staff to talk? Baird No. That’s not how it works. Dobbin Did you raise your concerns about SAMs with those above you? Baird No. Dobbin Did you raise your concerns with judges? (brief discussion of a specific case ensued) Baird No. Dobbin Did you raise concerns about the conditions of SAM inmates with judges? Baird No. They were a very small part of the prison population I was dealing with. Dobbin So you didn’t encourage staff or raise any concerns? Baird I tried to be fair and compassionate. I talked to the isolation prisoners myself. The fact that other staff did not engage is not uncommon. I do not recall making any complaints or recommendations. Dobbin So these conditions did not cause you any concerns at the time. It is only now? Baird It did cause me concerns. Dobbin What did you do about your concerns at the time? Baird I did not think I had any influence. It was way above me. SAMs are decided by the Attorney General and heads of the intelligence agencies. Dobbin You did not even try.
This was an audacious effort to distract from Baird’s obviously qualified and first-hand evidence of how dreadful and inhuman the regime is, but ultimately a complaint that Baird did not try to modify the terrible system does not really help the government case. In over two hours of cross-examination, Dobbin again and again tried to discredit Baird’s testimony by contrasting it with the evidence of Kromberg and Leukefeld, but this was entirely counter-productive for Dobbin. It served instead to illustrate how very far Kromberg’s and Leukefeld’s assurances were from the description of what really happens from an experienced prison warden.
Baird demolished Dobbin’s insistence on Kromberg’s description of a functioning three-stage programme for removal of SAMs. When it came to Dr Leukefeld’s account of SAMs prisoners being allowed to take part in psychiatric group therapy sessions, Baird involuntarily laughed. She suggested that from where Dr Leukefeld sat “in the central office”, Leukefeld possibly genuinely believed this happened.
The afternoon witness was an attorney, Lindsay Lewis, who represents Abu Hamza, who is held at ADX Florence. The videolink to Lewis had extremely poor sound and from the public gallery I was unable to hear much of her testimony. She said that Hamza, who has both forearms amputated, had been kept in solitary confinement under SAMs in the ADX for almost ten years. His conditions were absolutely inappropriate to his condition. He had no prosthesis sufficient to handle self-care and received no nursing care at all. His bed, toilet and sink were all unadapted and unsuitable to his disability. His other medical conditions including severe diabetes, hypertension and depression were not adequately treated.
Lewis said that the conditions of Hamza’s incarceration directly breached undertakings made by the US government to the UK magistrates’ court and High Court when they made the extradition request. The US had stated his medical needs would be fully assessed, his medical treatment would be adequate, and he was unlikely to be sent to the ADX. None of these had happened.
In cross-examination, Dobbin’s major point was to deny that the assurances given to the British authorities by the US Government at the time of Hamza’s extradition amounted to undertakings. She was also at great pains to emphasise Hamza’s convicted terrorist offences, as though these justified the conditions of his incarceration. But the one thing which struck me most was Lewis’s description of the incident that was used to justify the continued imposition of SAMs on Hamza.
Hamza is allowed to communicate only with two named family members, one of whom is one of his sons. In a letter, Hamza had asked this son to tell his one-year-old grandchild that he loved him. Hamza was charged with an illegal message to a third party (the grandson). This had resulted in extension of the SAMs regime on Hamza, which still continues. In cross-examination, Dobbin was at pains to suggest this “I love you” may have been a coded terrorist message.
The day concluded with a foretaste of excitement to come, as Judge Baraitser agreed to grant witness anonymity to the two UC Global whistleblowers who are to give evidence on UC Global’s spying on Assange in the Ecuadorean Embassy. In making application, Summers gave notice that among the topics to be discussed was the instruction from UC Global’s American clients to consider poisoning or kidnapping Assange. The hidden firearm with filed-off serial numbers discovered in the home of UC Global’s chief executive David Morales, and his relationship to the Head of Security at the Las Vegas Sands complex, were also briefly mooted.
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Today was the worst day for the defence since the start of the trial, as their expert witnesses failed to cope with the sheer aggression of cross-examination by the US Government and found themselves backing away from maintaining propositions they knew to be true. It was uncomfortable viewing.
It was not that the prosecution had in any way changed their very systematic techniques of denigrating and browbeating; in fact the precise prosecution template was once again followed. It goes like this.
undermine academic credentials as not precisely relevant
humiliate by repeated memory test questions of precise phrasing of obscure regulations or definitions
denigrate relevance of practical experience
iterate official positions and challenge witness to say they are expressed by named officials in bad faith
humiliate by asking witness to repeat from memory regulations for expert testimony in UK courts
run though a list of qualifications and government positions relevant to the subject and make witness say one by one they have not held them
claim testimony is biased or worthless because it does not include government assertions at full length.
You will note that none of this has anything to do with the truth of the actual evidence, and to date almost all witnesses have easily, sometimes contemptuously, seen off this intellectually shallow method of attack. But today was another story. The irony was that, when it came to the real subject matter of the evidence, it was obvious to any reasonable person that the prosecution claims of the good conditions in the American Prison service for high profile national security prisoners are just nonsense. But it was a day when the divorce between truth and court process was still plainer than usual. Given the horrific reality this process was disguising, it was a hard day to sit through.
First to give evidence by videolink was Yancey Ellis. An attorney with a doctorate in law, Ellis has been practising for 15 years including five as a US Marine Judge Advocate. He currently practises in Alexandria, Virginia, where he is now private, having formally been a public defender. As such he is very familiar with the Alexandria Detention Centre where Assange would be held pre-trial. This includes visiting clients in the Administrative Segregation, (AdSeg or X block) where high profile and national security prisoners are held.
He testified that pre-trail detention could last many months or even years. Isolation from other prisoners is the purpose of the X block. Prisoners are in tiny cells of approximately 50 square feet, which is under 5 square metres. The bed is a shelf. On a daily basis only one to two hours are allowed outside the cell, into a small area outside at a time when nobody else is there. The second hour was generally available only in the middle of the night, so was not utilised.
Edward Fitzgerald, QC for the defence, asked Ellis whether prisoners in Administrative segregation could associate. Ellis replied “not really”. The purpose of AdSeg was to prevent it. You were never allowed out of your cell at the same time as another AdSeg prisoner. Contrary to the assertions of Gordon Kromberg, it was very difficult to talk through the thick steel doors. You would have to scream at the top of your voice to be heard at all. Ellis had tried it himself to consult with his clients. Communication was only possible if he could find a deputy to open a food flap for him. As prisoners in AdSeg were locked down, the unit was not usually staffed.
Ellis said that AdSeg was solitary confinement, on the definition of more than 22 hours a day alone with no human interaction. In practise, there was no appeal to the judicial authorities on prison conditions. “Courts will defer to the jail on how they house inmates” [which of course mirrors Baraitser’s answers to requests to ameliorate Assange’s periods in solitary confinement and other mistreatment in Belmarsh prison].
Fitzgerald pointed out that the AdSeg regime Ellis described was even without the addition of Special Administrative Measures, which bring additional restrictions. Ellis confirmed none of the clients he represented was subject to SAMs. He confirmed they did get phone access, but only to a service that allowed them to send “pre-recorded phone calls” to relatives. Fitzgerald then asked how this was affected by SAMs, but James Lewis QC objected on the grounds Ellis had said he had no direct knowledge and Baraitser upheld that.
Fitzgerald asked Lewis about provision of medical and psychiatric care. Ellis replied that the Alexandria Detention Centre does not employ a doctor. There were some social work and counselling services available in-house. Medical services were provided by a private firm. It could take several weeks to see a psychiatrist, even in a crisis. Asked about suicide risk, Ellis said prisoners could be made to wear a “special suit” [straitjacket?] and had shoelaces, belt etc. removed.
James Lewis QC then cross-examined for the US government and I think this is best conveyed as dialogue. Again this is slightly condensed and paraphrased. It is not a transcript (it would be illegal for me to take a transcript; no, I don’t know why either).
Lewis You have described US Assistant Attorney Gordon Kromberg’s testimony as “inaccurate or incomplete”. How many prisoners are there currently in Alexandria Detention Centre? Ellis Approximately 300. Lewis You say there are four or six cells in administrative segregation? Ellis Yes, in the H block. Lewis Your info comes from your visits and from prisoners? Ellis Yes. Lewis Have you interviewed the governor? Ellis No. Lewis Have you interviewed the custodial staff? Ellis No. Lewis Have you interviewed the psychiatrists or psychologists? Ellis No. Lewis You have given one side of the story. One side of the picture. Do you agree? Ellis Do I agree there are two sides to every story? Lewis US Marshalls annually inspect the jail. Do you disagree? Ellis I don’t know. Lewis Kromberg says it was inspected on August 5 2019 by US Marshalls and found fully compliant. What do you say? Ellis Alright. Lewis Also the Commonwealth of Virginia inspected July 23-5 2019. There have been no suicides during the current inspection period. Ellis They have a good track record when it comes to completed suicides. Lewis Have you read these reports? Do you know the findings of these reports? You don’t know how prisoners are assessed for different types of housing? Ellis I have frequently asked for assessment reports in individual cases. I have never been given them. Lewis You don’t know that Assange will be placed in Administrative Segregation? Ellis I would bet that he will. Lewis Kromberg has stated that AdSeg prisoners have access to prisoner programmes but you have testified otherwise. But you have never represented federal prisoners, have you? Ellis There is no difference in treatment inside the jail between state and federal prisoners. Lewis Were you asked by the defence to state that AdSeg is solitary confinement? Ellis No. Lewis There is unlimited access to your lawyers. That is not considered in your definition of solitary confinement. Ellis Not unlimited. Lewis AdSeg prisoners have library access? Ellis Rarely. They may be able to go there in their time outside the cell, but only if it can be empty at that time so they do not meet anybody. Lewis You say Assange will be housed in AdSeg on the ground floor. You cannot know that. Ellis National security prisoners are all on the ground floor. The higher floors are for general population. Lewis Your clients in AdSeg were a security risk. Do you know that Assange will be so deemed? Ellis No. Lewis How do you know Assange won’t be kept in the medical wing? Ellis High profile prisoners are not allowed to mix with the general population. Lewis But won’t Mr Assange benefit from a phalanx of lawyers questioning his conditions. Don’t you think his publicity and support will bring better treatment? Ellis I don’t know that will be the effect.
Edward Fitzgerald then re-examined for the defence.
Fitzgerald Your judgements are based on your personal observations? Ellis Yes, and the reports of my clients. Fitzgerald And why do you say Assange will be kept on the H block? Ellis It’s the design of the jail. Nowhere else a long term AdSeg prisoner could be held. Fitzgerald On prisoner programmes, you say they would not be possible if it involved meeting another prisoner? Ellis Yes, and there are no individual programmes.
For the first time in this trial, Baraitser herself now asked a question of the witness. She asked Ellis why he thought Assange would not be held in the general prison population, as he currently was at Belmarsh. Ellis said it was because he was a public figure in a high profile case. Baraitser suggested that in the UK, being a high profile figure did not mean different treatment. Ellis said he was simply recounting the actual practice of the Alexandria jail in such cases.
Baraitser’s intervention was extraordinary given she had heard irrefutable evidence from Dr Blackwood that Assange had been placed into isolation in the medical wing in Belmarsh after somebody took a brief snatch of video of him, to prevent “reputational damage” to the prison. Yes, now she was saying high profile prisoners in the UK are not removed from the general prison population. She seems to have an infallible mental filter for blocking inconvenient information.
Her less subconscious filter was next in evidence, as there was time for a quick procedural judgement before the next witness, on the question of the decision of the prison governor on Julian Assange in the razor blade in the cell case. The record of the hearing on this ran to a minimum of 19 paragraphs, the judgement itself being in paragraph 19. Baraitser had indicated she was minded only to take para 19 as evidence, although the defence said the whole document contained very useful information. I am told that paras 1 to 18 include information on the extraordinary decision to place Julian Assange in solitary confinement disguised as “healthcare”, including the fact Belmarsh chief medic Dr Daly had produced not one of the compulsory monthly medical reports in his five months on the medical wing.
In one of those accommodations I find inexplicable, the defence conceded, without forcing Baraitser to a judgement, that paragraphs 1 to 18 should be ignored and only para 19 accepted as evidence, on the understanding it did establish the existence of the razor blade and thus vindicate Prof Kopelman’s judgement, and showed the charge had merely been dismissed as not timeous.
Yancey Ellis’s cross-examination above reads very well, and he did provide good answers to the prosecution attack. But he sounded rattled and nervous, and the performance was less convincing than it reads. This was to get much worse for the defence.
The next witness was Joel Sickler. He has a Master’s degree in the administration of justice and has worked for forty years in sentencing and advocacy. He is head of an organisation called Justice in Alexandria, Virginia, an expert in prison conditions, and has visited over 50 prisons across the United States. His organisation makes representations to the court on which institutions are suitable for a prisoner. He testified that he had made dozens of visits to the Alexandria Detention Centre.
He testified that in line with policy Assange would be placed in AdSeg due to his involvement in national security issues and concerns he might pass secrets on to other prisoners. He might also be categorised as needing protection from other prisoners and from self-harm. He would have zero to very limited contact with other prisoners. Sickler characterised Kromberg’s claim that inmates could communicate with each other through the steel doors and thick plexiglass windows as “ridiculous”. If SAMs were applied on top, that involved statutory isolation.
Sickler said that his knowledge of post-incarceration conditions at ADX Florence in Colorado came largely from reading reports. He had one client in there who was not subject to SAMs but was still effectively in solitary confinement for twenty years, despite a clean conduct record. Fitzgerald asked about provision of medical and psychiatric care, and Sickler stated that across the federal system he had dozens of clients who had found a way to commit suicide. In ADX specifically, there was a possibility of being transferred to a Federal medical centre in extreme cases.
At the ADX, Assange would be kept in the SSU known as the H block. With or without SAMs, contact with other prisoners would be completely barred. Contact with the outside world would be extraordinarily limited. Any contact permitted with family would be monitored by the FBI. One 15-minute phone call was allowed per month. Post conviction, contact with lawyers was very limited.
Fitzgerald asked how you could appeal against SAMs or other prison conditions. Sickler replied that appealing even over minor administrative matters virtually never succeeds. SAMs can only be varied by the Attorney General. In the prison system generally, Sickler had filed many thousands of requests on prison conditions and perhaps a dozen had succeeded. With SAMs there was effectively no chance. Solitary confinement could be indefinite in ADX – there was no upper limit.
Fitzgerald asked about changes in the prison after the Cunningham Mitigation settlement. Sickler said changes had been nominal. Any real improvement had only affected lower security prisoners. On prison conditions in general “Official statements, public pronouncements are one thing, reality in prison is something else”. The affidavit by Dr Alison Leukefeld for the government looked great on paper but was not the practice. On the other hand, reports by organisations like the Marshall Project exactly matched with his practical experience. Official statistics, like only 3% of federal prisoners having mental health problems, “do not ring true to me”. There was a significant risk Assange would not receive adequate physical and mental healthcare.
Clair Dobbin then rose to cross-examine. Again, I will report this as dialogue.
Dobbin What do you actually do? Do you work for the defence in cases? Sickler Yes, I help identify the appropriate institution for imprisonment and help clients navigate the prison system. Dobbin So prisoner advocacy? Sickler Yes. Dobbin So you only go to prisons to visit those you represent? Sickler Yes. Dobbin So you are not a prison inspector? Sickler No, I am not. Dobbin So you are not an academic? Sickler No, I am not. Dobbin So you are not a psychiatrist? Sickler No, I am not. Dobbin So you are not a researcher? Sickler No, I am not. Dobbin So you are not a doctor? You don’t get to see medical records? Sickler No, I am not. But I retain a medical consultant. I look at medical reports and I initiate conduct reports on a daily basis. Dobbin But you don’t have across the board access? Only in respect of your clients? Sickler That is right. Dobbin But you are not a clinician. You do not have the authority to validate medical opinion? Sickler No, but I employ a medical consultant. Dobbin Is this consultant a clinical psychiatrist? Sickler No. Dobbin Have you represented anybody on SAMs? Sickler No. SAM-like procedures, but not SAMs which can only be ordered by the attorney general. Dobbin But you said clearly in your affidavit that you have SAM clients. Did you put that there because you want to give the impression you have more expertise than you do? Sickler Of course not. Dobbin You have never been to the AdSeg area of Alexandria Detention Centre. So what is your opinion based on? Sickler Information given to me by numerous third parties including my clients, other lawyers and the public defender. Dobbin But did you not think it was important to make plain in your statement this is hearsay? Sickler I didn’t see the distinction as important. Dobbin Did you see the rules governing expert evidence to this court? Sickler Yes. I did not think that was against the rules. Dobbin You have seen Kromberg’s statement. Do you accept there may be legitimate reasons for Assange to be in AdSeg? Sickler Absolutely. Dobbin Prisoners in protective custody receive all the same services and rights as other prisoners? Sickler Of course. Dobbin Do you agree that he would be able to attend programmes with other prisoners? Sickler Not if under SAMs. Dobbin Do you agree that those in protective custody can meet with other prisoners? Sickler Certainly. Dobbin Do you agree there are no restrictions on access to lawyers? Sickler Absolutely, there is a constitutional right. Dobbin Do you agree that SAMs can only be imposed by the Attorney General? Sickler Yes. Dobbin What is the procedure for that? Sickler It involves consulting the intelligence agencies. Dobbin It needs the certification of one of the heads of one of the security agencies that the prisoner is a threat to the United States? Sickler Yes. Dobbin You cannot know that Assange will get SAMs. And SAMs differ from person to person. Sickler Yes, correct. Dobbin In the case of convicted terrorist El-Haj, he was under SAMs but still allowed access to family members? Sickler Yes, his immediate family. Dobbin Provisions depend on the individual prisoner? Sickler Yes. Dobbin The judge who convicted [another prisoner not heard clearly] entered the MMC personally to check on prison conditions. Does that not show there is good judicial supervision? Sickler I have seen it, on rare occasions. Dobbin SAMS does not restrict access to lawyers. Sickler How do you access lawyers in Florida ADX? And pre-trial there are scheduling difficulties. If he is under SAMs his lawyer will himself be subject to surveillance. Dobbin What evidence do you have for that? Sickler The Lynne Stewart case. Lindsay Lewis. Dobbin Lynne Stewart was running a message for jihadists (she added much alleged detail). Her client was subject to SAMs to prevent him running a terrorist organisation. Sickler The case, and others, had a chilling effect on the willingness of lawyers to take on SAM cases involving national security. Dobbin The Alexandria Detention Centre is not overcrowded Sickler No, it’s below capacity. It is a well-run jail. The staff are very professional. Dobbin Kromberg sets out very substantial medical staffing levels. Sickler I understand those are mostly private contractors, not prison staff. In practice prisoner needs are not meaningfully met. It takes a few days to a few weeks to get treatment. Dobbin But they do get sufficient treatment? Sickler There is no real psychiatric intervention. This is not top tier. Usually prisoners are just medicated. Dobbin So they have access to medication? And someone to talk to? Sickler Correct. Dobbin Your evidence only refers to one suicide, at the Metropolitan Correctional Centre. Sickler That is just one example, one of my current cases. Dobbin But two prison officers have been charged for that. Sickler We are always swift to blame a little man. Dobbin It was not the protocols that were wrong, just two people did not do their job. [This is possibly the Epstein case.] The ADC has a good record on suicide. Sickler It is a very very arduous, almost torturous system of confinement in AdSeg. Assange has depression and is on the autism spectrum. It will be unbearable for him. Even with healthy clients of mine, there has been a terrifying deterioration in these conditions. Dobbin The evidence is they are successful in preventing suicide at the ADC. Sickler Yes, they have a stellar record. Dobbin In the Babar Ahmad case (2012), the European Court of Human Rights considered SAMs and ruled it was not an unacceptable regime. Has anything changed since 2012? Sickler Not significantly. Dobbin You initially said in your report Assange might not be sent to ADX. Now you change your mind. Sentencing is at the discretion of the judge. There is no basis for your report. Sickler I changed my mind in the intervening period. From the second superseding indictment, the charge is now espionage and the government alleges Assange is a continuing threat to the USA. Dobbin You were a consultant in the Reality Winner case. She only got 53 months. Sickler She was a qualitatively different kind of defendant. Dobbin She was an insider. They normally get harsher sentences. She is serving her sentence in a medical facility. Sickler Not on medical grounds. It is the closest federal incarceration facility to her family. Dobbin You say Assange would be in solitary confinement. But Kromberg states that most inmates in special housing are in double cells with a cell-mate. Sickler That can be worse. Many are violent and mentally unwell. Assaults by cellmates are frequent.
There followed an interchange where Dobbin tried to trip up Sickler over the procedures for committing someone to ADX Florida, but he proved knowledgeable in detail.
Dobbin The procedures say that prisoners with health conditions will not be sent to the ADX unless there are serious security concerns. Sickler Abu Hamza is there and he has no arms. Dobbin There are just 14 people in ADX in this category. You have not been there. How do you get your information? Sickler Reports including the Lowenstein Center and the Center for Constitutional Rights Dobbin Prisoners at ADX do get family visits. Sickler How often would Mr Assange get family visits? Why don’t you tell the court? Dobbin [name not heard] a convicted terrorist who attempted to blow up a plane is in ADX and gets family visits and phone calls. Sickler He is allowed communication with two named family members. But how often is he allowed to call or see them? Dobbin You have said solitary confinement at the ADX can be indefinite? Sickler That’s my impression. Dobbin What is your source of information? Sickler It’s from prisoners and lawyers. It’s anecdotal, I admit. But are you saying at some point the US government will decide that Assange won’t be likely to divulge classified information? Dobbin Do you understand that there are three levels in the H block that defendants can work themselves through to get out? Sickler No. Dobbin Did you know that even in SAMs, prisoners can mingle together for social periods? Sickler No, I did not. Dobbin (Quotes ECHR judgement endorsing the stepdown programme) Sickler You have to be within 2 years of release. If you are designated by the Attorney General for SAMs, you are not eligible for that programme. Conditions in the ADX are extraordinarily arduous. Dobbin Kromberg sets out the stages and says that stage 3 allows contact with other prisoners
Sickler It sounds awful. Even when you reach phase 3 with the extra privileges. If they do that in practice, well that’s wonderful. It still sounds awful to me. Dobbin There is a progression. Sickler I should like to know how long it takes. Dobbin Do you know the numbers who have come out of the ADX? Shouldn’t you know these facts? Sickler The place is torturous. That is not in dispute. Dobbin How inmates are treated will depend on how big a security risk they are. Sickler Precisely. Dobbin Medical care at the ADX is not affected by SAMs. Sickler OK. Dobbin Do you agree that as a result of the Cunningham Settlement there has been a substantial improvement? Sickler I cannot say. Dobbin Gordon Kromberg testifies that ADX Colorado has more mental health provision per inmate than any other federal prison. Sickler That is needed because of the extreme circumstances people are kept in. Dobbin Does that not indicate to you that the standard of care is good? Sickler Is there meaningful patient/clinician interaction? I don’t know. Dobbin The Cunningham Settlement led to over 100 people being removed from ADX. Sickler But how many had SAMs? Dobbin We have established that you don’t know anything about the movement out of people with SAMs. Sickler Yes, you have established that. Dobbin As a result of the Cunningham Mitigation two new mental institutions were established. Sickler Yes, for schizophrenia and psychoses. Dobbin A Department of Corrections report of 2014 shows that some inmates never want to leave ADX as they find the standard of care so good. They re-offend to get back in. Sickler They cherry-pick whom they speak to. Most prisoners are desperate to get out. Dobbin Every report gets an official response from the Board of Prisons and policies are constantly upgraded. Sickler Yes, but I just don’t see results in practice. I had one client recently, a prisoner, who rather than being treated was beaten up and thrown naked in the hole. It took months before a court got him out. Another was refused his diagnosed and prescribed medicines as not in the BoP formulary. Dobbin In the first case there was judicial review. So the system works. Sickler After six months.
There was more of this. The cross-examination lasted two and a half hours. Again, it seems much more convincing from Sickler written down than it did live, where he appeared shaken by the aggression. The answers he gave which sound like firm responses, sounded petulant and throwaway when he delivered them. He gave the impression that it was not worth his time to engage with the unreasonable Dobbin and, while I heartily sympathise, that was not the requirement of the moment.
Sickler very definitely gave the impression he was at times agreeing with the prosecutor just because that was the easier line of action. He often did so in a voice that suggested scepticism, sarcasm or mockery, but that was not plain in his words and will not be apparent in the transcript. In normal life, making short sarcastic responses like “Oh yes, it’s marvellous” in reply to ludicrous assertions by the prosecution about the provision of US supermax prisons, may work as a form of ridicule; in a court setting it does not work at all. In fairness to Mr Sickler, being at home rather than actually in a court session will partly account for it. But the court record will say Sickler says prisoner provision in US supermax prisons is marvellous. It doesn’t note sarcasm.
Dobbin is officious beyond the point of offensive; she comes over as properly obnoxious as a person.
The unpleasant irony in all this is that both Sickler and Ellis were mocked and scorned for their lack of personal knowledge of ADX Colorado, when prosecution and judge had combined just on Friday to bar two witnesses who the defence both wished to testify, who had expert personal experience of ADX Florence. That is yet another striking example of the fact that this process is divorced from any genuine attempt to find truth or justice.
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Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
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It is hard to believe, but Judge Baraitser on Friday ruled that there will be no closing speeches in the Assange extradition hearing. She accepted the proposal initially put forward by counsel for the US government, that closing arguments should simply be submitted in writing and without an oral hearing. This was accepted by the defence, as they need time to address the new superseding indictment in the closing arguments, and Baraitser was not willing for oral argument to take place later than 8 October. By agreeing to written arguments only, the defence gained a further three weeks to put together the closing of their case.
But this entire hearing has been conducted in effective secrecy, a comprehensive secrecy that gives sharp insight into the politico-economic structures of current western society. Physical access to the courtroom has been extremely limited, with the public gallery cut to five people. Video link access has similarly been extremely limited, with 40 NGOs having their access cut by the judge from day 1 at the Old Bailey, including Amnesty International, PEN, Reporters without Borders and observers from the European Parliament, among many others. The state and corporate media have virtually blacked out this hearing, with a truly worrying unanimity, and despite the implications of the case for media freedom. Finally, the corporations that act as internet gatekeepers have heavily suppressed social media posts about Assange, and traffic to those few websites which are reporting.
I am reminded of the words of another friend of mine, Harold Pinter, in accepting the Nobel Prize for Literature. It seems perfectly to fit the trial of Julian Assange:
It never happened. Nothing ever happened. Even while it was happening it wasn’t happening. It didn’t matter. It was of no interest. The crimes of the United States have been systematic, constant, vicious, remorseless, but very few people have actually talked about them. You have to hand it to America. It has exercised a quite clinical manipulation of power worldwide while masquerading as a force for universal good. It’s a brilliant, even witty, highly successful act of hypnosis.
Harold sent me a copy of that speech printed for the ceremony, with a kind dedication that I knew was by then painful for him to write as lines of ink shot uncontrollably across the page. After he died, I had it framed and it hangs on my study wall. That was a mistake. When I get back home to Edinburgh, I will break the frame and get the pamphlet out. It needs to be read, often.
The closing arguments are the part of any trial which the media is most likely to report. They sum up all the evidence heard on both sides and what might be drawn from the evidence. To have these simply submitted on paper, without the drama of the courtroom, is to ensure that the hearing will continue to be a media non-event.
The timetable which has been accepted is that the defence will lodge their closing arguments in writing on 30 October, the prosecution will reply on 13 November, with the defence able to make a further response by 20 November purely on any legal questions; Baraitser will then deliver her judgement in January. She made plain that she would not accept any further submissions based on developments in the interim, including the US Presidential election.
Friday was yet another day when the process was as important to the result as the evidence heard, if not more so. The day had started with discussion over a defence attempt to submit two new statements from two new witnesses. Both were psychiatrists with expert knowledge of the US prison system. Previous witnesses, both psychiatrists and US attorneys, who had testified for the defence had been criticised by the prosecution as not having direct knowledge of the specific prison, ADX Florence, Colorado, in which Julian would serve his sentence if convicted.
The prosecution had provided two affidavits on conditions in the prison, one from US Assistant Attorney Gordon Kromberg dated 20 August 2020 and one from a prison psychiatrist named Leukefeld dated 3 September 2020. Now it is a very strange feature indeed of these extradition hearings that the defence have no right to cross-examine witnesses who are US federal employees. Gordon Kromberg has submitted five separate affidavits, containing much which is disputed hotly as to fact, but he cannot be cross-examined. Nor may Leukefeld be cross-examined.
Fitzgerald made the point that the defence had to respond to this prosecution evidence somehow, as it could not be cross-examined. He stated that as it had been submitted by the prosecution with the last four weeks, it had taken the defence a little time to find expert witnesses who were in a position to contradict, and then to take their evidence. The defence now had two excellent witnesses with personal knowledge of ADX Florence, and wished to enter their evidence. The defence accepted that because Baraitser had stated the trial will end next week, there would not be time to cross-examine these new witnesses. But then, the prosecution witnesses could not be cross-examined either. As Fitzgerald put it “the prosecution do not have a divine right to cross-examine our witnesses when we do not have any right to cross-examine their witnesses.”
For the US government, James Lewis QC “strongly objected” to this new evidence being submitted. He said the defence had more than a year to prepare these statements and kept trying to prolong the hearing. He said that the defence witnesses did not have the authority of the US government witnesses, and they needed to be cross-examined because many of the defence “experts” were not really expert at all. If these witnesses were called, he would insist on the right to cross-examine and that would extend the hearing.
Having heard the lawyers, Judge Baraitser yet again read out a ruling from her laptop which had been written before she heard either Lewis or Fitzgerald speak. Entirely predictably, she ruled that the defence statements were not admissible, as being too late. The defence “had had a fair opportunity to investigate”. Defence witnesses must be liable to cross-examination. These proceedings had lasted too long already and there must be an end to new evidence. “As a matter of fairness a line must be drawn”, she intoned. She seemed particularly pre-occupied with the notion of “fairness”, which apparently almost always entails ruling against the defence.
For the first time in the course of these hearings, Baraitser did look up briefly from her pre-prepared judgement to insert a reference to something Fitzgerald had said in court, that one possible approach might be that the new defence evidence could simply be cited as though it were an academic article. But only to dismiss it.
So, no closing speeches and two key witnesses not admitted.
We then moved on to the next leg of this very peculiar procedure, in which “case management” always trumps justice, with another defence evidence statement of which an agreed “gist” is simply read into the record, with no cross-examination. Under this procedure, which Baraitser expressly initiated to save time, where the defence will agree, witness statements are whittled down simply to those facts which are uncontested, and a “gist” or edit of that edit is read out, with the whole redacted statement entered into the court record.
The defence have allowed themselves to be too easily browbeaten into submission on all of this “time saving”, which is of course pursued by the judge and the US government in the interests of having as little embarrassing information aired in public as possible, and closing down the hearing quickly. One consequence of the rather hangdog defence approach to this is that, after the first very effective reading of key passages from el-Masri’s evidence, subsequent “gists” read into the record have been raced through, as though the defence realise this evidence has been reduced to a pointless formality, with no expression or weight in the reading and at a speed that far exceeds my ability to take an accurate note.
Like Thursday’s evidence from John Young of Cryptome, the witness statement of Jakob Augstein was important evidence that went to the fact that it was not Assange or Wikileaks who first published the unredacted material, and Augstein added additional information that Assange had tried to prevent it. Before Der Freitag had published its article of 25 August 2011, which revealed that both the password key and the file were out there, Assange had telephoned Augstein, editor of Der Freitag:
This evidence negates the main thrust of the prosecution case, so much so that I cannot understand why the defence have agreed to having it slipped into the record in a manner nobody notices.
The other interesting point about Augstein’s evidence is that it pointed squarely at the possibility that it has been Daniel Domscheit-Berg who, in defecting from Wikileaks, had been responsible for the emergence of the encrypted but unredacted cache on the net.
We then came on to the only witness who was actually heard in person on Friday, Patrick Eller, by videolink from the States. He was to address the accusation that Assange conspired with Chelsea Manning to crack a hash key password and obtain the documents which Manning leaked, and/or to help Manning cover her tracks. Securing Eller was rather a coup for the defence as there could not be a better expert witness on this particular subject. Eller is CEO of Metadata Forensics and a Professor teaching forensic evidence at the US Army Law School. A 25 year veteran, he was commander of the US Army digital forensic investigations unit at US Army Criminal Investigation Command in Virginia.
I am not going to use my usual technique of reporting through Eller’s evidence and cross-examination chronologically, because the subject matter does not lend itself to that, being both highly technical and delivered in a very disjointed fashion. This was partly due to the approach by James Lewis QC, counsel for the US government, who adopted a policy of asking long runs of technical questions about the operation of the computer systems, most of which were basic, irrelevant, and both required and got the simple answer “yes”, and then after a run of a dozen to twenty “yeses”, Lewis would throw in a more dubious proposition. This did once work when he got a “yes” to the proposition that “a great hacker can crack a great cypher” by this system of inducing impulsive repetition of “yes”. Lewis went on to claim that Assange had once self-described as “a fantastic hacker”.
I am not attempting to hide the fact that there were passages of Eller’s testimony in court which I simply did not understand. When I get a new laptop, it takes me days to work out how to turn it on and I am yet to find how to transfer any information from an old one. There are very definitely readers who would have done a much better job than me of reporting this, but then I was there and you were not. So these, for me, were the key points of Eller’s evidence.
With respect to the Jabber conversations between Chelsea Manning and “Nathaniel Frank”, which form the basis of the charge of aiding the commission of computer intrusion, there is no forensic evidence that “Nathaniel Frank” is Julian Assange, or indeed any single individual.
The “Hash key”, or encrypted half of a password, which Manning had requested assistance with cracking could not have been cracked with the technology available in 2010. It was “impossible” and “computationally infeasible”, according to Eller. This could not have been done with a brute force attack, dictionary attack or rainbow table. In cross-examination Lewis explored this at great length and read from a 2009 article on a vulnerability in Windows XP precisely with regard to the hash key system. Eller replied this was well known, but Microsoft had fixed it with a patch well before the events in question. That made it in practice impossible for the code to be cracked using one half of the hash key. Lewis did not query this and quickly moved on; it appeared he knew of the patch all along.
Perhaps Eller’s most telling evidence was that Manning had in fact already downloaded the bulk of the material passed to the Wikileaks dropbox before initiating the conversation with Frank at all. Manning had full access to the SIPRnet, or classified infranet of material up to secret, under her own username, and had already been downloading using a program called wget. Furthermore, Manning had already been taking steps to protect her identity by rebooting from a Linux CD thus evading several Windows security features. That would have been at least as effective as downloading from the FTP account if preventing detection were the goal.
Manning therefore had no need of help from “Nathaniel Frank”, either to obtain the classified documents or to cover her tracks, although the problem of downloads being traceable to the IP address would remain. But this would not have been solved anyway by Manning’s interest in logging in to a File Transfer Protocol account. There was much discussion as to whether the FTP account would or would not have admin privileges, but as Eller was insistent it would neither have increased her access to classified material nor have better enabled her to cover her tracks, and that they could not have cracked the password with the hash key half anyway, I did not quite understand where that discussion was leading.
One particularly jolting bit of information from Eller was that the SIPRnet from which Manning had downloaded all the material was open to “millions” of users. Eller’s final key point was that all of his evidence was consistent with the findings of the prosecution at Manning’s court martial, and presumably thus with the investigations of his old forensic team. Some of the lines taken by Lewis – including that it was in fact possible to crack the password from the half hash key – are inconsistent with the US prosecution’s own forensic evidence at the Manning court martial.
Eller’s evidence is an example of those occasions where I know the comments below the line will be much more informed than my own efforts!
Finally and ominously, Baraitser heard arguments on whether the full medical records of Assange from the doctors and psychiatrists who had given evidence should their public be released to the media. They have been requested by the press. The records contain a huge amount of background and many intimate details of Julian’s childhood and relationships which are in evidence but were not given in open court by the doctors. Both defence and prosecution opposed release, but Baraitser kept referring to “open justice”. You will remember that earlier this year, Baraitser decided that it was in the interests of “open justice” to release to the media the identity of Julian’s partner Stella Moris and her children. That too was against the wishes of both prosecution and defence.
That a judge so intent on shutting down or refusing to hear defence evidence is suddenly so preoccupied with “open justice” when it comes to hurting Assange by release of his deeply personal information, is a great irony. Baraitser will rule on this on Monday and I hope humanity has prevailed with her.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
During the hearing of medical evidence the last three days, the British government has been caught twice directly telling important lies about events in Belmarsh prison, each lie proven by documentary evidence. The common factor has been the medical records kept by Dr Daly, head of the jail’s medical services. There has also been, to put it at its very lightest, one apparent misrepresentation by Dr Daly. Personally, I am wary of the kind of person who impresses Ross Kemp.
Here is a still of Dr Daly from Ross Kemp’s documentary on Belmarsh prison.
This is Mr Kemp’s description of the medical wing at Belmarsh: “Security is on another level here with six times more staff per inmate than the rest of the jail.”
While in the medical wing or “healthcare”, Julian Assange was in effect in solitary confinement, and three psychiatrists and a physician with extensive experience of treating trauma have all testified in court that Assange’s mental and physical condition deteriorated while he was in “healthcare” for several months. They also said he improved after he left “healthcare”. That says something profound about the “healthcare” being provided. The same doctors testified that Assange has a poor relationship with Dr Daly and will not confide his symptoms or feelings to her, and this has also been asserted by defence council.
That is all essential background to the lies. Now let me come to the lies. Unfortunately to do so I must reveal details of Julian’s medical condition which I had withheld, but I think the situation is so serious I must now do that.
I did not report that Professor Michael Kopelman gave evidence that, among other preparations for suicide, Julian Assange had hidden a razor blade in his folded underwear, but this had been discovered in a search of his cell. As I did report, Kopelman was subjected to an extremely aggressive cross-examination by James Lewis, which in the morning had focused on the notion that Julian Assange’s mental illness was simply malingering, and that Kopelman had failed to detect this. The razor blade was a key factor in Lewis’s browbeating of Kopelman, and he attacked him on it again and again and again.
Lewis stated that Kopelman “relied on” the razor blade story for his diagnosis. He then proceeded to portray it as a fantasy concocted by Assange to support his malingering. Lewis asked Kopelman repeatedly why, if the story were true, it was not in Dr Daly’s clinical notes? Surely if a prisoner, known to be depressive, had a razor blade found in his cell, it would be in the prison medical records? Why had Prof Kopelman failed to note in his report that there was no evidence for the razor blade in Dr Daly’s medical records? Was he hiding that information? Was it not very strange that this incident would not be in the medical notes?
In an attempt to humiliate Kopelman, Lewis said
“You say you do not rely on the razor blade for your diagnosis. But you do rely on it. Let us then look at your report. You rely on the razor blade at paragraph 8. You mention it again at paragraph 11a. Then 11c. Then paragraph 14, paragraph 16, 17b, 18a. Then we come to the next section and the razor blade is there at paragraph 27 and 28. Then again in the summary it is at paragraphs 36 and again at paragraph 38. So tell me Professor, how can you say that you do not rely on the razor blade?”
[I do not give the actual paragraph numbers; these are illustrative].
Lewis then went on to invite Kopelman to change his diagnosis. He asked him more than once if his diagnosis would be different if there was no razor blade and it were an invention by Assange. Kopelman was plainly unnerved by this attack. He agreed it was “very odd indeed” it was not mentioned in the medical notes if it were true. The plain attack that he had naively believed an obvious lie disconcerted Kopelman.
Except it was Lewis who was not telling the truth. There really was a concealed razor blade, and what Assange had told Kopelman, and what Kopelman had believed, was true in every single detail. In a scene straight out of a TV legal drama, during Kopelman’s testimony, the defence had managed to obtain the charge sheet from Belmarsh Prison – Assange had been charged with the offence of the razor blade. The charge sheet is dated 09.00 on 7 May 2019, and this is what it reads:
Governor,
On the 05/05/19 at approximately 15.30, myself and Officer Carroll were conducting a routine matrix search in 2-1-37 solely occupied by Mr Assange A9379AY. He was asked before we began the search if everything in the cell belonged to him, to which he replied “To my knowledge yes”. During the process of this search I lifted a pair of his personal underwear up whilst searching the cupboard. When I lifted them I heard a metal object drop inside the cupboard. When I investigated what it was I saw half of a razor blade which had been concealed in his personal underwear. This had now been placed in evidence bag number M0001094.
This concludes my report
Signed
Off Locke
I was later shown a copy and got a quick shot:
When on Tuesday Edward Fitzgerald QC produced this charge sheet in court, it did not appear to be news to the prosecution. James Lewis QC panicked. Rather too quickly, Lewis leapt to his feet and asked the judge that it should be noted that he had never said that there was no razor blade. Fitzgerald responded that was not the impression that had been given. From the witness box and under oath, Kopelman stated that was not the impression he had been given either.
And it was most certainly not the impression I had been given in the public gallery. In repeatedly asserting that, if the razor blade existed, it would be in the medical notes, Lewis had, at the very least, misled the witness on a material question of fact, that had actually affected his evidence. And Lewis had done so precisely in order to affect the evidence.
Panicking, Lewis then gave the game away further by making the desperate assertion that the charge against Mr Assange had been dismissed by the Governor. So the prosecution definitely knew rather more about the events around the razor blade than the defence.
Baraitser, who was aware that this was a major car crash, grasped at the same straw Lewis was clinging to in desperation, and said that if the charge had been dismissed, then there was no proof the razor blade existed. Fitzgerald pointed out this was absurd. The charge may have been dismissed for numerous reasons. The existence of the blade was not in doubt. Julian Assange had attested to it and two prison warders had attested to it. Baraitser said that she could only base her view on the decision of the Prison Governor.
However Baraitser may try to hide it, Lewis attacked Prof Kopelman over the existence of the blade when Lewis gave every appearance afterwards of a man who knew full well all along that there was compelling evidence the blade did exist. For Baraitser to try to protect both Lewis and the prosecution by pretending the existence of the blade is dependent on the outcome of the subsequent charge, when all three people in the cell at the time of the search agreed to its existence, including Assange, is perhaps Baraitser’s most remarkable abuse of legal procedure yet.
After his evidence, I went for a gin and tonic with Professor Kopelman, who is an old friend. We had no contact at all for two years, precisely because of his involvement in the Assange case as a medical expert. Michael was very worried he had not performed strongly in his evidence session in the morning, though he had been able to answer more clearly in the afternoon. And his concern about the morning was because he had been put off by the razor blade question. He had firmly understood Lewis to be saying that there was no razor blade in prison records and Michael had therefore been deceived by Julian. If he had been deceived, it of course would have been a professional failing and Lewis had successfully caused him anxiety while in the witness box.
I should make plain I do not believe for one moment the government side were not aware all along the razor blade was real. Lewis cross-examined using detailed prepared notes on the razor blade and with all the references to it tabulated in Kopelman’s report. That this was undertaken by the prosecution without asking the prison if the incident were true, defies common sense.
On Thursday Edward Fitzgerald handed the record of the prison hearing where the charge was discussed to Baraitser. It was a long document. The Governor’s decision was at paragraph 19. Baraitser told Fitzgerald she could not accept the document as it was new evidence. Fitzgerald told her she had herself asked for the outcome of the charge. He said the document contained very interesting information. Baraitser said that the Governor’s decision was at paragraph 19, that was all she had asked for, and she would refuse to take the rest of the document into consideration. Fitzgerald said the defence may wish to make a formal submission on that.
I have not seen this document. Based on Baraitser’s earlier pronouncements, I am fairly certain she is protecting Lewis in this way. At para 19 the Governor’s decision probably dismisses the charges as Lewis said. But the earlier paras, which Baraitser refuses to consider, almost certainly make plain that Assange’s possession of the razor blade was undisputed, and very probably explains his intention to use it for suicide.
So, to quote Lewis himself, why would this not be in Dr Daly’s medical notes?
Even that startling story I did not consider sufficiently powerful to justify publishing the alarming personal details about Julian. But then it happened again.
On Thursday morning, Dr Nigel Blackwood, Reader in Forensic Psychiatry at Kings College London, gave evidence for the prosecution. He essentially downplayed all of Julian’s diagnoses of mental illness, and disputed he had Asperger’s. In the course of this downplaying, he stated that when Julian had been admitted to the healthcare wing on 18 April 2019, it had not been for any medical reason. It had been purely to isolate him from other prisoners because of the video footage of him that had been taken and released by a prisoner.
Fitzgerald asked Blackwood how he knew this, and Blackwood said Dr Daly had told him for his report. The defence now produced another document from the prison that showed the government was lying. It was a report from prison staff dated 2.30pm on 18 April 2019 and specifically said that Julian was “very low” and having uncontrollable suicidal urges. It suggested moving him to the medical wing and mentioned a meeting with Dr Daly. Julian was in fact then moved that very same day.
Fitzgerald put it to Blackwood that plainly Assange was moved to the medical wing for medical reasons. His evidence was wrong. Blackwood continued to assert Assange was moved only because of the video. Dr Daly’s medical notes did not say he was moved for medical reasons. The judge pulled up Fitzgerald for saying “nonsense”, although she had allowed Lewis to be much harder than that on defence witnesses. Fitzgerald asked Blackwood why Assange would be moved to the medical wing because of a video taken by another prisoner? Blackwood said the Governor had found the video “embarrassing” and was concerned about “reputational damage” to the prison.
So let us look at this. Dr Daly did not put in the medical notes that Assange had concealed a razor for suicide in his cell. Dr Daly did not put in the medical notes that, on the very day Assange was moved to the medical wing, a staff meeting had said he should be moved to the medical wing for uncontrollable suicidal urges. Then Daly gives Blackwood a cock and bull story on reasons for Assange’s removal to the medical wing, to assist him in his downplaying of Assange’s medical condition.
Or let us look at the alternative story. The official story is that Healthcare – to quote Ross Kemp where “security is on another level” – is used for solitary confinement, to hold prisoners in isolation for entirely non-medical reasons. Indeed, to avoid “embarrassment”, to avoid “reputational damage”, Assange was kept in isolation in “healthcare” for months while, according to four doctors including on this point even Blackwood, his health deteriorated because of the isolation. While under Dr Daly’s “care”. And that one is the official story. The best they can come up with is “he was not sick, we put him in “Healthcare” for entirely illegitimate reasons as a punishment.” To avoid “embarrassment” if prisoners took his photo.
I am going to write to Judge Baraitser applying for a copy of the transcript of Lewis cross-examining Professor Kopelman on the razor blade, with a view to reporting Lewis to the Bar Council. I do wonder whether the General Medical Council might not have reason to consider the practice of Dr Daly in this case.
The final witness was Dr Sondra Crosby, as the doctor who had been treating Julian since his time in the Ecuadorean Embassy. Dr Crosby seemed a wonderful person and while her evidence was very compelling, again I see no strong reason to reveal it.
At the end of Thursday’s proceedings, there were two witness statements read very quickly into the record. This was actually very important but passed almost unnoticed. John Young of cryptome.org gave evidence that Cryptome had published the unredacted cables on 1 September 2011, crucially the day before Wikileaks published them. Cryptome is US based but they had never been approached by law enforcement about these unredacted cables in any way nor asked to take them down. The cables remained online on Cryptome.
Similarly Chris Butler, Manager for Internet Archive, gave evidence of the unredacted cables and other classified documents being available on the Wayback machine. They had never been asked to take down nor been threatened with prosecution.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
On Wednesday the trap sprang shut, as Judge Baraitser insisted the witnesses must finish next week, and that no time would be permitted for preparation of closing arguments, which must be heard the immediate following Monday. This brought the closest the defence have come to a protest, with the defence pointing out they have still not addressed the new superseding indictment, and that the judge refused their request for an adjournment before witness hearings started, to give them time to do so.
Edward Fitzgerald QC for the defence also pointed out that there had been numerous witnesses whose evidence had to be taken into account, and the written closing submissions had to be physically prepared with reference to the transcripts and other supporting evidence from the trial. Baraitser countered that the defence had given her 200 pages of opening argument and she did not see that much more could be needed. Fitzgerald, who is an old fashioned gentleman in the very nicest sense of those words, struggled to express his puzzlement that all of the evidence since opening arguments could be dismissed as unnecessary and of no effect.
I fear that all over London a very hard rain is now falling on those who for a lifetime have worked within institutions of liberal democracy that at least broadly and usually used to operate within the governance of their own professed principles. It has been clear to me from Day 1 that I am watching a charade unfold. It is not in the least a shock to me that Baraitser does not think anything beyond the written opening arguments has any effect. I have again and again reported to you that, where rulings have to be made, she has brought them into court pre-written, before hearing the arguments before her.
I strongly expect the final decision was made in this case even before opening arguments were received.
The plan of the US Government throughout has been to limit the information available to the public and limit the effective access to a wider public of what information is available. Thus we have seen the extreme restrictions on both physical and video access. A complicit mainstream media has ensured those of us who know what is happening are very few in the wider population.
Even my blog has never been so systematically subject to shadowbanning from Twitter and Facebook as now. Normally about 50% of my blog readers arrive from Twitter and 40% from Facebook. During the trial it has been 3% from Twitter and 9% from Facebook. That is a fall from 90% to 12%. In the February hearings Facebook and Twitter were between them sending me over 200,000 readers a day. Now they are between them sending me 3,000 readers a day. To be plain that is very much less than my normal daily traffic from them just in ordinary times. It is the insidious nature of this censorship that is especially sinister – people believe they have successfully shared my articles on Twitter and Facebook, while those corporations hide from them that in fact it went into nobody’s timeline. My own family have not been getting their notifications of my posts on either platform.
The US Government responded to Baraitser’s pronouncement enthusiastically with the suggestion that closing arguments did not ought to be heard AT ALL. They ought merely to be submitted in writing, perhaps a week after final witnesses. Baraitser appeared eager to agree with this. A ruling is expected today. Let me add that two days ago I noticed the defence really had missed an important moment to stand up to her, when the direction of her railroading became evident. It appears that because of the ground the defence already conceded at that stage, Noam Chomsky is one of the witnesses from whom we now will not hear.
I am afraid I am not going to give you a substantive account of Wednesday’s witnesses. I have decided that the intimate details of Julian’s medical history and condition ought not to be subject to further public curiosity. I know I cannot call back what others have published – and the court is going to consider press requests for the entire medical records before it. But I have to do what I believe is right.
I will say that for the defence, Dr Quinton Deeley appeared. Dr Deeley is Senior Lecturer in Social Behaviour and Neurodevelopment at the Institute of Psychiatry, Psychology, and Neuroscience (IOPPN), King’s College London and Consultant Neuropsychiatrist in the National Autism Unit. He is co-author of the Royal College Report on the Management of Autism.
Dr Deeley after overseeing the standard test and extensive consultation with Julian Assange and tracing of history, had made a clear diagnosis which encompassed Asperger’s. He described Julian as high-functioning autistic. There followed the usual disgraceful display by James Lewis QC, attempting to pick apart the diagnosis trait by trait, and employing such tactics as “well, you are not looking me in the eye, so does that make you autistic?”. He really did. I am not making this up.
I should say more about Lewis, who is a strange character. Privately very affable, he adopts a tasteless and impolite aggression in cross-examination that looks very unusual indeed. He adopts peculiar postures. After asking aggressive questions, he strikes poses of theatrical pugilism. For example he puts arms akimbo, thrusts out his chin, and bounces himself up on his feet to the extent that his heels actually leave the floor, while looking round at the courtroom in apparent triumph, his gaze pausing to fix that of the judge occasionally. These gestures almost always involve throwing back one or both front panels of his jacket.
I think this is some kind of unconscious alpha male signalling in progress, and all these psychiatrists around might link it to his lack of height. It is display behaviour but not really very successful. Lewis has grown a full set during lockdown and he appears strikingly like a chorus matelot in a small town production of HMS Pinafore.
There is a large part of me that wants to give details of the cross-examination because Deeley handled Lewis superbly, giving calm and reasoned replies and not conceding anything to Lewis’s clumsy attempts to dismantle his diagnosis. Lewis effectively argued Julian’s achievements would be impossible with autism while Deeley differed. But there is no way to retell it without going into the discussion of medical detail I do not wish to give. I will however tell you that Julian’s father John told me that Julian has long known he has Asperger’s and will cheerfully say so.
The second psychiatrist on Wednesday, Dr Seena Fazel, Professor of Forensic Psychiatry at the University of Oxford, was the first prosecution witness we have heard from. He struck me as an honest and conscientious man and made reasonable points, well. There was a great deal of common ground between Prof Fazel and the defence psychiatrists, and I think it is fair to say that his major point was that Julian’s future medical state would depend greatly on the conditions he was held in with regard to isolation, and on hope or despair dependent on his future prospects.
Here Lewis was keen to paint an Elysian picture. As ever, he fell back on the affidavit of US Assistant attorney Gordon Kromberg, who described the holiday camp that is the ADX maximum security prison in Florence, Colorado, where the prosecution say Julian will probably be incarcerated on conviction.
You will recall this is the jail that was described as a “living hell” and a “fate worse than death” by its own warden. Lewis invited Prof Fazel to agree this regime would not cause medical problems for Julian, and to his credit Prof Fazel, despite being a prosecution witness, declined to be used in this way, saying that it would be necessary to find out how many of Kromberg’s claims were true in practice, and what was the quality of this provision. Fazel was unwilling to buy in to lies about this notorious facility.
Lewis was disingenuous because he knows, and the prosecution have conceded, that if convicted Julian would most likely be kept in H block at the ADX under “Special Administrative Measures.” If he had read on a few paragraphs in Kromberg’s affidavit he would have come to the regime Julian would actually be held under:
So let us be clear about this. William Barr decides who is subjected to this regime and when it may be ameliorated. For at least the first twelve months you are in solitary confinement locked in your cell, and allowed out only three times a week just to shower. You are permitted no visits and two phone calls a month. After twelve months this can be ameliorated – and we will hear evidence this is rare – to allow three phone calls a month, and brief release from the cell five times a week to exercise, still in absolute isolation. We have heard evidence this exercise period is usually around 3am. After an indeterminate number of years you may, or may not, be allowed to meet another human being.
Behind Baraitser’s chilly disdain, behind Lewis’s theatrical postures, this hell on Earth is what these people are planning to do to Julian. They are calmly discussing how definitely it will kill him, in full knowledge that it is death in life in any event. I sit in the public gallery, perched eight feet above them all, watching the interaction of the characters in this masque, as the lawyers pile up their bundles of papers or stare into their laptops, as Lewis and Fitzgerald exchange pleasantries, as the friendly clerks try to make the IT systems work, and my mind swims in horrified disbelief. They are discussing a fate for my friend as horrible as that of the thousands who over 500 years were dragged from this very spot and strung up outside. They are all chatting and working away as though we were a normal part of civilised society.
Then I go back to my hotel room, type it all up and post it. The governments who are destroying Julian have through their agencies pushed the huge corporations who now control the major internet traffic gateways, to ensure my pained and grieving account is seen by very few. My screams of pain and horror are deadened by thick padded walls. We are all locked in.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
When Daniel Ellsberg released the Pentagon Papers, the US Government burgled the office of his psychiatrist to look for medical evidence to discredit him. Julian Assange has been obliged to submit himself, while in a mentally and physically weakened state and in conditions of the harshest incarceration, to examination by psychiatrists appointed by the US government. He has found the experience intrusive and traumatising. It is a burglary of the mind.
Julian is profoundly worried that his medical history will be used to discredit him and all that he has worked for, to paint the achievements of Wikileaks in promoting open government and citizen knowledge as the fantasy of a deranged mind. I have no doubt this will be tried, but fortunately there has been a real change in public understanding and acknowledgement of mental illness. I do not think Julian’s periodic and infrequent episodes of very serious depression will be successfully portrayed in a bad light, despite the incredibly crass and insensitive attitude displayed today in court by the US Government, who have apparently been bypassed by the change in attitudes of the last few decades.
I discuss this before coming to Tuesday’s evidence because for once my account will be less detailed than others, because I have decided to censor much of what was said. I do this on the grounds that, when it comes to his medical history, Julian’s right to privacy ought not to be abolished by these proceedings. I have discussed this in some detail with Stella Morris. I have of course weighed this against my duty as a journalist to you the reader, and have decided the right to medical privacy is greater, irrespective of what others are publishing. I have therefore given as full an account as I can while omitting all mention of behaviours, of symptoms, and of more personal detail.
I also believe I would take that view irrespective of the identity of the defendant. I am not just being partial to a friend. In all my reporting of these proceedings, of course my friendship with Julian has been something of which I am mindful. But I have invented nothing, nor have I omitted anything maliciously.
I will state firmly and resolutely that my account has been truthful. I do not claim it has been impartial. Because in a case of extreme injustice, truth is not impartial.
The following account tries to give you a fair impression of today’s courtroom events, while omitting the substance and detail of much of the discussion. The single witness all day was the eminent psychiatrist Prof Michael Kopelman, who will be familiar to readers of Murder in Samarkand. Emeritus Professor of Psychiatry at Kings College London and formerly head of psychiatry at Guy’s and St Thomas’s, Prof Kopelman was appointed by the defence (he is not one of the psychiatrists of whom Julian complains, who will give evidence later) and had visited Julian Assange 19 times in Belmarsh Prison. His detailed report concluded that
“I reiterate again that I am as certain as a psychiatrist ever can be that, in the event of imminent extradition, Mr. Assange would indeed find a way to commit suicide,”
Kopelman’s evidence was that his report was based not just on his many consultations with Assange, but on detailed research of his medical records back to childhood, including direct contact with other doctors who had treated Assange including in Australia, and multiple interviews with family and long-term friends. His diagnosis of severe depression was backed by a medical history of such episodes and a startling family history of suicide, possibly indicating genetic disposition.
Prof Kopelman was firm in stating that he did not find Assange to be delusional. Assange’s concerns with being spied upon and plotted against were perfectly rational in the circumstances.
Kopelman had no doubt that Julian was liable to commit suicide if extradited. “It is the disorder which brings the suicide risk. Extradition is the trigger.”
James Lewis QC cross-examined Professor Kopelman for four hours. As ever, he started by disparaging the witness’s qualifications; Prof Kopelman was a cognitive psychiatrist not a forensic psychiatrist and had not worked in prisons. Prof Kopelman pointed out that he had been practising forensic psychiatry and testifying in numerous courts for over thirty years. When Lewis persisted again and again in querying his credentials, Kopelman had enough and decided to burst out of the bubble of court etiquette:
“I have been doing this for over thirty years and on five or six occasions London solicitors have phoned me up and said that James Lewis QC is acting in an extradition case and is extremely keen to get your services for a report. So I think it is a bit rich for you to stand there now questioning my qualifications.” This caused really loud laughter in court, which remarkably the judge made no attempt to silence.
The other trick which the prosecution played yet again was to give Prof Kopelman two huge bundles which had, they said, been sent to him that morning and which he said he had never seen – unsurprisingly as he started testifying at 10am. These included substantial items which Prof Kopelman had never seen before but on which he was to be questioned. The first of these was an academic article on malingering which Kopelman was in effect scorned by Lewis for not having read. He said he had read a great many articles on the subject but not this particular one.
Lewis then read several sentences from the article and invited Kopelman to agree with them. These included “clinical skills alone are not sufficient to diagnose malingering” and one to the effect that the clinical team are best placed to detect malingering. Prof Kopelman refused to sign up to either of these propositions without qualification, and several times over the four hours was obliged to refute claims by Lewis that he had done so.
This is another technique continually deployed by the prosecution, seizing upon a single article and trying to give it the status of holy writ, when JStor would doubtless bring out hundreds of contending articles. On the basis of this one article, Lewis was continually to assert and/or insinuate that it was only the prison medical staff who were in a position to judge Assange’s condition. Edward Fitzgerald QC for the defence was later to assert that the article, when it referred to “the clinical team”, was talking of psychiatric hospitals and not prisons. Kopelman declined to comment on the grounds he had not read the article.
Lewis now did another of his standard tricks; attempting to impugn Kopelman’s expertise by insisting he state, without looking it up, what the eight possible diagnostic symptoms of a certain WHO classification of severe depression were. Kopelman simply refused to do this. He said he made a clinical diagnosis of the patient’s condition and only then did he calibrate it against the WHO guidelines for court purposes; and pointed out that he was on some of the WHO committees that wrote these definitions. They were, he said, very political and some of their decisions were strange.
We then entered a very lengthy and detailed process of Lewis going through hundreds of pages of Assange’s prison medical notes and pointing out phrases omitted from Kopelman’s sixteen page synopsis which tended to the view Assange’s mental health was good, while the Professor countered repeatedly that he had included that opinion in shortened form, or that he had also omitted other material that said the opposite. Lewis claimed the synopsis was partial and biased and Kopelman said it was not.
Lewis also pointed out that some of Assange’s medical history from Australia lacked the original medical notes. Kopelman said that this was from the destruction policy of the state of Victoria. Lewis was only prepared to accept history backed by the original medical notes; Kopelman explained these notes themselves referred to earlier episodes, he had consulted Professor Mullen who had treated Julian, and while Lewis may wish to discount accounts of family and friends, to a medical professional that was standard Maudsley method for approaching mental illness history; there was furthermore an account in a book published in 1997.
After lunch Lewis asked Prof Kopelman why his first report had quoted Stella Morris but not mentioned that she was Julian’s partner. Why was he concealing this knowledge from the court? Kopelman replied that Stella and Julian had been very anxious for privacy in the circumstances because of stress on her and the children. Lewis said that Kopelman’s first duty was to the court and this overrode their right to privacy. Kopelman said he had made his decision. His second report mentioned it once it had become public. Lewis asked why he had not explicitly stated they had two children. Kopelman said he thought it best to leave the children out of it.
Lewis asked whether he was hiding this information because having a partner was a safeguard against suicide. Kopelman said that some studies showed suicide was more common in married people. Besides, what we were considering here was stress of separation from partner and children.
Lewis then addressed the reference in Prof Kopelman’s report to the work of Prof Nils Melzer, the UN Special Rapporteur on Torture. Without specifying Professor Melzer’s background or position or even making any mention of the United Nations at all, Lewis read out seven paragraphs of Prof Melzer’s letter to Jeremy Hunt, then UK foreign secretary. These paragraphs addressed the circumstances of Assange’s incarceration in the Embassy and of his continual persecution, including the decision of the UN Working Group on Arbitrary Detention. Lewis even managed to leave the words “United Nations” out of the name of the working group.
As he read each paragraph, Lewis characterised it as “nonsense”, “rubbish” or “absurd”, and invited Prof Kopelman to comment. Each time Prof Kopelman gave the same reply, that he had only used the work of the psychologist who had accompanied Prof Melzer and had no comment to make on the political parts, which had not appeared in his report. Baraitser – who is always so keen to rule out defence evidence as irrelevant and to save time – allowed this reading of irrelevant paragraphs to go on and on and on. The only purpose was to enter Prof Melzer’s work into the record with an unchallenged dismissive characterisation, and it was simply irrelevant to the witness in the stand. This was Baraitser’s double standard at play yet again.
Lewis then put to Prof Kopelman brief extracts of court transcript showing Julian interacting with the court, as evidence that he had no severe cognitive difficulty. Kopelman replied that a few brief exchanges really told nothing of significance, while his calling out from the dock when not allowed to might be seen as symptomatic of Asperger’s, on which other psychiatrists would testify.
Lewis again berated Kopelman for not having paid sufficient attention to malingering. Kopelman replied that not only had he used his experience and clinical judgement, but two normative tests had been applied, one of them the TOMM test. Lewis suggested those tests were not for malingering and only the Minnesota test was the standard. At this point Kopelman appeared properly annoyed. He said the Minnesota test was very little used outside the USA. The TOMM test was indeed for malingering. That was why it was called the Test of Memory Malingering. Again there was some laughter in court.
Lewis then suggested that Assange may only get a light sentence in the USA of as little as six years, and might not be held in solitary confinement. Would that change Kopelman’s prognosis? Kopelman said it would if realistic, but he had done too many extradition cases, and seen too many undertakings broken, to put much store by this. Besides, he understood no undertakings had been given.
Lewis queried Kopelman’s expertise on prison conditions in the USA and said Kopelman was biased because he had not taken into account the evidence of Kromberg and of another US witness on the subject who is to come. Kopelman replied that he had not been sent their evidence until substantially after he completed his reports. But he had read it now, and he had seen a great deal of other evidence that contradicted it, both in this case and others. Lewis suggested it was not for him to usurp the judgement of the court on this issue, and he should amend his opinion to reflect the effect of the US prison system on Assange if it were as Kromberg described it. Kopelman declined to do so, saying he doubted Kromberg’s expertise and preferred to rely on among others the Department of Justice’s own report of 2017, the Centre for Constitutional Rights report of 2017 and the Marshall report of 2018.
Lewis pressed Kopelman again, and asked that if prison conditions and healthcare in the USA were good, and if the sentence were short, would that cause an alteration to his clinical opinion. Kopelman replied that if those factors were true, then his opinion would change, but he doubted they were true.
Suddenly, Baraitser repeated out loud the part quote that if prison conditions in the US were good and the sentence were short, then Kopelman’s clinical opinion would change, and ostentatiously typed it onto her laptop, as though it were very significant indeed.
This was very ominous. As she inhabits a peculiar world where it is not proven that anybody was ever tortured in Guantanamo Bay, I understand that in Baraitser’s internal universe prison conditions in the Colorado ADX are perfectly humane and medical care is jolly good. I could note Baraitser seeing her way suddenly clear to how to cope with Professor Kopelman in her judgement. I could not help but consider Julian was the last person in this court who needed a psychiatrist.
Lewis now asked, in his best rhetorical and sarcastic style, whether mental illness had prevented Julian Assange from obtaining and publishing hundreds of thousands of classified documents that were the property of the United States? He asked how, if he suffered from severe depression, Julian Assange had been able to lead Wikileaks, to write books, make speeches and host a TV programme?
I confess that at this stage I became very angry indeed. Lewis’s failure to acknowledge the episodic nature of severe depressive illness, even after the Professor had explained it numerous times, was intellectually pathetic. It is also crass, insensitive and an old-fashioned view to suggest that having a severe depressive illness could stop you from writing a book or leading an organisation. It was plain stigmatising of those with mental health conditions. I confess I took this personally. As long-term readers know, I have struggled with depressive illness my entire life and have never hidden the fact that I have in the past been hospitalised for it, and on suicide watch. Yet I topped the civil service exams, became Britain’s youngest Ambassador, chaired a number of companies, have been Rector of a university, have written several books, and give speeches at the drop of a hat. Lewis’s characterisation of depressives as permanently incapable is not just crassly insensitive, it is a form of hate speech and should not be acceptable in court.
(I am a supporter of free speech, and if Lewis wants to make a fool of himself by exhibiting ignorance of mental illness in public I have no problem. But in court, no.)
Furthermore, Lewis was not representing his own views but speaking on the direct instructions of the government of the United States of America. Throughout a full four hours, Lewis on behalf of the government of the USA not only evinced no understanding whatsoever of mental illness, he never once, not for one second, showed one single sign that mental illness is a subject taken seriously or for which there is the tiniest element of human sympathy and concern. Not just for Julian, but for any sufferer. Mental illness is malingering or if real disqualifies you from any role in society; no other view was expressed. He made plain on behalf of the US Government, for example, that Julian’s past history of mental illness in Australia will not be taken into account because the medical records have been destroyed.
The only possible conclusion from yesterday’s testimony is that the performance of the representative of the United States Government was, in and of itself, full and sufficient evidence that there is no possibility that Julian Assange will receive fair consideration and treatment of his mental health issues within the United States system. The US government has just demonstrated that to us, in open court, to perfection.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
Monday was a frustrating day as the Assange Hearing drifted deep into a fantasy land where nobody knows or is allowed to say that people were tortured in Guantanamo Bay and under extraordinary rendition. The willingness of Judge Baraitser to accept American red lines on what witnesses can and cannot say has combined with a joint and openly stated desire by both judge and prosecution to close this case down quickly by limiting the number of witnesses, the length of their evidence, and the time allowed for closing arguments. For the first time, I am openly critical of the defence legal team who seem to be missing the moment to stop being railroaded and say no, this is wrong, forcing Baraitser to make rulings against them. Instead most of the day was lost to negotiations between prosecution and defence as to what defence evidence could be edited out or omitted.
More of which later.
PROFESSOR CHRISTIAN GROTHOFF
The first witness was Professor Christian Grothoff, a computer scientist based at the University of Berne Institute of Applied Sciences. Prof Grothoff had prepared an analysis of how and when the unredacted cables first came to be released on the internet.
Prof Grothoff was taken through his evidence in chief by Marks Summers QC for the defence. Prof Grothoff testified that Wikileaks had shared the cable cache with David Leigh of the Guardian. This had been done in encrypted form. It had a very strong encryption key; without the long, strong password there would be no way to access it. It was useless without the key. In reply to questions from Summers, Prof Grothoff confirmed that it was standard practice for information to be shared by an online cache with strong encryption. It was standard practice, and not in any way irresponsible. Banking or medical records might be securely communicated in this way. Once the file is encrypted, it cannot be read without the key, and nor can the key be changed. New copies can of course be made from the unencrypted original with different keys.
Summers then led Prof Grothoff to November 2010 when cables started to be published, initially by partners from the media consortium after redaction. Grothoff said that the next event was a DDOS attack on the Wikileaks site. He explained how a distributed denial of service attack works, hijacking multiple computers to overload the target website with demand. Wikileaks reaction was to encourage people to put up mirrors to maintain the availability of content. He explained this was quite a normal response to a DDOS attack.
Prof Grothoff produced a large list of mirrors created all over the world as a result. Wikileaks had posted instructions on how to set up a mirror. Mirrors set up using these instructions did not contain a copy of the cache of unredacted cables. But at some point, some mirrors started to contain the file with the unredacted cables. These appeared to be few and special sites with mirrors created in other ways than by the Wikileaks instructions. There was some discussion between Grothoff and Summers as to how the cached file may have been hidden in an archive on the Wikileaks site, for example not listed in the directory, and how a created mirror could sweep it up.
Summers then asked Professor Grothoff whether David Leigh released the password. Grothoff replied that yes, Luke Harding and David Leigh had revealed the encryption key in their book on Wikileaks published February 2011. They had used it as a chapter heading, and the text explicitly set out what it was. The copies of the encrypted file on some mirrors were useless until David Leigh posted that key. Summers So once David Leigh released the encryption key, was it in Wikileaks’ power to take down the mirrors? Grothoff No. Summers Could they change the encryption key on those copies? Grothoff No. Summers Was there anything they could do? Grothoff Nothing but distract and delay.
Grothoff continued to explain that on 25 August 2011 the magazine Der Freitag had published the story explaining what had happened. It did not itself give out the password or location of the cache, but it made plain to people that it could be done, particularly to those who had already identified either the key or a copy of the file. The next link in the chain of events was that nigelparry.com published a blog article which identified the location of a copy of the encrypted file. With the key being in David Leigh’s book, the material was now effectively out. This resulted within hours in the creation of torrents and then publication of the full archive, unencrypted and unredacted, on Cryptome.org.
Summers asked whether Cryptome was a minor website. Grothoff replied not at all, it was a long established platform for leaked or confidential material and was especially used by journalists.
At this stage Judge Baraitser gave Mark Summers a five minute warning on Prof Grothoff’s evidence. He therefore started to speed through events. The next thing that happened, still on 31 August 2011, is that a website MRKVA had made a searchable copy. Torrents also started appearing including on Pirate Bay, a very popular service. On 1 September, according to classified material from the prosecution supplied to Prof Grothoff, the US Government had first accessed the unredacted cache. The document showed this had been via a torrent from Pirate Bay. Wikileaks had made the unredacted cables available on 2 September, after they were already widely available. They had already passed the point where “they could not be stopped”.
Neither Pirate Bay nor Cryptome had been prosecuted for the publication. Cryptome is US based.
Joel Smith then rose to cross-examine for the prosecution. He started by addressing the Professor’s credentials. He suggested that the Professor was expert in computer analysis, but in putting together a chronology of events he was not expert. Prof Grothoff replied that it had required specialist forensic skills to track the precise chain of events.
Joel Smith then suggested that his chronology of events was dependent on material provided by the defence. Prof Grothoff said that indeed the defence had supplied key evidence, but he had searched extensively for other material and evidence online of the course of events and tested the defence evidence.
Smith then asked Grothoff whether he had withheld any information he should have given as a declaration of interest. Grothoff said he had not, and could not think what Smith was talking about. He had conducted his research fairly and taken great care to test the assertions of the defence against the evidence. Smith then read out an open letter from 2017 to President Trump calling for the prosecution of Assange to be dropped. Grothoff said it was possible, but he had no recollection of having signed it or seeing it. The defence had told him about it on Saturday, but he still did not remember it. The content of the letter seemed reasonable to him, and had a friend asked him to sign then he would probably have done so. But he had no memory of it.
Smith noted that Grothoff was listed as an initial signatory not an online added signatory. Grothoff replied that nevertheless he had no recollection of it. Smith then asked him incredulously “and you cannot remember signing a letter to the President of the United States?” Grothoff again confirmed he could not remember.
Quoting the letter, Smith then asked him “Do you think the prosecution is “a step into the darkness”?”. Grothoff replied that he thought it had strong negative ramifications for press freedom worldwide. Lewis then put to Grothoff that he had strong views, and thus was evidently “biased, partial”. Grothoff said he was a computer scientist and had been asked to research and give testimony on matters of fact as to what had occurred. He had tested the facts properly and his personal opinions were irrelevant. Smith continued to ask several more questions about the letter and Grothoff’s partiality. Altogether Smith asked 14 different questions related to the open letter Grothoff had allegedly signed. He then moved on:
Smith Did you download the cables file yourself during your research? Grothoff Yes, I did. Smith Did you download it from the Wikileaks site? Grothoff No, I believe from Cryptome. Smith So in summer 2010 David Leigh was given a password and the cache was put up on a public website? Grothoff No, it was put on a website but not public. It was in a hidden directory. Smith So how did it end up on mirror sites if not public? Grothoff It depends how the specific mirror is created. On the Wikileaks site the encrypted cache was not an available field. Different mirroring techniques might sweep up archive files. Smith Wikileaks had asked for the creation of mirrors? Grothoff Yes. Smith The strength of a password is irrelevant if you cannot control the people who have it. Grothoff That is true. The human is always the weakest link in the system. It is difficult to guard against a bad faith actor, like David Leigh. Smith How many people did Wikileaks give the key in the summer of 2010? Grothoff It appears from his book only to David Leigh. He then gave it to the hundreds of thousands who had access to his book. Smith Is it true that 50 media organisations and NGOs were eventually involved in the process of redaction? Grothoff Yes, but they were not each given access to the entire cache. Smith How do you know that? Grothoff It is in David Leigh’s book. Smith How many people in total had access to the cache from those 50 organisations? Grothoff Only Mr Leigh was given access to the full set. Only Mr Leigh had the encryption key. Julian Assange had been very reluctant to give him that access. Smith What is your evidence for that statement? Grothoff It is in David Leigh’s book. Smith That is not what it says.
Smith then read out two long separate passages from Luke Harding and David Leigh’s book, both of which indeed made very plain that Assange had given Leigh access to the full cache only with extreme reluctance, and had been cajoled into it, including by David Leigh asking Assange what would happen if he were bundled off to Guantanamo Bay and nobody else but Assange held the password.
Grothoff That is what I said. Harding and Leigh write that it had been a hard struggle to prise the password out of Assange’s hand. Lewis How do you know that the 250,000 cables were not all available to others? Grothoff In February 2011 David Leigh published his book. Before that I do not have proof Wikileaks gave the password to nobody else. But if so, they have kept entirely quiet about it. Smith You say that after the DDOS attack Wikileaks requested people to mirror the site globally. They published instructions on how to do it. Grothoff Yes, but mirrors created using the Wikileaks instructions did not include the encrypted file. In fact this was helpful. They were trying to build a haystack. The existence of so many mirrors without the unencrypted file made it harder to find. Smith But in 2010 the password had not been released. Why would Wikileaks want to build a haystack then? Grothoff The effect was to build a haystack. I agree that was probably not the initial motive. It may have been when this mirror creation continued later. Smith As of December 2010 what Wikileaks are saying is they wish to proliferate the site as they are under attack? Grothoff Yes Joel Smith On 23 August 2011 Wikileaks start a mass release of cables? Grothoff Yes. This is a release of unclassified cables and also ongoing release of redacted classified cables by media partners. Smith They were releasing cables by country, and putting out tweets saying which countries they were releasing cables for both then and next? (Smith reads from tweets.) Grothoff Yes. I have verified that these were unclassified cables by searching through these cables on the classification field. Smith Were some classified secret? Grothoff No, they were unclassified. I checked this. Smith Were some marked “strictly protect”? Grothoff That is not a classification in the classification field. I did not check for that. Smith Wikileaks boast that they make the files available in a searchable form. Grothoff Yes, but their search facility was not very good. Much easier to search them in other ways. Smith You said Der Freitag stated that the encrypted file was available on mirrors. The article does not say that. Grothoff No, but it says that it was widely circulating on the internet. That is done by mirroring. They did not use that word, I agree. Smith The 29 August Der Spiegel article does not publish the password. Then Wikileaks publishes an article claiming these stories are “substantially incorrect”. Grothoff It points to the password. Smith Some cables were published classified “Secret”. Grothoff These were cables that had been redacted fully by the consortium of media experts. Smith Why do you call them “experts”? Grothoff They knew the subject matter and the localities. Smith Why do you call them “experts”? Grothoff They were experienced journalists who knew what was and was not safe and right to publish. So experts in journalism. You need to distinguish between three types of cable published at this time: 1) classified and redacted; 2) unclassified; 3) the classified and unredacted cache. Smith Are you aware that some cables were marked “strictly protect”? Grothoff That is not a designation of a cable. It is applied to individuals. But it does not indicate that they are in danger, merely that for political reasons they do not want to be known as giving evidence to the US government? Smith How do you know that? Grothoff It is in the bundle I was sent, and the evidence of other defence witnesses. Smith You don’t know. Grothoff I do know the “strictly protect” names you are referring to were in safe countries. Smith Before 31 August you find no evidence of full publication of the entire cache? Grothoff Yes.
We then went through an excruciatingly long process of Smith querying the evidence for the timing of every publication prior to Wikileaks own publication, and trying to shift back the latest possible time of publication online of various copies, including Cryptome, MRKVA, Pirate Bay and various other torrents. He managed to establish that, depending which time zone you were in, some of this could be attributed to possibly very early on 1 September rather than 31 August, and that it was not possible to put an exact time within a window of a few hours on Cryptome’s unredacted publication early in the morning on 1 September.
[This exercise could cut both ways. The timing of a tweet saying a copy or torrent is up and giving a link, must be sent out after the material is put up, which could be some time before sending the tweet.]
Grothoff concluded that at the end of the day we do not know to the minute timings for every publication, but what we can say for certain is that all of the publications discussed, including Cryptome, were before Wikileaks.
Smith then noted that Parry wrote in his blog “This is a bad day for David Leigh and the Guardian. I ran the password from David Leigh’s book in an old W/L file…” but did not give the location of the file. This was at 10pm on 31 August. Within 20 minutes Wikileaks was issuing a press release “statement of the betrayal of Wikileaks passwords by the Guardian” and 80 minutes later an editorial. [I think that Smith here was trying to say Wikileaks had published Parry’s breakthrough.] Smith then invited Grothoff to agree that when Wikileaks themselves published the full documents later on 2 September, it was more comprehensible and visible than earlier publications. Grothoff replied it was not more comprehensive, it was the same. It was more visible but by that time the cat was well out of the bag and the unredacted cables were spreading rapidly all over the internet. There was no way to stop them.
Mark Summers then re-examined Grothoff and established that the evidence was that the encryption key for the full cache was given to David Leigh and to nobody else. The storage method was secure – Grothoff pointed out that precisely the same method was used to send around the court bundles in this case. Only David Leigh had revealed the password.
On mirror sites, Grothoff confirmed that the Wikileaks instructions created mirrors without the encrypted cache. All the copies of the encrypted cache he could find on other mirrors, were on sites which plainly were created using other methods, for example other software systems. Summers then got Professor Grothoff to explain the methodology he had used to verify the cables published by Wikileaks before the Leigh crash were all unclassified. Apart from dip sampling, this included a correlation of the number published for each country with the number listed as unclassified for each country in the US government directory. These matched in every case.
Summers then attempted to take Grothoff back over the timeline evidence which Joel Smith had put so much effort into muddying, but was prevented from doing so by Baraitser. She had interrupted Summers four times during his re-examination, on the extraordinary basis that this ground was gone over before; extraordinary because that is the point of a re-examination. Baraitser had permitted Smith to ask fourteen successive questions of Grothoff on the subject of why he had signed an open letter. The double standard was very obvious.
Which brings us to a very crucial point. The next witness, Andy Worthington, was at court and ready to give evidence, but was prevented from doing so. The United States government objected to his evidence, about his work on the Guantanamo Detainee files, being heard because it contained allegations of inmates being tortured at Guantanamo.
Baraitser said her ruling was not going to consider whether torture took place at Guantanamo, or if extraordinary rendition had happened. She did not need to hear evidence on these points. Mark Summers replied that the ECHR had ruled on these as facts, but that it was necessary they be stated by witnesses as appropriate as it went to the Article 10 ECHR defence. Lewis maintained the objection from the US government.
Baraitser said she wanted the prosecution and defence to produce a witness schedule that would get the case finished by the end of next week, including closing statements. She wanted them to agree what evidence could and could not be heard. Where possible she wanted evidence in uncontested statements with the defence just reading out the gist.
She also said that she did not want to hear closing arguments in court, but she would have them in writing and the defence and prosecution could just summarise them briefly orally.
What the defence should have said at this moment is “Madam, the dogs in the street know that people were tortured in Guantanamo Bay. In the real world, it is not a disputed fact. If Mr Lewis’s instructions were to deny that the earth is round, would our witnesses have to accommodate that? The truth of these matters plainly goes to the Article 10 Defence, and by pandering to the denial of a notorious and plain fact, this court will be held up to mockery. We will not discuss such ludicrous censorship with Mr Lewis. If you wish to rule that there must be no mention of torture in evidence, then so be it.”
The defence did not say any of that, but as instructed entered a process with the prosecution lawyers of agreeing the shortening and editing of evidence, a process which took all day and with which Julian showed plain signs of being uncomfortable. Andy Worthington did not get to give his evidence. The only further evidence heard was the reading of the gist of a statement from Cassandra Fairbanks. I did not hear most of this because, having adjourned to 4.30pm, the court re-adjourned earlier than advertised, while Julian’s dad John Shipton, the musician MIA and I were away having a coffee. I commend this account by Kevin Gosztola of Fairbanks’ startling evidence. It was read quickly by Edward Fitzgerald in “gist”, agreed as an uncontested account, and speaks strongly of the political motivation apparent in this prosecution.
I am very concerned about the obvious collusion of the prosecution and the judge to close this case down. The extraordinary conflation of “time management” and excluding evidence which the US Government does not want heard in public is plainly illegitimate. The continual chivvying and interruption of defence counsel in examination when prosecution counsel are allowed endless repetition amounting to harassment and bullying is illegitimate. Some extraordinarily long prosecution cross-examinations, such as that of Carey Shenkman the lawyer, have every appearance of deliberate time wasting and distraction.
Tuesday’s witness is Professor Michael Kopelman, the eminent psychiatrist, and the prosecution have indicated they wish to cross-examine him for an extraordinary four hours, which Baraitser agreed against defence objections. Her obsession with time management is distinctly subjective.
Obviously there is a moral question for me in how much of this medical evidence I publish. The decision will be taken in strict accordance with the views of Julian or, if we cannot ascertain that, his family.
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Friday gave us the most emotionally charged moments yet at the Assange hearing, showed that strange and sharp twists in the story are still arriving at the Old Bailey, and brought into sharp focus some questions about the handling and validity of evidence, which I will address in comment.
NICKY HAGER
The first witness of the day was Nicky Hager, the veteran New Zealand investigative journalist. Hager’s co-authored book “Hit and Run” detailed a disastrous New Zealand SAS raid in Afghanistan, “Operation Burnham”, that achieved nothing but the deaths of civilians, including a child. Hager was the object of much calumny and insult, and even of police raids on his home, but in July an official government report found that all the major facts of his book were correct, and the New Zealand military had run dangerously out of control:
“Ministers were not able to exercise the democratic control of the military. The military do not exist for their own purpose, they are meant to be controlled by their minister who is accountable to Parliament.”
Edward Fitzgerald took Hager through his evidence. Hager stated that journalists had a duty to serve the public, and that they could not do this without access to secret sources of classified information. This was even more necessary for the public good in time of war. Claims of harm are always made by governments against any such disclosures. It is always stated. Such claims had been frequently made against him throughout his career. No evidence had ever emerged to back up any of these claims that anybody had been harmed as a result of his journalism.
When Wikileaks had released the Afghan War Logs, they had been an invaluable source to journalists. They showed details of regular patrols, CIA financed local forces, aid and reconstruction ops, technical intelligence ops, special ops and psychological ops, among others. They had contributed much to his books on Afghanistan. Information marked as confidential is essential to public understanding of the war. He freqently used leaked material. You had to judge whether it was in the higher public interest to inform the public. Decisions of war and peace were of the very highest public interest. If the public were being misled about the conduct and course of the war, how could democratic choices be made?
Edward Fitzgerald then asked about the collateral murder video and what they revealed about the rules of engagement. Hager said that the Collateral Murder video had “the most profound effect throughout the world”. The publication of that video and the words “”Look at those dead bastards” had changed world opinion on the subject of civilian casualties. In fact the Rules of Engagement had been changed to put more emphasis on avoiding civilian casualties, as a direct result.
In November 2010 Hager had travelled to the UK to join the Wikileaks team and had become involved in redacting and printing stories from the cables relating to Australasia. He was one of the local partners Wikileaks had brought in for the cables, expanding from the original media consortium that handled the Afghan and Iraqi war logs.
Wikileaks’ idea was a rigorous process of redaction and publication. They were going through the cables country by country. It was a careful and diligent process. Wikileaks were very serious and responsible about what they were doing. His abiding memory was sitting in a room with Wikileaks staff and other journalists, with everyone working for hours and hours in total silence, concentrated on going through the cables. Hager had been very pleased to see the level of care that was taken.
Edward Fitzgerald asked him about Julian Assange. Hager said he found him completely different to the media presentation of him. He was thoughtful, humorous and energetic. He dedicated himself to trying to make the world a better place, particularly in the post 9/11 climate of a reduction of citizen freedoms in the world. Assange had a vision that the digital age would enable a new kind of whistleblower which could correct the information imbalance between government and citizen. This was against a background of torture, rendition and war crimes being widely committed by western governments.
James Lewis QC then rose to cross-examine on behalf of the US government
Lewis Have you read the indictment and the extradition request? Hager Yes. Lewis What charges do you see there? Hager I see a mish-mash. Some charges of publication, some of possession then other stuff added. Lewis Assange is not charged with publishing the collateral murder video your evidence says so much about Hager You can’t look at the effect the Wikileaks revelations had on the world in that kind of neat and compartmentalised way. The cables, logs and all the rest affected the world as a whole. Lewis Is Assange charged with publication of any of the documents you have relied on in your works? Hager That would take me some research to find out, which he is charged with publishing and which with possession. Lewis Have you ever paid a government official to give you secret information? Hager No. Lewis Have you ever hacked? Hager No, probably. That depends how you define “hack”. Lewis You have as a journalist merely been the passive recipient of official information. Presumably you have never done anything criminal to obtain government information? Hager You said “passive”. That is not the way we work. Journalists not only actively work our sources. We go out and find our sources. The information might come in documents. It might come on a memory stick. In most cases our sources are breaking the law. Our duty is to help protect them from being caught. We actively help them cover their backs sometimes. Lewis In your report on Operation Burnham you protected your sources. Would you knowingly put a source in danger? Hager No, of course not. However… Lewis No. Stop. You answered.
Edward Fitzgerald QC rose to object but found no support from the judge.
Lewis On 2 September 2011 the Guardian published an editorial article abhorring Wikileaks’ publishing of unredacted cables and stating that hundreds of lives had been put in danger. Do you agree with those statements? Hager My information is that Wikileaks did not release the cables until others had published. Lewis We say your understanding is wrong. On 25 August Wikileaks published 134,000 cables including some marked “strictly protect”. What is your opinion on that? Hager I am not going to comment on a disputed fact. I do not personally know. Lewis The book “Wikileaks: the Inside Story” by David Leigh and Luke Harding of the Guardian newspaper states that Assange “wished to release the whole lot sooner”. It also states that at a dinner at El Moro restaurant, Assange stated that if informants were killed, they had it coming to them. Would you care to comment? Hager I know that there was great animosity between David Leigh and Julian Assange by the point that book was written. I would not regard that as a reliable source. I do not want to dignify that book by answering it. Lewis Are you trying to assist the court or assist Assange? In a talk recorded at the Frontline Club, Assange stated that Wikileaks only had a duty to protect informants from “unjust” retribution, and that those who gave information to US forces for money or engaged in “truly traitorous” behaviour deserved their fate. Do you support that statement? Hager No. Lewis You say it would have been impossible to write your book without confidential material from Wikileaks. Did you need the names of informants? Hager No. Lewis The Operation Burnham report found at p.8 that, contrary to your assertions “New Zealand Defence Forces were not involved in planning preparation and execution”. Hager What you have quoted does not relate to the main operations covered in the book. It only refers to something covered as a “minor footnote” in the book. Most of the findings of the book were confirmed. Lewis The Official Report states of your book “Hit and Run was inaccurate in some respects”. Hager We did not get everything right. But the major points were all true. “Civilian casualties confirmed. Death of child confirmed. Prisoner beaten up confirmed. Falsified reports confirmed.” Lewis How many cables did you personally review? Hager A few hundred. They were specifically cables relating to Australasia. Lewis And what criteria did you use to make redactions? Hager There were quite a few names marked “strictly protect”. This was not, in the context, for reasons of safety in the countries which I was working on. It was purely to avoid political embarrassment. Lewis But how long did you work in London on the cables? Hager It was several days, to do several hundred cables. Lewis Did you show your statement to the defence in draft? Hager Yes, I have always done this when I have submitted an affidavit.
[This is normal. Affidavits or statements from defence witnesses are normally drawn up and, if affidavits, taken under oath by the defence solicitors.]
Lewis Did the defence suggest to you that you should place the section on Rules of Engagement next to the Collateral Damage video? Hager Yes. But I was very happy to do it, it made perfect sense to me.
Edward Fitzgerald QC then rose again for the re-examination.
Fitzgerald You were asked if you know what Assange is charged with. Do you know he is charged with obtaining and receiving all of the diplomatic cables, the Iraq war logs, the Afghan war logs, the rules of engagement, and the Guantanamo detainee assessments? Hager Yes. Fitzgerald And he could not have published any of them without first obtaining and receiving them? So the distinction as to which he is charged for publishing makes no difference to the liability of journalists like yourself to the Espionage Act for obtaining and receiving US classified information? Hager Yes. Fitzgerald You work with sources. That means the person who provides you with the information or material. And do you have a duty to protect that source? Hager Yes. Fitzgerald You were asked about the September 2011 publication of cables. What do you know about how that came about? Hager I believed the Wikileaks people and witnessed their extreme seriousness in the redaction process to which they invited me in. I do not believe they suddenly changed their mind about it. This publication came about through a series of bad luck and unfortunate events, not by Wikileaks. But that nine month redaction process was not wasted. Wikileaks had at an early stage warned the US authorities and invited them to be part of the redaction process. Assange had stressed to US authorities the danger to those named in the report. While the US authorities had not got involved in redaction, they had started a massive exercise in warning those named in the reports that they might have been in danger, and helping those the most at risk to take measures to relocate. I think this is overlooked. Julian Assange bought those people nine months. I also believe that is the major part of the explanation why in the end there were no identifiable deaths and was no wholesale damage. Fitzgerald What do you believe the bad luck to have been? Hager I understand it was the publication of a password in the Leigh/Harding book, but I have no direct knowledge. Fitzgerald On this book, you have said there was bad blood between Luke Harding, David Leigh and Julian Assange. Hager Yes, I would not put much weight on that book as a source myself.
[I hope you will forgive me for adding personal knowledge here, but the bad blood was nothing to do with redaction and everything to do with money. Julian Assange was briefly the most famous man in the world for a while and had not yet been tarnished with the allegations arranged in Sweden. Rights to an Assange book on Wikileaks and a biography were potentially worth millions to the authors. Collaboration had been discussed with Leigh but Julian had decided against. The Guardian were furious. That is what really happened. It seems a good explanation of why they instead published a money-spinning book attacking Assange. It does not really explain why they published the password to the unredacted cable cache in that book.]
Fitzgerald Julian Assange stated at the Frontline Club that sources had to be protected from “unjust retribution”. Do you agree with that? Hager Yes. Fitzgerald He was trying to draw a distinction with categories who do not deserve protection. Informants who give false information for money, agents provocateurs, those who turn in innocents for personal motives. We have seen the press in the UK, for example, name certain informants in Northern Ireland who had played a bad part. What do you think of naming informants in those kind of circumstances? Hager I don’t want to comment on Northern Ireland. It is all a very difficult topic. Fitzgerald Could you comment further on the collateral murder video and the rules of engagement? Hager The RoEs simply govern when soldiers can and cannot use force. They raise important questions. Are they correct? Do they minimise civilian casualties? Are they consistent with the laws of armed conflict? Fitzgerald One charge related to receiving and obtaining the RoEs. Is that why you mentioned them? Hager Yes. The soldiers always retain the base right of self-defence. There is no basis for claiming their publication poses a dire risk for the troops. It arguably leads to less conflict if people know when force will and will not be used. Fitzgerald You affirm that when the defence asked you to put together the collateral murder video with the rules of engagement, you agreed purely on the basis that was correct and right in your own opinion? Hager Yes.
JENNIFER ROBINSON
The court then moved to its first witness with “read evidence”. It has been agreed that some witnesses whom the prosecution does not wish to cross examine will have their evidence “read” into the record without having to appear. After substantial discussions and disagreements between the lawyers this has been resolved to be a short summary or “gist” of their evidence. My reports then for this group of witnesses are the gist of a gist; in this case of the evidence of Jennifer Robinson.
Jennifer Robinson is a lawyer who has advised Julian Assange since 2010. She represented him in his Swedish legal issues. On 15 August 2017 he asked her to join him for a meeting in the Ecuadorean Embassy in London with US Congressman Dana Rohrabacher and an aide Charles Johnson. Rohrabacher had stated he was acting on behalf of President Donald Trump and would report back to Trump on his return to Washington.
Rohrabacher said that the “Russiagate” story was politically damaging to President Trump, was damaging to US interests and to US/Russian relations. It would therefore be very helpful if Julian would reveal the real source of the DNC leaks. This would be in the public interest.
Julian Assange had put the case for a full pardon for Chelsea Manning and for any indictment against himself as a publisher to be dropped on First Amendment grounds. Rohrabacher had said there was an obvious “win win solution” here and he would investigate “what might be possible to get him out.” Assange could reveal the DNC source in return for a “pardon, deal or arrangement”. Assange had however not named any source to him.
KHALED EL-MASRI
There had been three days of intense discussion between the counsel and the judge, with the United States government objecting bitterly to Mr El-Masri being heard. A compromise had been reached that he could give evidence provided he did not allege he was tortured by the US Government. However, when he came to give evidence, Mr El-Masri was strangely unable to connect by videolink, even though the defence team had been able to speak to him by video a few hours earlier. Technical staff in the court having been unable to resolve the (ahem) technical issue, rather than simply postpone his evidence until a videolink had been established – as had happened already with two other witnesses when quality issues arose – Judge Baraitser suddenly decided to raise again the issue of whether el-Masri’s evidence should be heard at all.
James Lewis QC for the US Government stated that they did not merely oppose his evidence of being tortured. They opposed the making of any claim that a Wikileaks-released cable showed that they had put pressure on the government of Germany not to arrest those allegedly concerned in his alleged extradition. The US Government had not pressurised the Government of Germany, Lewis said. Mark Summers QC for the defence said that the Supreme Chamber of the European Court in Strasbourg had already judged his claims to be true, and that the Wikileaks cable plainly and inarguably showed the US Government exerting pressure on Germany.
Judge Baraitser said she was not going to determine if the US had pressurised Germany or if el-Masri had been tortured. Those were not the questions before her. Mark Summers QC said that it went to the question of whether Wikileaks had performed a necessary act to prevent criminality by the US Government and enable justice. Lewis responded that it was unacceptable to the US government that allegations of torture should be made.
At this point, Julian Assange became very agitated. He stood up and declared very loudly:
“I will not permit the testimony of a torture victim to be censored by this court”
A great commotion broke out. Baraitser threatened to have Julian removed and have the hearing held in his absence. There was a break following which it was announced that el-Masri would not appear, but that the gist of his evidence would be read out, excluding detail of US torture or of US pressure on the government of Germany. Mark Summers QC started to read the evidence.
Khaled el-Masri, of Lebanese origin, had come to Germany in 1989 and was a German citizen. On 1 January 2004 after a holiday in Skopje he had been removed from a coach on the Macedonian border. He had been held incommunicado by Macedonian officials, ill-treated and beaten. On 23 July he had been taken to Skopje airport and handed over to CIA operatives. They had beaten, shackled, hooded and sodomised him. His clothes had been ripped off, he had been dressed in a diaper, shackled to the floor of an aircraft in a cruciform position, and rendered unconscious by an anaesthetic injection.
He awoke in what he eventually learned was Afghanistan. He was held incommunicado in a bare concrete cell with a bucket for a toilet. He was held for six months and interrogated throughout this period [details of torture excluded by the judge]. Eventually in June he was flown to Albania, driven blindfold up a remote mountain road and dumped. When he eventually got back to Germany, his home was deserted and his wife and children had left.
When he made his story public he was subject to vicious attacks on his character and his credibility and it was claimed he was inventing it. He believes the government sought to silence him. He sought a local lawyer and persisted, eventually getting in touch with Mr Goetz of public TV, who had proven his story to be true, traced the CIA agents involved to North Carolina and even interviewed some of them. As a result, Munich state prosecutors released arrest warrants for his CIA kidnappers, but these were never executed. When Wikileaks issued the cables the pressure that had been brought on the German government not to prosecute became plain. [The judge did not prevent Summers from saying this.] We therefore know the US blocked judicial investigation of a crime. The European Court of Human Rights had explicitly relied on the Wikileaks cables for part of its judgement in the case. The Grand Chamber confirmed that he had been beaten, hooded, shackled and sodomised.
There had been no accountability in the USA. The CIA Inspector-General had declined to take action over the case. The ECHR judgement and supporting documentation had been sent to the office of the US Attorney in the Eastern District of Virginia – precisely the same office that was now attempting to extradite Assange – and that office had declined to prosecute the CIA officers concerned.
A complaint had been made to the International Criminal Court including the ECHR judgement and the Wikileaks material. In March 2020 the ICC had announced it was opening an investigation. In response US Secretary of State Mike Pompeo had declared any non-US citizen who cooperated with that ICC investigation, including officers of the ICC, would be subject to financial and other sanctions.
Finally, el-Masri testified that Wikileaks’ publication had been essential to him in gaining acceptance of the truth of the crime and of the cover-up.
In fact, the impact of Mark Summers’ reading of el-Masri’s statement on the court was enormous. Summers has a real gift for conveying moral force and constrained righteous anger in his tone. I thought the testimony had a definite impression on Judge Baraitser; she showed signs not of discomfort or embarrassment, but of real emotional distress while she was listening intently. Subsequently, two different witnesses, each situated in separate sections of the court from me, both in separate and unprompted conversations with me, told me that they thought that el-Masri’s testimony had really gotten through to the judge. Vanessa Baraitser is after all only human, and this is the first time she has been forced to deal with what this case is actually about.
DEAN YATES
The United States had objected that Mr Yates’ evidence should not include description of the actual content of the Collateral Murder video. I could not hear or understand any rationale why Baraitser agreed to this, but she did so rule, and four times she interrupted Edward Fitzgerald QC while he was reading the “gist” of Yates’ statement, to tell him he must not mention the content of the video.
Edward Fitzgerald read out that Mr Yates was a highly experienced journalist who had been Bureau Chief for Reuters in Baghdad. Early on 12 July 2007 “loud wailing” broke out in their office and he learnt that Namir, a photographer, and Saeed, a driver, had been killed. Namir had left early to cover a reported conflict with militants. Yates could not work out what had happened. A minivan nearby had its front shattered; the US military had taken Namir’s two cameras and refused to release them. The report was thirteen killed and nine injured. There did not appear to be any evidence of a firefight at the scene.
Yates had attended a US military HQ briefing where he was told that a hostile group had been deploying Improvised Explosive Devices in the road. He was shown photographs of machine guns and RPGs allegedly collected from the scene. He was shown three minutes of the video. It showed [Here Baraitser cut Fitzgerald off].
Yates had subsequently submitted a request to the US military to view the whole video, which had been denied. So had requests for the rules of engagement.
When Wikileaks released the Collateral Murder video, in the video Saeed was shown for three minutes crawling and trying to get up, while the Americans watching him remotely were saying “come on buddy, all you’ve got to do is pick up a weapon” so they could shoot him again. The Good Samaritan pulled up to help and the shots were seen destroying his windscreen and car. Edward Fitzgerald kept doggedly reading out bits of Yates’ testimony as Baraitser continually asked him to stop in a manner that was almost pleading.
Yates said that when he saw the video he immediately realised the US had lied to them about what happened. He also immediately wondered how much of that meeting at USHQ had been choreographed.
Something struck Yates very hard later. He had always blamed Namir for peering round the corner with his camera, which had been mistaken for a weapon and therefore caused him to be shot. It was Julian Assange who subsequently made the point that the order to kill Namir had been given before he had peered round the corner. He vividly recalled Assange saying “and if that’s within the RoEs, then the RoEs are wrong.” Yates was glad to absolve Namir but felt a terrible burden of guilt for having blamed him all the while for his own death.
Yates concluded that had it not been for Chelsea Manning and Julian Assange, the truth of what had happened to Namir and Saeed would never have been known. Thanks to Wikileaks, their deaths had a profound effect on public opinion.
James Lewis QC stated the American government had no questions but this did not imply the evidence was accepted.
CAREY SHENKMAN
Finally, we turned to the second half of Clair Dobbin’s cross-examination of Carey Shenkman on his testimony on the history of the Espionage Act. This may seem dull, but it has actually been extremely revealing in terms of revealing US government claims of the right to use the Espionage Act (1917) against any journalist, anywhere in the world, who obtains US classified information.
Dobbin opened part 2 by asking Shenkman whether he was seriously arguing that there existed any law that precluded the prosecution of a journalist under the Espionage Act for revealing national security information. Shenkman replied that the law had components; legislation, common law and the constitution, and that these interact. There is a very strong argument that the First Amendment does preclude such prosecution.
Dobbin asked whether any case established this beyond doubt. Shenkman replied that there had never been such a prosecution, so it had never come before the Supreme Court. Dobbin asked whether he accepted that in the New York Times case, the Supreme Court had said such an Espionage Act case could be brought. Shenkman replied that some of the judges had mentioned the possibility in their dicta, but that is not what they were ruling on and they had not heard any arguments before them on the issue.
Dobbin said that the judge in the Rosen case had stated that the New York Times case might have had a different outcome if pursued under the espionage act 79/3/e and such future prosecution was not precluded. Shenkman said the Rosen judgement was an outlier and did not refer to media publication. The Justice Department had decided no further action on Rosen. Shenkman referred her to a 2007 Harvard Law Review article on Rosen. It had been dropped because of First Amendment concerns.
Dobbin tried again and asked Shenkman whether he accepted that the judgement in Rosen found the interpretation of dicta in the New York Post case did not preclude prosecution. Shenkman, who seemed to be enjoying this, said the issue had not been briefed before the Supreme Court. And the Rosen judgement had not been carried through. Dobbin suggested this meant it was arguable both ways. Shenkman replied the Supreme Court judgement in NYT was about prior restraint.
Dobbin then asked Shenkman whether he accepted the fact that the vagueness objection to the Espionage Act had been rejected by the courts in whistleblower cases. Shenkman said there were many and sometimes contradictory cases in different appellate jurisdictions. But these were all cases involving government insiders not journalists.
Dobbin then asked why Shenkman’s witness statement did not make clear that the Espionage Act had been subject to judicial refinement. Shenkman replied that was because he did not think most academics would agree with that. It had been interpreted but not refined. Dobbin said that the effect of the interpretation had been to narrow its scope. She quoted the Rosen judgement again and the Morison judgement. They narrowed the scope to leak of official information that was damaging to the interests of the United States. This was an important new test. The Rosen judgement said this was “a clear safeguard against arbitrary enforcement.”
Shenkman replied that addresses only one particular aspect of the Espionage Act, the definition of national security information, and there had been whole books written on that. Quoting one line of one judgement really did not help. Other aspects were extremely broad. The main problem with the Act was the same legal standard is applied to all categories of recipient – the whistleblower, the publisher, the journalist, the newspaper seller and the reader could all be equally liable.
Dobbin then suggested the prosecution could not be political because it was the court that decides the definition of national security information. Shenkman replied that on the other hand it is the executive that decides what material is classified, who is prosecuted and on what charges. It was not just a matter of prosecution. The Espionage Act could be shown historically to have a chilling effect on important journalism.
Dobbin then asked Shenkman whether he agreed that the provisions under which Assange were tried had never been intended to apply to “classic espionage”. Shenkman said most authorities would reject the idea of a clear and singular intent. Dobbin said that in the Morison case the judgement had rejected the argument that the provision was limited to classic espionage. Shenkman rather wickedly agreed that yes, that judgement had indeed broadened the application of the act – as opposed to refining it. But other judgements were available. Besides, she had asked him about intent. What Congress intended in 1917 and what the Morison court decided were two different things. There had been numerous successful prosecutions of whistleblowers under Obama. Plainly the courts generally accepted that these provisions apply to government insiders. There had never been a prosecution of a journalist or publisher.
Dobbin, who is nothing if not persistent, asked Shenkman if he accepted that the Morison judgement says that only provision 79/4 applies to classic espionage. Shenkman replied that the Morison judgement was a single star in the night sky among myriad points of navigation through these laws. They then got in to discussion of the views of various professors on the subject.
Now I cede to very few in my interest in the details of this case, and certainly I absolutely appreciate the fundamental threat posed by the insistence on the general application of the Espionage Act against journalists as outlined by the prosecution, above all in the current political climate; but it was now late Friday afternoon after a very hard week and I have my limits. I decided to see how many verses of Shelley’s The Masque of Anarchy I could recall instead.
When my consciousness groped its way back to the courtroom, Dobbin was putting to Shenkman that the fact that numerous potential prosecutions had been dropped, just proved the act was used responsibly and properly. Shenkman said that was to ignore the chilling effect both in general and in specific threats to prosecute. Chilling caused papers costs, delays and even bankruptcies. President Roosevelt had used the threat of the Espionage Act to suppress independent black newspapers.
Dobbin suggested that in the instances where it had been decided not to prosecute due to the First Amendment, these cases had related to responsible major media titles. Shenkman replied that this was not true at all. Beacon Press, for example, which published the full Pentagon Papers, was a small religious organisation.
Dobbin said none of the past examples resembles Wikileaks. Shenkman again disagreed. There were many striking points of similarity in different cases. Dobbin replied that Wikileaks’ sole purpose and design was to source material from those entitled to receive it and give it to those not entitled to see it. It was solicitation on a mass scale. Shenkman said she was reaching for a distinction. Similarities to the Beacon Press and Amerasia cases were obvious.
Dobbin concluded that Shenkman’s opinion and evidence was “frivolous and nonsensical”.
Mark Summers then re-examined Shenkman. He referred to the Jack Anderson case. Anderson had published entire Top Secret documents, unredacted, in time of war. He had not been prosecuted under the Espionage Act on First Amendment grounds. Shenkman replied yes, and the documents he had published were particularly sensitive communications intelligence (intercepts).
Summers referred to sentences from judgements which Dobbin had invited Shenkman to accept as “uncontrovertible statements of the law” but which were anything but. In the Morison case he pointed out that the two other judges in the case had explicitly contradicted the very sentence Dobbin had quoted. Judge Wilkerson had stated “the First Amendment interest in informed national debate does not simply vanish at the mention of the words “national security””.
Summers said above all the US government now relied on the Rosen judgement. He asked what level of court that had been. Shenkman replied that it was a district court, the lowest level of US court. And the Justice Department had decided against proceeding with it. Finally Summers said that Shenkman had stated there had never been a prosecution, but there had been threats resulting in a chilling effect. What types of people had been threatened with prosecution under the Espionage Act for publishing? Shenkman stated that in every case it was political; opponents of the Presidency, minority groups, pacifists and dissidents.
That concluded the week.
COMMENT
There are numerous serious questions relating to the handling of evidence in this case. I should start by saying that the government of the United States had objected to almost all of the defence evidence. They want the defence witnesses ruled as either not expert (hence the sustained rudeness and attacks) or not relevant. Judge Baraitser had ruled that she will hear all the evidence, and decide only when she comes to judgement, what is and is not admissible.
Against that we then have her decision that the witnesses can only have half an hour of going through their statements before cross-examination. That is against a US government request that witness statements should not be heard before cross-examination at all. Theoretically Baraitser agreed to this, but she let in half an hour to “orient the witness”, which gets the basic facts out there. Baraitser rejected the defence arguments that statements should be read or explained at length by the witness in court, for the benefit of the public, on the basis that the statements are published. But they are not published. The Court does not publish them. It gives copies to journalists registered to cover the trial, but those journalists have no interest in publishing them. The first two days’ witness statements were published here, but for several days they stopped. They seem to have started again on Friday, but this is not satisfactory for the public.
Next we have the specific pieces of evidence that are banned on US objection, like the details of el-Masri’s torture or of the content of the Collateral Murder video. I can understand that it is true that this court is not judging if el-Masri was tortured – in fact that is now established by the ECHR. But plainly his story is relevant to Wikileaks’ defence of necessary publication to prevent crime and enable judicial process. The fact is that the USA wants to avoid the political embarrassment and media publicity of el-Masri’s torture and the events of the Collateral Murder video being detailed in court. Why an English court is complying in this censorship is beyond me.
I am deeply suspicious of the “breakdown” of the videolink making el-Masri’s evidence in person “technically impossible” after days in which the US government tried to block that evidence. I am also deeply suspicious of the strange fact that unlike other witnesses with video problems, there was no rescheduling. Video and sound quality has been deplorable for several defence witnesses. In a world where we have all got used to videocalls this last few months, the extraordinary failure of the court to operate everyday technology is a level of incompetence it is difficult quite to believe in.
Finally and more importantly, what constitutes evidence?
Lewis consistently and repeatedly quotes the words of Luke Harding and David Leigh to witnesses, more or less every day, yet Leigh and Harding are not in the witness box to be cross-examined on their words. As you know, I am absolutely furious that Lewis has been allowed to repeat Harding’s words about the conversation in the El Moro restaurant to witness after witness, but that John Goetz, who was actually part of the conversation and an eyewitness, was not permitted by the court to testify on the subject. That is absolutely ludicrous.
Finally, we have the affidavits submitted by Kromberg and Dwyer on behalf of the US government. These are apparently treated as “evidence”. Lewis specifically categorised Dwyer’s proof free assertion in Dywer’s affidavit that informants had been harmed, as “evidence” this had happened. But how can these affidavits be evidence if the authors cannot be cross-examined on them? One of the defence counsel told me on Friday that Kromberg will not be made available for cross-examination, as though they had just been told of that. It is not right that an affidavit full of highly dodgy statements and propositions should be accepted as evidence if the author cannot be challenged. The whole question of “evidence” in this case needs a fundamental rethink.
On another point, I was very pleased Nicky Hager testified under oath that in the cables he redacted “strictly protect” designation of names was used to prevent political embarrassment, as the prosecution has repeatedly claimed that the 134,000 unclassified and/or redacted cables in the original limited mass cable release by Wikileaks included names marked “strictly protect”. This is not a security classification. As someone who operated the near identical UK system for over 20 years and held the very highest levels of security clearance, and frequently in that period read American material, let me explain to you. Any material which contained the name of someone who would be at risk of death if published, or which would create real and acute danger to the national interest, would by very definition have been classified “Secret” or “Top Secret”, the latter generally relating to intelligence material. All of the Chelsea Manning material was at a level of classification below that.
Furthermore as Daniel Ellsberg pointed out, and I was very well used to, there exists separately to the classification a distribution system which limits who actually gets the material. The Manning material was unlimited in distribution and therefore available literally to tens of thousands of people. That again could not have happened if it contained the dangers now claimed.
“Strictly protect” is nothing to do with security classification, which is what protects national security information. As Hager said, its normal use is to prevent political embarrassment. As in Australasia, it is a term largely used to protect their secret political assets. Here is an example from a Wikileaks cable which I believe is one of those in the specific release which the prosecution is citing.
As you can see, nothing whatsoever to do with the safety of informants in Afghanistan. Much more to do with other objectives.
I am very glad Hager did raise the real use of “strictly protect”, because I have been waiting for the right moment to explain all that.
So that is my account of Friday, published on Monday. It is perhaps fortunate that normally I don’t have the luxury of time in publishing the reports. Otherwise they might all ramble on at this length.
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I have to confess that after the last court session of another tough week (and yesterday was a particularly emotional and startling court day) I went to the pub with a friend after court yesterday rather than start writing. So Friday’s report this afternoon.
Although Julian’s days in court are horrible in some ways, with 5am starts, strip searches and shackling for transport in a kind of upright fridge inside an armoured serco van, at least he gets to see us all and after the final session he gave John Pilger and I a raised fist salute as they took him down. It has definitely been better for him than effective solitary confinement all this time. Wondering what he is thinking right now back locked in his Belmarsh cell.
A less dramatic day, but marked by a brazen and persistent display of this US Government’s insistence that it has the right to prosecute any journalist and publication, anywhere in the world, for publication of US classified information. This explicitly underlay the entire line of questioning in the afternoon session.
The morning opened with Professor John Sloboda of Iraq Body Count. He is a Professor of Psychology and musicologist who founded Iraq Body Count together with Damit Hardagan, and was speaking to a joint statement by both of them.
Professor Sloboda stated that Iraq Body Count attempted to build a database of civilian deaths in Iraq based on compilation of credible published material. Their work had been recognised by the UN, EU and the Chilcot Inquiry. He stated that protection of the civilian population was the duty of parties at war or in occupation, and targeting of civilians was a war crime.
Wikileaks’ publication of the Iraqi War Logs had been the biggest single accession of material to the Iraq Body Count and added 15,000 more civilian deaths, plus provided extra detail on many deaths which were already recorded. The logs or Significant Activity Reports were daily patrol records, which recorded not only actions and consequent deaths the patrols were involved in, but also deaths which they came across.
After the publication of the Afghan war Logs, Iraq Body Count (IBC) had approached Wikileaks to be involved in the publication of the Iraq equivalent material. They thought they had accumulated a particular expertise which would be helpful. Julian Assange had been enthusiastic and had invited them to join the media consortium involved in handling the material.
There were 400,000 documents in the Iraq war logs. Assange had made very plain that great weight must be placed on document security and with careful redaction to prevent, in particular, names from being revealed which could identify individuals who might come to harm. It was however impossible to redact that volume of documents by hand. So Wikileaks had sought help in developing software that would help. IBC’s Hamit Dardagan had devised the software which solved the problem.
Essentially, this stripped the documents of any word not in the English dictionary. Thus arabic names were removed, for example. In addition other potential identifiers such as occupations were removed. A few things like key acronyms were added to the dictionary. The software was developed and tested on sample batches of telegrams until it worked well. Julian Assange was determined redaction should be effective and resisted pressure from media partners to speed up the process. Assange always meticulously insisted on redaction. On balance, they over-redacted for caution. Sloboda could only speak on the Iraq War Logs, but these were published by Wikileaks in a highly redacted form which was wholly appropriate.
Joel Smith then stood up to cross-examine for the US Government. I am sure Mr Smith is a lovely man. But sadly his looks are against him. You would certainly not enter an alleyway if he were anywhere nearby. The first time I saw him I presumed he was heading for the dock in court 11.
As is the standard prosecution methodology in this hearing, Mr Smith set out to trash the reputation of the witness. [I found this rather ironic, as Iraq Body Count has been rather good for the US Government. The idea that in the chaos of war every civilian death is reported somewhere in local media is obviously nonsense. Each time the Americans flattened Fallujah and everyone in it, there was not some little journalist writing up the names of the thousands of dead on a miraculously surviving broadband connection. Iraq Body Count is a good verifiable minimum number of civilian deaths, but no more, and its grandiose claims have led it to be used as propaganda for the “war wasn’t that bad” brigade. My own view is that you can usefully add a zero to their figures. But I digress.]
Smith established that Sloboda’s qualifications are in psychology and musicology, that he had no expertise in military intelligence, classification and declassification of documents or protection of intelligence sources. Smith also established that Sloboda did not hold a US security clearance (and thus was in illegal possession of the information from the viewpoint of the US government). Sloboda had been given full access to all 400,000 Iraq War Logs shortly after his initial meeting with Assange. They had signed a non-disclosure agreement with the International Committee of Investigative Journalists. Four people at IBC had access. There was no formal vetting process.
To give you an idea of this cross-examination:
Smith Are you aware of jigsaw identification? Sloboda It is the process of providing pieces of information which can be added together to discover an identity. Smith Were you aware of this risk in publishing? Sloboda We were. As I have said, we redacted not just non-English words but occupations and other such words that might serve as a clue. Smith When did you first speak to Julian Assange? Sloboda About July 2010. Smith The Afghan War logs were published in July 2010. How long after that did you meet Assange? Sloboda Weeks.
…..
Smith You talk of a responsible way of publishing. That would include not naming US informants? Sloboda Yes. Smith Your website attributes killings to different groups and factions within the state as well as some outside influences. That would indicate varied and multiple sources of danger to any US collaborators named in the documents. Sloboda Yes. Smith Your statement spoke of a steep learning curve from the Afghan war logs that had to be applied to the Iraq war logs. What does that mean? Sloboda It means Wikileaks felt that mistakes were made in publishing the Afghan war logs that should not be repeated with the Iraq war logs. Smith Those mistakes involved publication of names of sources, didn’t they? Sloboda Possibly, yes. Or no. I don’t know. I had no involvement with the Afghan War logs. Smith You were told there was time pressure to publish? Sloboda Yes, I was told by Julian he was put under time pressure and I picked it up from other media partners. Smith And it was IBC who came up with the software solution, not Assange? Sloboda Yes. Smith How long did it take to develop the software? Sloboda A matter of weeks. It was designed and tested then refined and tested again and again. It was not ready by the original proposed publication date of the Iraq war logs, which is why the date was put back. Smith Redaction then would remove all non-English words. But it would still leave vital clues to identities, like professions? They had to be edited by hand? Sloboda No. I already said that professions were taken out. The software was written to do that. Smith It would leave in buildings? Sloboda No, other words like mosque were specifically removed by the software. Smith But names which are also English words would be left in. Like Summers, for example. Sloboda I don’t think there are any Iraqi names which are also English words. Smith Dates, times, places? Sloboda I don’t know. Smith Street names? Sloboda I don’t know.
[Sloboda was obviously disconcerted by Smith’s quickfire technique and had been rattled into firing back equally speedy and short answers. If you think about it a moment, Iraqi street names are generally not English words.] Smith Vehicles? Sloboda I don’t know. Smith You said at a press conference that you had “merely scratched the surface” in looking at the 400,000 documents. Sloboda Yes. Smith You testified that Julian Assange shared your view that the Iraqi war logs should be published responsibly. But in a 2010 recorded interview at the Frontline Club, Mr Assange called it regrettable that informants were at risk, but said Wikileaks only had to avoid potential for unjust retribution; and those that had engaged in traitorous behaviour or had sold information ran their own risk. Can you comment? Sloboda No. He never said anything like this to me. Smith He never said he found the process of redaction disturbing? Sloboda No, on the contrary. He said nothing at all like that to me. We had a complete meeting of minds on the importance of protection of individuals. Smith Not all the logs related to civilian deaths? Sloboda No. The logs put deaths in four categories. Civilian, host nation (Iraqi forces and police), friendly nation (coalition forces) and enemy. The logs did not always detail the actions in which deaths occurred. Sometimes the patrols were the cause, sometimes they detailed what they came across. We moved police deaths from the host nation to the civilian category.
[One of the problems I personally have with IBC’s approach is that they accepted US forces’ massive over-description of the dead as “hostile”. Obviously when US forces killed someone they had an incentive to list them as “hostile” and not “civilian”.]
Smith Are you aware that when the Iraq Significant Activity Reports (war logs) were released online in October 2010, they did in fact contain unredacted names of co-operating individuals? Sloboda No, I am not aware of that.
Smith now read an affidavit from a new player [Dwyer?] which stated that the publication of the SAR’s put co-operating individuals in grave danger. Dwyer purported to reference two documents which contained names. Dwyer also stated that “military and diplomatic experts” confirmed individuals had been put in grave danger. Smith How do you explain that? Sloboda I have no knowledge. It’s just an assertion. I haven’t seen the documents referred to. Smith Might this all be because Mr Assange “took a cavalier attitude to redaction”? Sloboda No, definitely not. I saw the opposite. Smith So why did it happen? Sloboda I don’t know if it did happen. I haven’t seen the documents referred.
That ended Professor Sloboda’s evidence. He was not re-examined by the defence.
I have no idea who “Dwyer” – name as heard – is or what evidential value his affidavit might hold. It is a constant tactic of the prosecution to enter highly dubious information into the record by putting it to witnesses who have not heard of it. The context would suggest that “Dwyer” is a US government official. Given that he claimed to be quoting two documents he was alleging Wikileaks had published online, it is also not clear to me why those published documents were not produced to the court and to Professor Sloboda.
We now come to the afternoon session. I have a difficulty here. The next witness was Carey Shenkman, an academic lawyer in New York who has written a book on the history of the Espionage Act of 1917 and its use against journalists. Now, partly because Shenkman was a lawyer being examined by lawyers, at times his evidence included lots of case names being thrown around, the significance of which was not entirely clear to the layman. I often could not catch the names of the cases. Even if I produced a full transcript, large chunks of it would be impenetrable to those from a non-legal background – including me – without a week to research it. So if this next reporting is briefer and less satisfactory than usual, it is not the fault of Carey Shenkman.
This evidence was nonetheless extremely important because of the clear intent shown by the US government in cross examination to now interpret the Espionage Act in a manner that will enable them to prosecute journalists wholesale.
Shenkman began his evidence by explaining that the 1917 Espionage Act under which Assange was charged dates from the most repressive period in US history, when Woodrow Wilson had taken the US into the First World War against massive public opposition. It had been used to imprison those who campaigned against the war, particularly labour leaders. Wilson himself had characterised it as “the firm hand of stern repression”. Its drafting was extraordinarily broad and it was on its surface a weapon of political persecution.
The Pentagon Papers case had prompted Edgar and Schmidt to write a famous analysis of the Espionage Act published in the Colombia Law Review in 1973. It concluded that there was incredible confusion about the meaning and scope of the law and capacity of the government to use it. It gave enormous prosecutorial discretion on who to prosecute and depended on prosecutors behaving wisely and with restraint. There was no limit on strict liability. The third or fifth receiver in the chain of publication of classified information could be prosecuted, not just the journalist or publisher but the person who sells or even buys or reads the newspaper.
Shenkman went through three historic cases of potential criminal prosecution of media under the Espionage Act. All had involved direct Presidential interference and the active instigation of the Attorney General. All had been abandoned before the Grand Jury stage because the Justice Department had opposed proceeding. Their primary concern had always been how to distinguish media outlets. If you prosecuted one, you had to prosecute them all.
[An aside for my regular readers – that is a notion of fairness entirely absent from James Wolffe, Alex Prentice and the Crown Office in Scotland.]
The default position had become that the Espionage Act was used against the whistleblower but not against the publisher or journalist, even when the whistleblower had worked closely with the journalist. Obama had launched the largest ever campaign of prosecution of whistleblowers under the Espionage Act. He had not prosecuted any journalist for publishing the information they leaked.
Claire Dobbin then rose to cross-examine on behalf of the US Government, which evidently is not short of a penny or two to spend on multiple counsel. Mrs Dobbin looks a pleasant and unthreatening individual. It was therefore surprising that when she spoke, out boomed a voice that you would imagine as emanating from the offspring of Ian Paisley and Arlene Foster. This impression was of course reinforced by her going on to advocate for harsh measures of repression.
Ms Dobbin started by stating that Mr Shenkman had worked for Julian Assange. Shenkman clarified that he had worked in the firm of the great lawyer Michael Ratner, who represented Mr Assange. But that firm had been dissolved on Mr Ratner’s death in 2016 and Shenkman now worked on his own behalf. This all had no bearing on the history and use of the Espionage Act, on which he had been researching in collaboration with a well-established academic expert.
Dobbin than asked whether Shenkman was on Assange’s legal team. He replied no. Dobbin pointed to an article he had written with two others, of which the byline stated that Shenkman was a member of Julian Assange’s legal team. Shenkman replied he was not responsible for the byline. He was a part of the team only in the sense that he had done a limited amount of work in a very junior capacity for Michael Ratner, who represented Assange, that related to Assange. He was “plankton” in Ratner’s firm.
Dobbin said that the article had claimed that the UK was illegally detaining Assange in the Ecuadorean Embassy. Shenkman replied that was the view of the UN Working Group on Arbitrary Detention, with which he concurred. Dobbin asked if he stood by that opinion. Shenkman stated that he did, but it bore no relationship to his research on the history of the Espionage Act on which he was giving evidence.
Dobbin asked whether, having written that article, he really believed he could give objective evidence as an expert witness. Shenkman said yes he could, on the history of use of the Espionage Act. It was five years since he had left the Ratner firm. Lawyers had all kinds of clients that very loosely related in one way or another to other work they did. They had to learn to put aside and be objective.
Dobbin said that the 2013 article stated that Assange’s extradition to the United States was almost certain. What was the basis of this claim? Shenkman replied that he had not been the main author of that article, with which three people were credited. He simply could not recall that phrase at this time or the thought behind it. He wished to testify on the history of the Espionage Act, of which he had just written the first historical study.
Dobbin asked Shenkman if he was giving evidence pro bono? He replied no, he was appearing as a paid expert witness to speak about the Espionage Act.
Dobbin said that the defence claimed that the Obama administration had taken the decision not to prosecute Assange. But successive court statements showed that an investigation was still ongoing (Dobbin took him through several of these, very slowly). If Assange had really believed the Obama administration had dropped the idea of prosecution, then why would he have stayed in the Embassy?
Shenkman replied that he was very confused why Dobbin would think he had any idea what Assange knew or thought at any moment in time. Why did she keep asking him questions about matters with which he had no connection at all and was not giving evidence?
But if she wanted his personal view, there had of course been ongoing investigations since 2010. It was standard Justice Department practice not to close off the possibility of future charges. But if Holder and Obama had wanted to prosecute, wouldn’t they have brought charges before they left office and got the kudos, rather than leave it for Trump?
Dobbin then asked a three part question that rather sapped my will to live. Shenkman sensibly ignored it and asked his own question instead. “Did I anticipate this indictment? No, I never thought we would see something as political as this. It is quite extraordinary. A lot of scholars are shocked.”
Dobbin now shifted ground to the meat of the government position. She invited Shenkman to agree with a variety of sentences cherry-picked from US court judgements over the years, all of which she purported to show an untrammelled right to put journalists in jail under the Espionage Act. She started with the Morison Case in the fourth appellate circuit and a quote to the effect that “a government employee who steals information is not entitled to use the First Amendment as a shield”. She invited Shenkman to agree. He declined to do so, stating that particular circumstances of each case must be taken into consideration and whistleblowing could not simply be characterised as stealing. Contrary opinions exist, including a recent 9th appellate circuit judgement over Snowden. So no, he did not agree. Besides Morison was not about a publisher. The Obama prosecutions showed the historic pattern of prosecuting the leaker not the publisher.
Dobbin then quoted a Supreme Court decision with a name I did not catch, and a quote to the effect that “the First Amendment cannot cover criminal conduct”. She then fired another case at him and another quote. She challenged him to disagree with the Supreme Court. Shenkman said the exercise she was engaged in was not valid. She was picking individual sentences from judgements in complex cases, which involved very different allegations. This present case was not about illegal wiretapping by the media like one she quoted, for example.
Dobbin then asked Shenkman whether unauthorised access to government databases is protected under the First Amendment. He replied that this was a highly contentious issue. There were, for example, a number of conflicting judgements in different appellate circuits about what constituted unauthorised access.
Dobbin asked if hacking a password hash would be unauthorised access. Shenkman replied this was not a simple question. In the present case, the evidence was the password was not needed to obtain documents. And could she define “hacking” in law? Dobbin said she was speaking in layman’s terms. Shenkman replied that she should not do that. We were in a court of law and he was expected to show extreme precision in his answers. She should meet the same standard in her questions.
Finally Dobbin unveiled her key point. Surely all these contentious points were therefore matters to be decided in the US courts after extradition? No, replied Shenkman. Political offences were a bar to extradition from the UK under UK law, and his evidence went to show that the decision to prosecute Assange under the Espionage Act was entirely political.
Mrs Dobbin will resume her cross examination of Mr Shenkman tomorrow.
COMMENT
I have two main points to make. The first is that Shenkman was sent a 180 page evidence bundle from the prosecution on the morning of his testimony, at 3am his time, before giving evidence at 9am. A proportion of this was entirely new material to him. He is then questioned on it. This keeps happening to every witness. On top of which, like almost every witness, his submitted statement addressed the first superseding indictment not the last minute second superseding indictment which introduces some entirely new offences. This is a ridiculous procedure.
My second is that, having been very critical of Judge Baraitser, it would be churlish of me not to note that there seems to be some definite change in her attitude to the case as the prosecution makes a complete horlicks of it. Whether this makes any long term difference I doubt. But it is pleasant to witness.
It is also fair to note that Baraitser has so far resisted strong US pressure to prevent the defence witnesses being heard at all. She has decided to hear all the evidence before deciding what is and is not admissible, against the prosecution desire that almost all the defence witnesses are excluded as irrelevant or unqualified. As she will make that decision when considering her judgement, that is why the prosecution spend so much time attacking the witnesses ad hominem rather than addressing their actual evidence. That may well be a mistake.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
Yet another shocking example of abuse of court procedure unfolded on Wednesday. James Lewis QC for the prosecution had been permitted gratuitously to read to two previous witnesses with zero connection to this claim, an extract from a book by Luke Harding and David Leigh in which Harding claims that at a dinner at El Moro Restaurant Julian Assange had stated he did not care if US informants were killed, because they were traitors who deserved what was coming to them.
This morning giving evidence was John Goetz, now Chief Investigations Editor of NDR (German public TV), then of Der Spiegel. Goetz was one of the four people at that dinner. He was ready and willing to testify that Julian said no such thing and Luke Harding is (not unusually) lying. Goetz was not permitted by Judge Baraitser to testify on this point, even though two witnesses who were not present had previously been asked to testify on it.
Baraitser’s legal rationale was this. It was not in his written evidence statement (submitted before Lewis had raised the question with other witnesses) so Goetz was only permitted to contradict Lewis’s deliberate introduction of a lie if Lewis asked him. Lewis refused to ask the one witness who was actually present what had happened, because Lewis knew the lie he is propagating would be exposed.
This is my report of Lewis putting the alleged conversation to Clive Stafford Smith, who knew nothing about it:
Lewis then took Stafford Smith to a passage in the book “Wikileaks; Inside Julian Assange’s War on Secrecy”, in which Luke Harding stated that he and David Leigh were most concerned to protect the names of informants, but Julian Assange had stated that Afghan informants were traitors who merited retribution. “They were informants, so if they got killed they had it coming.” Lewis tried several times to draw Stafford Smith into this, but Stafford Smith repeatedly said he understood these alleged facts were under dispute and he had no personal knowledge.
This is my report of James Lewis putting the same quote to Prof Mark Feldstein, who had absolutely no connection to the event:
Lewis then read out again the same quote from the Leigh/Harding book he had put to Stafford Smith, stating that Julian Assange had said the Afghan informants would deserve their fate.
James Lewis QC knew that these witnesses had absolutely no connection to this conversation, and he put it to them purely to get the lie into the court record and into public discourse. James Lewis QC also knows that Goetz was present on the occasion described. The Harding book specifies the exact date and location of the dinner and that it included two German journalists, and Goetz was one of them.
It is plainly contrary to natural justice that a participant in an event introduced into the proceedings should not be allowed to tell the truth about it when those with no connection are, tendentiously, invited to. Whatever the rules of evidence may say, Baraitser and Lewis have here contrived between them a blatant abuse of process. It is a further example of the egregious injustices of this process.
If that does not make you angry, try this. Daniel Ellsberg was to give evidence this afternoon. Edward Fitzgerald QC applied for his videolink evidence to be heard at 3.15pm which is 07.15am in California where Dan lives. Baraitser insisted it could not be put back beyond 2.30 pm, thus forcing an 89 year old man to give evidence at 6.30am. Simply stunning.
As it happens, when Dan is 108 and on his death bed he will still be able to outwit James Lewis QC while reading Moby Dick and playing the ukelele, but the continual and cynical lack of concern for the defence just keeps punching you in the face.
John Goetz was the first witness this morning. Senior Investigations Editor at NDR since 2011, he was at Der Spiegel from 2007-11. He had published a series of articles on German involvement in the Afghan War, including one on a bombing raid on Kunduz which massacred civilians, for which he had won Germany’s highest journalism award. In June 2010 he went to London to meet with Wikileaks and the Guardian to work on the Afghan War Logs.
In a series of meetings in “the bunker” at the Guardian with the NYT and the other major media partners, the partnership was formed whereby all would pool effort in researching the Afghan War Logs but each party would choose and publish his own stories. This cooperative venture between five major news organisations – normally rivals – was unique at the time.
Goetz had been struck by what seemed to him Julian Assange’s obsession with the security of the material. He insisted everything was encrypted and strict protocols were in place for handling the material. This had been new territory for the journalists. The New York Times was tasked with liaison with the White House, the Department of Defence and State Department on questions of handling the material.
Asked by Mark Summers to characterise the Afghan War Logs, Goetz said that they were fascinating first-hand material giving low level reports on actual operations. This was eye witness material which sometimes lacked the larger view. There was abundant first-hand evidence of war crimes. He had worked with Nick Davies of the Guardian on the Task Force 373 story.
Julian Assange had been most concerned to find the names in the papers. He spent a lot of time working out technical ways to identify names in the tens of thousands of documents. Mark Summers asked f he had been looking for the names for the purpose of redaction, and Goetz confirmed it was for redaction. He had interviewed Assange on the harm minimisation programme of the operation.
On behalf of the group Eric Schmitt of the NYT had been speaking to the White House and he had sent an email identifying 15,000 documents the White House did not want published to prevent harm to individuals or to American interests. It was agreed not to publish these documents and they were not published. Summers asked Goetz if he was aware of any names that slipped through, and he replied not.
Goetz was not so involved for family reasons when the consortium went through the same process with the Iraq war logs. But he knew that when a large number of these were released in the USA under a FOIA request, it was seen that Wikileaks had redacted those they released more heavily than the Department of Defense did. Goetz recalled an email from David Leigh of the Guardian stating that publication of some stories was delayed because of the amount of time Wikileaks were devoting to the redaction process to get rid of the “bad stuff”.
Summers then turned to the investigation of Khaled el-Masri. Goetz stated that back in 2005–6 when in his first stint at NDR he had looked into what seemed at the time the extraordinary claims of German citizen el-Masri, who stated that he had been kidnapped in Skopje, flown shackled and hooded around the world, subjected to constant beatings and torture, eventually ending up in what he believed to be a US detention facility in Afghanistan. At the time his claims had seemed difficult to believe.
[If I might interject a personal note here, this is around the time I myself blew the whistle on the torture programme, as a UK ambassador. I was effectively called a liar by then Foreign Secretary Jack Straw to parliament who described the extraordinary rendition programme as a “conspiracy theory”. I know how hard it was to be believed then.]
Goetz’s investigations had shown the story to be true. Using rendition flight logs and hotel records, he had even managed to track the actual perpetrators to North Carolina, and had spoken to some of them there. Enough evidence was produced for arrest warrants against 13 American agents or soldiers to be issued in Munich. Summers asked Goetz whether they were arrested. He replied that no, to their surprise, nothing was done to deliver the arrest warrant to the USA.
Then when the Wikileaks diplomatic cables were released, they had been able to see the pressure brought on the German government not to deliver the arrest warrant. The US had told Germany that to do so would have serious repercussions for the US/German relationship.
Summers asked if Goetz was involved in working through the cables for Der Spiegel. Goetz replied he was. In addition to the main media partners, Wikileaks had brought in a second phase of local media partners in the third countries involved, who might better be able both to redact and to know what were the important stories for a local audience. This had introduced some delays which were frustrating for Goetz.
Summers asked how thorough the process of redaction was. Goetz said that the original strict protocols remained in place and he did not know of anybody who had come to any harm. The State Department was actively engaged in the process. P J Crowley and others would call and request redactions and omissions. These were made. Eventually though a decision was taken by the US Government to withdraw cooperation.
Baraitser issued a time warning.
Summers then asked about events leading to the publishing of the unredacted cables. Goetz said this was a complicated process. It started when Luke Harding and David Leigh published a book in February 2011 containing the password to the online cache of encrypted cables. This was discussed on various mirroring sites, and eventual publication of the full cache by Cryptome after Der Freitag became involved. Cryptome was at that time very well known and an important source for journalists.
Summers then asked about the breakdown of relationships between Wikileaks and the Guardian. It was at this point that Baraitser ruled that Summers was not allowed to ask about what happened at the dinner he attended at El Moro restaurant. Summers made a formal request, as Lewis had introduced the subject with other witnesses who unlike Goetz had not been there. Lewis objected, and Baraitser said no.
James Lewis QC then cross-examined for the US Government and went straight to the publication of unredacted cables by Wikileaks in August and September 2011. Goetz referred to his earlier evidence on the releasing of the password, and said that Cryptome published first. Lewis countered that on 29 August 2011 Wikileaks had released 133,877 cables together with a statement that this was done “in accordance with Wikileaks’ commitment to maximising impact and making information available to all”. This was two days before Cryptome published.
A rather chaotic period ensued. Julian cried out from the dock that this was a misquote. He was warned he would be excluded from court by Baraitser. It turned out it was a misquote, and what I give above is the corrected version. There was then some rather confused questioning between Goetz and Lewis, of which the upshot was that those were unclassified and/or redacted cables (a quarter of the cache). Goetz said he could not comment to Lewis’s suggestion that some had names marked “strictly protect”.
Lewis suggested that after the collaboration, the material was just dumped. Goetz said no. Wikileaks had invested a lot of time, money and staff resources in the programme and from detailed discussions he knew they intended it to continue to roll out for at least another year. Then Cryptome had published.
Lewis quoted from a Guardian article of 1 September in which the original media partners, including Der Spiegel, condemned the release of the unredacted documents. He asked Goetz whether the 15,000 withheld cables had also been “dumped”? Goetz replied they were not cables, they were Afghan war logs, and no, not to his knowledge.
Lewis then said there was evidence that called Assange thoughtful, humorous and energetic. Did Goetz agree? He said yes. Lewis then quoted Christine Assange on what a good father her son was, and invited Goetz to comment. Goetz replied he was in no position to know.
[It is hard to explain this somewhat sinister finishing questioning. Possibly to counter psychiatric evidence?]
In re-examination by Mark Summers, Goetz stated that while the cables redaction process was going on, no names at risk had been published. To his knowledge, nobody had ever been harmed as a result of publication. He knew from his close involvement that Assange had tried very hard to prevent the publication of the unredacted cables. He had pleaded with Der Freitag.
In the afternoon, the witness was Dan Ellsberg, doyen of whistleblowers. Born in Chicago in 1931, he was educated at Harvard and Cambridge. He served in the Marines from 1954–7, and from 1964–5 was Special Assistant to the US Secretary of Defence. He was then involved in the making of an official classified 47-volume report entitled History of Decision Making in Vietnam.
Ellsberg briefly explained that the report showed that the war in Vietnam had been both continued in the knowledge that it could not be won. It showed that both the public and Congress had repeatedly been lied to. He had leaked the report to lawmakers and then the public as The Pentagon Papers. This had resulted in the famous case on prior restraint on publication. There had also been a less well-known criminal case against him personally under the Espionage Act. This had been dismissed with prejudice by the court.
Asked by Edward Fitzgerald to comment on the Wikileaks/Manning publication on Afghanistan, Ellsberg replied that he saw extremely strong parallels with his own case. These papers had the capability of informing the public of the progress of the war and the limited possibility that it could be brought to a successful conclusion at all. The Afghan War Logs showed operational-level information not a wider view, but the effect was similar. He strongly identified with both the source and the process of publication.
Fitzgerald then asked Ellsberg whether Assange held political opinions relevant to this publication. Ellsberg said it was absurd for the prosecution to argue otherwise. He had himself been motivated by his political views in his publication and Assange’s views were very similar. He had held very interesting discussions with Assange and felt a great affinity with him. They both believed that there was a great lack of transparency to the public over government decisions. The public were fed much information that was false.
When the public had so little genuine information and were fed so much false information, real democracy was not possible. An example was the Iraq War, clearly an illegal war of aggression in breach of the UN charter, sold on lies to the public.
The Afghan War Logs were similar to low-level reports Ellsberg had himself written in Vietnam. It was the same thing; the invasion and occupation of a foreign country against the wishes of the majority of its population. That could only bring defeat or endless conflict: 19 years so far. The war logs had exposed a pattern of war crimes: torture, assassination and death squads. The one thing that had changed since Vietnam was that these things were now so normalised they were classified below Top Secret.
All the Pentagon Papers were Top Secret. None of the Wikileaks documents were. They were not just below Top Secret, they had no restricted distribution classifications. This meant that by definition there should be nothing genuinely sensitive, and certainly not life-endangering, in papers of this classification.
Fitzgerald asked him about the Collateral Murder video. Ellsberg stated that it definitely showed murder, including the deliberate machine gunning of a wounded and unarmed civilian. That it was murder was undoubted. The dubious word was “collateral”, which implies accidental. What was truly shocking about it was the Pentagon reaction that these war crimes were within the Rules of Engagement. Which permitted murder.
Edward Fitzgerald asked whether Ellsberg was allowed to put forward the question of intention at his trial. He replied no, the distribution of classified material outside those designated to receive it was an offence of strict liability under the 1917 Espionage Act. This was absolutely inappropriate to trials of whistleblowers. “I did not get a fair trial and nor have recent whistleblowers in the USA. Julian Assange could not get a fair trial.”
Cross-examining for the US Government, James Lewis QC asked Ellsberg to confirm that at the time he copied the Pentagon Papers he was working for the Rand Corporation. He said yes. Lewis said that Assange was not being prosecuted for publication of the Collateral Murder video. Ellsberg said that the Collateral Murder video was essential to an understanding of the Rules of Engagement. Lewis countered that Assange was not being charged for publication of the Rules of Engagement. He was only being charged for publication of unredacted names of those who might come to harm.
Ellsberg replied that he had read the superseding indictment and that Assange was being charged with obtaining, receiving and possession of material including the Rules of Engagement and the Collateral Murder video, and all the documents. On publishing, he was only charged with the names. Lewis said the other charges related to conspiracy with Chelsea Manning. Ellsberg replied “Yes. They are still charges.”
Ellsberg quoted US Assistant Attorney Gordon Kromberg stating that prosecution was for documents up to Secret level containing the names of those “who risked their lives and freedom while helping the USA”. Lewis contrasted this with Ellsberg “when you published the Pentagon Papers you were very careful what you gave to the media”. Ellsberg replied that he withheld three or four volumes not to cause difficulties to diplomatic efforts to end the war.
Lewis suggested he was protecting individuals. Ellsberg said no; if he released those documents, the US government might have used it as an excuse to exit diplomacy and continue the war. Lewis asked if there were names in the Pentagon Papers that would risk harm to them. Ellsberg replied yes. In one case, a clandestine CIA agent was named, involved in the CIA assassination of a major Vietnamese politician. He was a personal friend of Ellsberg and Ellsberg had thought hard about it, but had left him in.
Lewis Asked Ellsberg whether he had read the article “Why Wikileaks is Not the Pentagon Papers” by Floyd Abrams, who had represented the New York Times in the Pentagon Papers case. Ellsberg replied he had read several articles like this by Abrams. He did not know Abrams. He had only been involved in the civil case, not the criminal one. He had seen him once, at an awards ceremony long after.
Lewis said that Abrams had written that Ellsberg had withheld four volumes, whereas “can anyone doubt” that Assange would have published all of them? Ellsberg replied he disagreed, Abrams had never had one minute of discussion with him or Assange. “He does not understand my motives at all in his article”. The position he outlines is widely held by those who want to criticise Julian Assange, Chelsea Manning and Edward Snowden while pretending to be liberal.
What he writes is simply untrue. Julian Assange withheld 15,000 files. He went through a long, hard process of redaction. He requested help from both the State Department and Department of Defence on redaction. I have no doubt Julian would have removed the volumes as I did, in my place. He had no intention to name names.
Ten years later, the US Government has still not been able to name one single individual who was actually harmed by the Wikileaks releases. I was shocked that Kromberg should make that allegation while offering no evidence. As nobody was hurt, clearly the risk was never as high as they claimed – as indeed the document classification would tell you.
They said exactly the same of me. They said CIA agents and those helping the USA would be hurt. “They said I would have blood on my hands.”
There now followed an extraordinary “question” from James Lewis QC who was permitted to read out about 11 paragraphs from various locations in one of Kromberg’s rambling affidavits, in which Kromberg said that as a result of Wikileaks publication, some US sources had had to leave their homeland, go into hiding, or change their names, in a number of countries, including Afghanistan, Iraq, Iran, Syria, Libya, China and Ethiopia. Some individuals in Afghanistan and Iraq had subsequently disappeared. The Taliban were on record as saying that those who cooperated with US forces would be killed. One Ethiopian journalist was forced to flee Ethiopia after being named as a US source. The US Embassy in China reported threats had been made against some of their named Chinese sources. Wikileaks material was found in the possessions of Osama Bin Laden after he was shot. Lewis asked in a furious voice “How can you possibly, honestly say that nobody was harmed?” Ellsberg With all these people who felt they were in danger, of course I am sorry it was inconvenient for them, and that is regrettable. But was any one of them actually physically harmed? Did one of them actually suffer the claimed physical consequences? Lewis You call it regrettable that people were put at risk. Is it your position that there was absolutely no harm caused by the publication of the names of these individuals? Ellsberg Assange’s actions are absolutely antithetical to the notion that he deliberately published these names. Had hundreds been harmed, that would count against the great good done by publication of the information. No evidence is produced that any actual harm came to them. But his has to be put in the context of the policies which Assange was trying to change, invasions that led to 37 million refugees and 1 million deaths. Of course some people could not be located again in a war that killed a million people and displaced 37 million. The government is extremely hypocritical to pretend a concern for them against their general contempt for Middle Eastern lives. They had even refused to help redact the names. This is a pretence at concern. Lewis What about the disappeared? Is it not common sense that some had been forced to disappear or flee under another name? Ellsberg It does not seem to me that that small percentage of those named who may have been murdered or fled, can necessarily be attributed as a result of Wikileaks, when they are in among more than 1 million who have been murdered and 37 million who have fled.
Lewis then asked Ellsberg if it was true he had held an encrypted back up copy of the Manning material for Assange. Ellsberg replied it was; it had subsequently been physically destroyed.
In re-examination, Fitzgerald took Ellsberg to a passage in the Kromberg affidavit which stated that the US Government could not positively attribute any death to the Wikileaks material. Ellsberg said that was his understanding, and had been said at the Manning trial. He was shocked. It was just like Iraqi WMD. He had at first been inclined to believe the government on Iraqi WMD, just as he had first been inclined to believe the government on deaths caused by Wikileaks releases. In both cases it had proved they were making it up.
COMMENT
The court heard a great deal more truth than it could handle today, and great effort was put into excluding more truth. The US Government succeeded in preventing John Goetz eyewitness contradicting their promulgation of Luke Harding’s lie about what Assange said at El Moro. The US Government also objected, successfully so far, to Khaled el-Masri’s giving evidence on the grounds that he will allege he was tortured in the USA. Given that the European Court of Human Rights and the German courts had both found el-Masri’s story to be true, only in the wacky world of Lewis and Baraitser could it be considered wrong for him to tell the truth in court.
Please share this article by every means at your disposal as all of us reporting this truthfully are suffering extreme social media shadow banning and other suppression.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
The gloves were off on Tuesday as the US Government explicitly argued that all journalists are liable to prosecution under the Espionage Act (1917) for publishing classified information, citing the Rosen case. Counsel for the US government also argued that the famous Pentagon Papers supreme court judgement on the New York Times only referred to pre-publication injunction and specifically did not preclude prosecution under the Espionage Act. The US Government even surmised in court that such an Espionage Act prosecution of the New York Times may have been successful.
It is hard for me to convey to a British audience what an assault this represents by the Trump administration on Americans’ self-image of their own political culture. The First Amendment is celebrated across the political divide and the New York Times judgement is viewed as a pillar of freedom. So much so that Hollywood’s main superstars are still making blockbusters about it, in which the heroes are the journalists rather than the actual whistleblower, Dan Ellsberg (whom I am proud to know).
The US government is now saying, completely explicitly, in court, those reporters could and should have gone to jail and that is how we will act in future. The Washington Post, the New York Times, and all the “great liberal media” of the USA are not in court to hear it and do not report it, because of their active complicity in the “othering” of Julian Assange as something sub-human whose fate can be ignored. Are they really so stupid as not to understand that they are next?
Err, yes.
The prosecution’s line represented a radical departure from their earlier approach which was to claim that Julian Assange is not a journalist and to try and distinguish between his behaviour and that of newspapers. In the first three days of evidence, legal experts had stated that this gloss on the prosecution did not stand up to investigation of the actual charges in the indictment. Experts in journalism also testified that Assange’s relationship with Manning was not materially different from cultivation and encouragement by other journalists of official sources to leak.
By general consent, those first evidence days had gone badly for the prosecution. There was then a timeout for (ahem) suspected Covid among the prosecution team. The approach has now changed and on Tuesday a radically more aggressive approach was adopted by the prosecution asserting the right to prosecute all journalists and all media who publish classified information under the Espionage Act (1917).
The purpose of the earlier approach was plainly to reduce media support for Assange by differentiating him from other journalists. It had become obvious such an approach ran a real risk of failure, if it could be proved that Assange is a journalist, which line was going well for the defence. So now we have “any journalist can be prosecuted for publishing classified information” as the US government line. I strongly suspect that they have decided they do not have to mitigate against media reaction, as the media is paying no attention to this hearing anyway.
I shall now continue my exposition of the questioning of Eric Lewis. I shall not set out as much of this in full detail as dialogue as I did yesterday, but will do so at key points in the summary.
James Lewis QC Returning to the European Court of Human Rights judgement in the case of Babar Ahmad, you state that their finding that solitary confinement is permissible did not take into account more recent studies such as the 2020 Danish study by Wildeman and Andersen. Do you say this study would have reversed the ECHR decision? Eric Lewis That is impossible to say. I hope that if the ECHR had before it the large body of evidence on solitary confinement available today, the judgement may have been different. James Lewis QC What are the five limitations to their study which Wildemann and Andersen mention? Eric Lewis I don’t have it in front of me. James Lewis QC Why did you not mention the five limitations in your report? They state that their methodology is strictly observational and cannot be used to prove cause and effect.
[The report in effect shows a much higher suicide rate post-incarceration among those who had been subjected to solitary confinement, from a very large sample of ex-prisoners.] Eric Lewis I could have written hundreds of pages on recent social sciences developments on solitary confinement. This is just one such report. James Lewis QC You were just fishing about for something, omitting details which counter your opinion. Eric Lewis There is a huge amount of data, including from the US Bureau of Prisons. You just picked out one caveat of one report. James Lewis QC Please keep your answers concise. The situation has changed due to the Cunningham Mitigation. Do you know what that is? Eric Lewis Yes James Lewis QC Why did you not mention it in your report? Eric Lewis Because it is not relevant. A number of recommendations were set out, which have not been implemented in practice. James Lewis QC Gordon Kromberg has produced the Cunningham Mitigation for us. In November 2016, in settlement of an 8th Amendment claim, it was admitted that conditions for mental health treatment in the Florence Colorado ADX are unsatisfactory and a large number of measures were agreed. Do you agree with Mr Kromberg that the Cunningham Mitigation has improved matters.? Eric Lewis In some ways it has improved matters, in other ways things have gotten worse.
James Lewis QC then proceeded to state in response to Eric Lewis’s written statement on Covid, that Gordon Kromberg affirmed that as of 2 September there was no Covid in the Alexandra Detention Centre where Assange would be kept pre-trial. Eric Lewis countered that levels of Covid in federal prisons in the USA are 18%.
James Lewis QC You stated in the press that the maximum sentence is 340 years when now you state it is only 175 years. You miscalculated didn’t you? You took 20 years per count as the base when it should be 10. Eric Lewis It was a mistake in an interview. James Lewis QC You don’t really believe in 175 years maximum sentence, do you? It’s just a soundbite.
Eric Lewis started to answer and James Lewis QC cut him off. Edward Fitzgerald rose and objected that the witness must be allowed to answer. Baraitser agreed. Eric Lewis The US government has called this one of the biggest cases in history. Espionage convictions frequently attract long sentences. Pompeo has categorised Wikileaks as a hostile intelligence agency. The government asked for 60 years for Chelsea Manning. I considered the charges in relation to the official sentencing guidelines. James Lewis QC. Gordon Kromberg has testified that only a tiny fraction of all federal defendants attract the maximum sentence. The sentencing guidelines stipulate no unwarranted disparity with similar convictions. Jeffrey Sterling was a CIA agent convicted of selling secrets on Iran to Russia. He had faced a possible maximum sentence of 130 years, but had received only 42 months. Eric Lewis The prosecution asked for a much longer sentence. In fact that was a very unique case not comparable… James Lewis QC Why did you not give a realistic estimate and not a soundbite?
[In fact James Lewis’ categorisation of the Jeffrey Sterling case is entirely tendentious and it is hardly a sensible comparator. Sterling was a rare black CIA officer, involved in a long and bitter dispute with his employer over racial discrimination, convicted on purely circumstantial evidence of giving information to an American journalist about a completed CIA operation to leak false Iranian plans to Russia. Sterling was not accused of leaking to Russia. The entire case was very dubious.]
Eric Lewis I followed sentencing guidelines. I gave what I calculated as the statutory maximum, 175 years, and an estimate from my experience of the very lightest sentence he could expect, 20 years. Sterling got well below the guidelines and the judge explained why.
James Lewis QC now ran through a couple more cases, and stated that the longest sentence ever given for unlawful disclosure to the media was 63 months – presumably not counting Chelsea Manning. Eric Lewis replied that the specific charges laid in the Assange indictment relate to disclosure to a foreign power, not to the media, and of information helpful to the enemy. Sentences for the counts Assange was charged on were much higher.
James Lewis QC stated that sentencing was by an independent federal judge who had life tenure, to free them from political influence. There was brief to and fro about the circumstances in which a federal judge might be impeached. The judge assigned the Assange case was Claude Hilton, who had been on the bench since 1985. James Lewis QC challenged Eric Lewis as to whether he thought Claude Hilton was fair, and Eric Lewis replied that Hilton had a reputation as a heavy sentencer.
James Lewis QC then asked Eric Lewis whether he accepted that the US Department of Justice had sentencing principles in place which specifically guarded against unnecessarily long prison sentences. Eric Lewis replied that the USA had the highest percentage of its population in jail of any country in the world.
Counsel for the US Government James Lewis QC then stated he would turn to the First Amendment issue.
James Lewis QC You suggest that the First Amendment precludes this prosecution. Eric Lewis Yes, There has never been a prosecution of a publisher under the Espionage Act for publication of classified information. James Lewis QC Are you familiar with the Rosen Case of 2006. This was precisely the same charge as Assange now faces, 793 (g) of the Espionage Act, conspiracy to transmit classified information to those not entitled to receive it. Have you read the case? Eric Lewis Not in a long while, because ultimately it was not proceeded with.
[James Lewis read through lengthy extracts of the Rosen judgement, which I do not have in front of me and was unable to get down verbatim. What follows is therefore gist not transcript].
James Lewis QC In the Rosen case, it is made plain that the receiver, not just the discloser, is liable to prosecution under the Espionage Act. The judge noted that although the Espionage Act of 1917 had been criticised for vagueness, Congress had never felt the need to clarify it. It also noted that much of the alleged vagueness had been resolved in various judicial interpretations. It noted the fourth circuit had rejected a first amendment defence in the case of Morison. Eric Lewis Morison is different. He was a leaker not a publisher. James Lewis QC The Rosen judgement also goes on to state that vagueness does not come into play where there is clear evidence of intent. Eric Lewis When you consider the 100 year old Espionage Act and that there has never been a prosecution of a publisher, then intent… James Lewis QC [interrupting] I want to move on from intent to the First Amendment. There are supreme court judgements that make it clear that at times the government’s interest in national security must override the First Amendment. Eric Lewis In times of imminent danger and relating to immediate and direct damage to the interests of the United States. It is a very high bar. James Lewis QC The Rosen judgement also notes that the New York Times Pentagon Papers case was about injunction not prosecution. “The right to free speech is not absolute”. Eric Lewis Of course. The arguments are well rehearsed. Movement of troop ships in time of war, for example; cases of grave and immediate danger. In the Pentagon Papers Ellsberg was, like Assange, accused of putting named US agents at risk. The bar for overriding the First Amendment is set very high. James Lewis QC [Reading out from a judgement which I think is still the Rosen judgement but it was referred to only by bundle page.] He also notes that serial, continuing disclosure of secrets which harm the national interest cannot be justified. It therefore follows that journalists can be prosecuted. Is that what he says, Mr Lewis? Eric Lewis Yes, but he is wrong. James Lewis QC Do you accept that the Pentagon Papers judgement is the most relevant one? Eric Lewis Yes, but there are others. James Lewis QC A close reading of the Pentagon Papers judgement shows that the New York Times might have been successfully prosecuted. Three of the Supreme Court judges specifically stated that an Espionage Act prosecution could be pursued for publication. Eric Lewis They recognised the possibility of a prosecution. They did not say that it would succeed. James Lewis QC So your analysis that there cannot be a prosecution of a publisher on First Amendment grounds is incorrect.
Eric Lewis gave a lengthy answer to this, but the sound on the videolink had been deteriorating and had in the public gallery become just a series of electronic sounds. The lawyers carried on, so perhaps they could hear, but I know Julian could not because I saw him trying to communicate this to his lawyers through the bulletproof glass screen in front of him. He had difficulty in doing this as he was behind them, and they had their backs to him and eyes fixed on the video screen.
James Lewis QC I challenge you to name one single judgement that states a publisher may never be prosecuted for disclosing classified information?
Eric Lewis gave another long answer that appear to reel off a long list of cases and explain their significance, but again I could hear only a few disjointed words. The sound eventually improved a bit.
Eric Lewis There has been an unbroken line of the practice of non-prosecution of publishers for publishing national defence information. Every single day there are defence, foreign affairs and national security leaks to the press. The press are never prosecuted for publishing them. James Lewis QC The United States Supreme Court has never held that a journalist cannot be prosecuted for publishing national defence information. Eric Lewis The Supreme Court has never been faced with that exact question. Because a case has never been brought. But there are closely related cases which indicate the answer. James Lewis QC Do you accept that a government insider who leaks classified information may be prosecuted? Eric Lewis Yes. James Lewis QC Do you accept that a journalist may not aid such a person to break the law? Eric Lewis No. It is normal journalistic practice to cultivate an official source and encourage them to leak. Seymour Hersh would have to be prosecuted under such an idea. James Lewis QC Do you accept that a journalist may not have unauthorised access to the White House? Eric Lewis Yes.
James Lewis then started to quote a judgement on White House access, then appeared to drop it. He then said he was turning to the question of whether this was a political extradition. James Lewis QC Do you have any qualifications in social science? Eric Lewis I have a degree in Public International Affairs from the Woodrow Wilson School of International Relations. James Lewis QC Have you published any peer reviewed publications? Eric Lewis No. James Lewis QC You opined in another extradition case, that of Dempsey, that it was based upon political opinion. The High Court of England described your evidence as “pure conjecture”. Eric Lewis Yes, that was their view. Dempsey was en route to Syria and approached at an airport by FBI agents. He explained to them that he was going to Syria to work with an anti-Assad group. Nothing was done. But by 2016 policy towards Assad had changed and Dempsey was charged. My evidence was about a change of policy, not political opinions. James Lewis QC Turning to the expert evidence of Prof Feldstein last week, do you agree with his statement that while the Obama administration did not take the decision to prosecute, he did not take the decision not to prosecute. Do you agree? Eric Lewis No. I believe that is predicated on a fundamental misunderstanding of how the Justice Department works. James Lewis QC Do you have first-hand knowledge or sources for your opinion? Eric Lewis No. James Lewis QC So your information is only from newspapers. Eric Lewis And TV interviews and statements. James Lewis QC Statements like those from Matthew Miller who had left the Justice Department two years before he spoke to the Washington Post? Eric Lewis Yes, but he remained close to Attorney General Eric Holder. James Lewis QC Do you agree with Gordon Kromberg that prosecuting decisions are taken in line with federal guidelines that preclude political prosecution? Eric Lewis No. Not under William Barr. The system is now top down political prosecution. James Lewis QC So you claim the guidelines are not followed? Eric Lewis I do. So do the 2,600 former federal prosecutors who called for Barr’s resignation and the 1,000 former prosecutors who protested the Roger Stone commutation. Or Judge Gleeson in his reports on political prosecution decisions. James Lewis QC Do you accuse Gordon Kromberg of bad faith? Eric Lewis I don’t know him. But I do know there is disclosure of heavy political pressure in this case.
There followed some discussion on Trump’s changing relationship with Wikileaks over the years, and also of the Classified Information Protection Act and whether it hampers the defence in disclosure and in taking instruction from the accused. This was to be discussed in greater detail with the next witness.
Edward Fitzgerald then led the witness in re-examination. He asked Eric Lewis to mention the television interviews he had referred to in noting the political change from Obama to Trump. Eric Lewis cited Sarah Sanders saying “we did something” and contrasting this with Obama’s inaction, and Eric Holder stating that they had decided not to prosecute Assange under the Espionage Act as he was not acting for a foreign power.
Edward Fitzgerald then asked about the pressure put on prosecutors in the Eastern District of Virginia to bring the present prosecution. Eric Lewis referred to the article by Adam Goldman in the New York Times to this effect. Ten days after this article the Justice Department stated it was a priority to prosecute Assange.
Lewis explained that William Barr had made explicit that prosecution was subject to political direction. He subscribed to the Unitary Executive Theory and held that all prosecution decisions were by or on behalf of the President. Barr had set this out in a memo that stated directly that prosecutors were “merely the hand” of the Presidency. This was not theory. This was how the Justice Department was now run. Many federal prosecutors had resigned. Many had refused to touch the Assange prosecution. “Mr Kromberg, as is his right, did not.”
Edward Fitzgerald then noted that James Lewis had queried Eric Lewis’s qualifications to comment on prison conditions. Yet for the prosecution, US Assistant Attorney Gordon Kromberg had submitted voluminous comments on prison conditions. Did Mr Kromberg have academic qualifications in penology as required by James Lewis? Eric Lewis replied that he believed not, and certainly he had no doubt he himself had greatly more practical experience of prison conditions than Mr Kromberg. Mr Kromberg’s exposition of official policy was doubtless correct, but it bore no relation to the actual conditions in jails.
On solitary confinement, Edward Fitzgerald outlined the UN’s Mandela rules, under which 22 hours or more in a cell a day and no significant human contact constitute solitary confinement. Lewis replied that the SAM regime would definitely breach the Mandela rules.
The next witness was Mr Thomas Durkin. He is an attorney practising for 47 years, licensed to appear in the Supreme Court. From 1973–8 he was a US Assistant Attorney and since then has been in private practice. He teaches law at Loyola and has received a lifetime achievement award from the Illinois Association of Criminal Lawyers. He also appeared by videolink.
Edward Fitzgerald asked Mr Durkin about the special problems of cases working with classified materials. Durkin said that the biggest problem is that you cannot discuss classified disclosure material with your client. You can only look at the material on a special computer in a secure location – a SCIF – and have to prepare your material there. Mr Assange will not know what his lawyers have learned, and nor will they be able to ask him what the material relates to or signifies. This is an incredibly difficult hardship in taking instructions and preparing a defence.
Edward Fitzgerald asked Mr Durkin if there is a real chance that Julian Assange will receive an effective rest-of-life jail sentence. Durkin replied that this was a very likely possibility. Looking through the counts and the enhancements that might apply, he would rate the offences at 38, 40 or 43 points on the sentencing scale. That would put the range at 235 months to life, and there were multiple counts that could be sentenced consecutively. Durkin said that based on his extensive experience of national security trials, he would expect a sentence of 30 to 40 years. The government position was that Assange was more to blame than Manning. They had asked for 60 years for Chelsea Manning.
Edward Fitzgerald then asked about the effect of the plea bargaining system. Thomas Durkin replied that an early guilty plea reduced the sentencing score by three points. That could make several years difference in sentence. But much more important was the freedom of the prosecution to reduce the counts charged in exchange for a guilty plea. That could make a massive difference – potentially from 100 years plus to ten years, for example. The system greatly reduced freedom of choice and was a massive disincentive to stand trial. People just could not take the risk. A large majority of Durkin’s clients now took a plea deal.
Mr Durkin agreed with a suggestion from Edward Fitzgerald that a condition of a plea deal for Julian Assange was likely to be that he gave up the names of Wikileaks’ sources.
Edward Fitzgerald asked Mr Durkin whether there had been a political decision by the Trump administration to prosecute Assange. Durkin said there were no new criminal justice considerations that had caused the change in approach. This was most likely a political decision.
Edward Fitzgerald asked Durkin about Gordon Kromberg’s assertion that a Grand Jury was a powerful bulwark against a political prosecution. Durkin replied this was simply untrue. A grand jury virtually never refused to authorise a prosecution. In the whole of the USA, there was generally about one refusal every four or five years.
James Lewis then started cross-examination. He asked if Durkin was saying that Assange would not receive a fair trial in the US, or just that it was difficult? Durkin replied that Julian Assange would not get a fair trial in the USA.
Lewis suggested that the requirement to see classified material in a SCIF was merely an inconvenience. Durkin said it was much more than that. You could not discuss material with your client, which materially limited your understanding of it. James Lewis countered that US Assistant Attorney Kromberg’s affidavit stated that Assange would be able to see some classified material himself. A classified facility would be available for him to meet his attorneys. Durkin said he did not accept this description. He had never seen anything like this happen.
Lewis then said Durkin’s statement was that there will be an unprecedented volume of classified material disclosed in this prosecution. But he could not know that. He had no idea what would be disclosed or what the defence would be, if any. Durkin replied that much could be understood from the extensive indictment and from what happened in the Chelsea Manning case. Lewis repeated Durkin did not know what would happen. Assange might plead guilty.
Lewis suggested the plea bargain system was in essence the same in England, where defendants could get one third off sentence for a guilty plea. Durkin said plea bargaining in the US went far beyond that. The government could put a big offer on the table in terms of reductions of charges and counts.
Lewis then went to the question of a change of policy between the Obama and Trump administrations. He established that Durkin relied on media reports for his view on this. Durkin pointed out that the Washington Post report of 25 November 2013 that the Obama administration would not prosecute, had quoted multiple former and then current Justice Department employees and crucially no denial or counter briefing had ever been forthcoming. It had never been contradicted.
That was the end of Tuesday’s hearing. In conclusion I need to correct something I published yesterday, that there were only three journalists in the video gallery to cover the trial. James Doleman led me to another hidden nest of them and there are about ten in total. The main titles are inexcusably unrepresented, but press agencies are, even if their feed is being little used.
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Things became not merely dramatic in the Assange courtroom today, but spiteful and nasty. There were two real issues, the evidence and the procedure. On the evidence, there were stark details of the dreadful regime Assange will face in US jails if extradited. On the procedure, we saw behaviour from the prosecution QC that went well beyond normal cross examination and was a real attempt to denigrate and even humiliate the witness. I hope to prove that to you by a straightforward exposition of what happened today in court, after which I shall add further comment.
Today’s witness was Eric Lewis. A practising US attorney for 35 years, Eric Lewis has a doctorate in law from Yale and a masters in criminology from Cambridge. He is former professor in law at Georgetown University, an elected member of both the American Law Institute and the Council on Foreign Relations and a fellow of the American Bar Foundation. He is Chairman of Reprieve. He has represented high profile clients in national security and terrorism cases, including Seymour Hersh and Guantanamo Bay internees.
Lewis had submitted five statements to the court, between October 2019 and August 2020, addressing the ever-changing indictments and charges brought by the prosecution. He was initially led through the permitted brief half-hour summary of his statements by defence QC Edward Fitzgerald. (I am told I am not currently allowed to publish the defence statements or links to them. I shall try to clarify this tomorrow.)
Eric Lewis testified that no publisher had ever been successfully prosecuted for publishing national security information in the USA. Following the Wikileaks publications including the diplomatic cables and the Iraq and Afghanistan war logs, Assange had not been prosecuted because the First Amendment was considered insuperable and because of the New York Times problem – there was no way just to prosecute Assange without prosecuting the New York Times for publishing the same material. The New York Times had successfully pleaded the First Amendment for its publication of the Pentagon Papers, which had been upheld in a landmark Supreme Court judgement.
Lewis here gave evidence that mirrored that already reported of Prof Feldstein, Trevor Timm and Prof Rogers, so I shall not repeat all of it. He said that credible sources had stated the Obama administration had decided not to prosecute Assange, notably Matthew Miller, a highly respected Justice Department figure who had been close to Attorney General Holder and would have been unlikely to brief the media without Holder’s knowledge and approval.
Eric Lewis then gave testimony on the change of policy towards prosecuting Assange from the Trump administration. Again this mostly mirrored the earlier witnesses. He added detail of Mike Pompeo stating the free speech argument for Wikileaks was “a perversion of what our great country stands for”, and claiming that the First Amendment did not apply to foreigners.
Attorney General Sessions had accordingly stated that it was “a priority for the Justice Department” to arrest Julian Assange. He had pressured prosecutors in the Eastern District of Virginia to bring a case. In December 2017 an arrest warrant had been issued, with the indictment to be filled in later. The first indictment of a single count had been launched in March 2018, its timing possibly dictated by a limitation deadline.
In May 2019 a new superseding indictment increased the counts from one to eighteen, seventeen of which related to espionage. This tougher stance followed the appointment of William Barr as Attorney General just four months previously. The plain intention of the first superseding indictment was to get round the New York Times problem by trying to differentiate Assange’s actions with Manning from those of other journalists. It showed that the Justice Department was very serious and very aggressive in acting on the statements of Trump administration officials. Barr was plainly acting at the behest of Trump. This represented a clear abuse of the criminal enforcement power of the state.
The prosecution of a publisher in this way was unprecedented. Yet the facts were the same in 2018 as they had been in 2012 and 13; there was no new evidence behind the decision to prosecute. Crucially, the affidavits of US Assistant Attorney Gordon Kromberg present no legal basis for the taking of a different decision to that of 2013. There is no explanation of why the dossier was lying around with no action for five or six years.
The Trump administration had in fact taken a different political decision through the Presidential spokesperson Sarah Sanders who had boasted that only this administration had acted against Assange and “taken this process seriously”.
Edward Fitzgerald QC then turned to the question of probable sentencing and led Lewis through his evidence on this point. Eric Lewis confirmed that if Julian Assange were convicted he could very probably spend the rest of his life in prison. The charges had not been pleaded as one count, which it had been open to the prosecution to do. The judge would have discretion to sentence the counts either concurrently or consecutively. Under current sentencing guidelines, Assange’s sentence if convicted could range from “best case” 20 years to a maximum of 175 years. It was disingenuous of Gordon Kromberg to suggest a minimal sentence, given that Chelsea Manning had been sentenced to 35 years and the prosecution had requested 60.
It had been a government choice to charge the alleged offences as espionage. The history of espionage convictions in the USA had generally resulted in whole life sentences. 20 to 30 years had been lighter sentences for espionage. The multiple charges approach of the indictment showed a government intention to obtain a very lengthy sentence. Of course the final decision would lay with the judge, but it would be decades.
Edward Fitzgerald then led on to the question of detention conditions. On the question of remand, Gordon Kromberg had agreed that Julian Assange would be placed in the Alexandria City Jail, and there was a “risk” that he would be held there under Special Administrative Measures. In fact this was a near certainty. Assange faced serious charges related to national security, and had seen millions of items of classified information which the authorities would be concerned he might pass on to other prisoners. He would be subject to Special Administrative Measures both pre- and post-conviction.
After conviction Julian Assange would be held in the supermax prison ADX Florence, Colorado. There were at least four national security prisoners currently there in the H block. Under SAMS Assange would be kept in a small cell for 22 or 23 hours a day and not allowed to meet any other prisoners. He would be allowed out once a day for brief exercise or recreation excluded from other prisoners, but shackled.
Fitzgerald then led Lewis to the 2017 decision by the International Criminal Court to open an investigation into war crimes in Afghanistan, in which the evidence provided by the Wikileaks release of US war logs and diplomatic cables provided essential evidence. This had been denounced by Trump, John Bolton and Pompeo. The ICC prosecutor’s US visa had been cancelled to hinder his investigation. An Executive Order had been issued imposing financial sanctions and blocking the banking access of any non US national who assisted the ICC investigation into crimes alleged against any US citizen. This would affect Julian Assange.
At this point, the half-hour guillotine imposed by Judge Baraitser on defence evidence came down. Fitzgerald pointed out they had not even reached the second superseding indictment yet, but Baraitser said that if the prosecution addressed that in cross examination, then the defence could question on it in re-examination.
James Lewis QC then rose to cross examine Eric Lewis. Yet again, he adopted an extremely aggressive tone. This is perhaps best conveyed as a dialogue.
NB this is not a precise transcript. It would be illegal for me to publish a transcript (of a “public” court hearing; fascinating but true). This is condensed and slightly paraphrased. It is I believe a fair and balanced representation of what happened, but not a verbatim record.
Eric Lewis was appearing by videolink and it should be borne in mind that he was doing so at 5am his time.
James Lewis QC Are you retained as a lawyer by Mr Assange in any way? Eric Lewis No. James Lewis QC Are you being paid for your evidence? Eric Lewis Yes, as an expert witness. At a legal aid rate. James Lewis QC Are you being paid for your appearance in this court? Eric Lewis We haven’t specifically discussed that. I assume so. James Lewis QC How much are you being paid? Eric Lewis £100 per hour, approximately. James Lewis QC How much have you charged in total? Eric Lewis I don’t know, haven’t worked it out yet. James Lewis QC Are you aware of the rules governing expert witnesses? Eric Lewis Yes, I am. I must state my qualifications and my duty is to the court; I have to give an objective and unbiased view. James Lewis QC You are also supposed to set out alternative views. Where have you set out the arguments in Mr Kromberg’s five affidavits? Eric Lewis The court has Mr Kromberg’s affidavits. I address his arguments directly in my statements. Are you saying that I should have repeated his affidavits and all the other evidence in my statements? My statements would have been thousands of pages long. James Lewis QC You are supposed to be unbiased. But you had previously given views that Mr Assange should not be extradited. Eric Lewis Yes, I published an article to that effect. James Lewis QC You also gave an interview to an Australian radio station. Eric Lewis Yes, but both of those were before I was retained as an expert witness in this case. James Lewis QC Does this not create a conflict of interest? Eric Lewis No, I can do an objective analysis setting aside any prejudice. Lawyers are used to such situations. James Lewis QC Why had you not declared these media appearances as an interest? Eric Lewis I did not think perfectly open actions and information needed to be declared. James Lewis QC It would be much better if we were not forced to dig out this information. You give opinions on law. You also give opinions on penal conditions. Are you an expert witness? Eric Lewis I am very familiar with prison conditions. I visit prisons. I studied criminology at Cambridge. I keep up to date with penology. I have taught aspects of it at university. James Lewis QC Are you a qualified penologist? Eric Lewis I think I have explained my qualification. James Lewis QC Can you point us to peer reviewed articles which you have published on prison conditions? Eric Lewis No. James Lewis QC Have you visited ADX Colorado? Eric Lewis No, but I have had a professional relationship with a client in there. James Lewis QC Have you represented anyone in Alexandra Detention Centre? Eric Lewis Yes, one person, Abu Qatada. James Lewis QC So you have no expertise in prisons? Eric Lewis I have visited extensively in prisons and observed prison conditions. I have read widely and in detail on the subject. James Lewis QC Abu Qatada was acquitted of 14 of the 18 charges against him. Was that not acquittal by the same jury pool that would try Julian Assange? Eric Lewis No. That was Colombia, not Eastern Virginia. Very different jury pools. James Lewis QC The prosecutors withdrew capital charges. You said that was a courageous but correct decision? Eric Lewis Yes. James Lewis QC So what was Qatada’s sentence and what was the maximum? Eric Lewis The government asked for life but to my mind that was not legal for the charges on which he was convicted. He got 22 years. That was much criticised as harsh for those charges. James Lewis QC Was the Abu Qatada trial a denial of justice? Eric Lewis No. James Lewis QC Abu Qatada was held under Special Administrative Measures. Did that prevent you from spending many hours with him? Eric Lewis No, but it made it extremely difficult. The many hours were spread out over a long period. That is why remand lasted for three years. James Lewis QC Were your meetings with him monitored? Eric Lewis Yes. James Lewis QC But not by the prosecution. Eric Lewis It was all recorded by the authorities. We were told that nothing would be passed to the prosecution. But from many other reports I am not convinced that is true. James Lewis QC What jury pool was Zacarias Moussaoui convicted by? Eric Lewis He was not convicted by a jury. He pled guilty. James Lewis QC But the jury decided against the death penalty. Eric Lewis Yes. James Lewis QC What about Maria Butina? She was charged with being an agent of the Russian Federation but received a light sentence? Eric Lewis That was a very weird case. She did no more than cultivate some figures in the National Rifle Association. She was sentenced to time served. James Lewis QC But she only got 18 months when the maximum was 20 years? Eric Lewis Yes. It was not a comparable case, and it was a plea deal. James Lewis QC You have addressed prison conditions because the defence argue that Article 3 of the European Convention on Human Rights will be breached. You consider the case of Babar Ahmed. You state that it is “almost certain” that Julian Assange will be subject to administrative segregation. What is the procedure for administrative segregation? Eric Lewis The bureau president will decide depending upon various factors including security risk, threat to national security, threat to other prisoners, seriousness of the charge. My experience is that national security charged prisoners go straight into administrative segregation. James Lewis QC (very aggressive) What are you reading? Eric Lewis Pardon? James Lewis QC You are reading something there. What is it? Eric Lewis It is my witness statement. (Holds it up.) Is that not OK? James Lewis QC That is alright. I thought it was something else. How many categories of administrative detention are there? Eric Lewis I just went through the main ones. National security, serious charge, threat to other prisoners. James Lewis QC You do not know the categories. They are (reels off a long list including national security, serious charge, threat to others, threat to self, medical custody, protective custody and several more). Do you agree there is no solitary confinement in administrative segregation and Special Administrative Measures? Eric Lewis No. James Lewis QC US Assistant Attorney Kromberg states in his affidavit that there is no solitary confinement. Eric Lewis It is solitary confinement other than in the vernacular of the US prison service. James Lewis QC In that case it is also not solitary confinement in the vernacular of the English High Court, which has accepted there is no solitary confinement. Eric Lewis It is solitary confinement. When you are kept in a tiny cell for 23 hours a day and allowed no contact with the rest of the prison population even during the one hour you are allowed out, that is solitary confinement. The attempt to deny it is semantic. James Lewis QC Was Abu Qatada in solitary confinement? When he was permitted unlimited legal visits? Eric Lewis They were not unlimited. In reality there were practical and logistical obstacles. There was a single room that could be used, for the entire prison population. You had to get a booking for that one room. You had to book translation services. The FBI oversaw the visits and listened in. Now with Covid there are no visits at all. Theoretically visits are “unlimited” but in practice you do not get nearly as much time with your client as you need. James Lewis QC You said that he would be held in solitary confinement. But is it not true that even prisoners under SAMs get a break schedule? Eric Lewis There is a break schedule but it requires no other prisoner to be in the communal areas to have contact with the prisoner under SAM. So in practice the “one hour break” would typically be scheduled between 3am and 4am. Not many prisoners wanted to get out of bed at 3am to walk around a cold and empty communal area.
At this point there was a break. James Lewis QC used it forcefully to complain to Baraitser about the four hour limit set on his cross-examination of Eric Lewis. He said that so far he had only got through one and a half pages of his questions, and that Eric Lewis refused to give yes or no answers but instead insisted on giving lengthy explanations. James Lewis QC was plainly extremely needled by Eric Lewis’ explanations of “unlimited visiting time” and “no solitary confinement”. He complained that Baraitser was “failing to control the witness”.
It was plain that James Lewis’s real aim was not to get more time, but to get Baraitser to curtail Eric Lewis’s inconvenient answers. It is of course amazing that he was complaining about four hours, when the defence had been limited to half an hour and had not even been permitted to get to the latest superseding indictment.
Baraitser, to her credit, replied that it was not for her to control the witness, who must be free to give his evidence so long as it was relevant, which it was. It was a question of fairness not of control. James Lewis was asking open or general questions.
James Lewis responded that the witness refused to give binary answers. Therefore his cross examination must be longer than four hours. He became very heated and told Baraitser that never in his entire career had he been subject to a guillotine on cross examination, and that this “would not happen in a real court”. He very definitely said that. “This would not happen in a real court.” I have of course been arguing all along that this is not a genuine process. I did not expect to hear that from James Lewis QC, though I think his intention was just to bully Baraitser, which was confirmed by Lewis going on to state he had never heard of such a guillotine in his capacity of “High Court Judge”. I find that Lewis is listed as “deputy high court judge”, which I think is like being 12th man at cricket, or Gareth Bale.
Baraitser only conceded very slight ground under this onslaught, saying she had never used the word guillotine, that the timings had been agreed between parties, and she expected them to stick to them. James Lewis said it was impossible in that way adequately to represent his client (the US government). He said he felt “stressed”, which for once seemed true, he had gone purple. Baraitser said he should try his best to stick to the four hours. He fumed away (though at a later stage apologised to Baraitser for his “intemperate language”).
James Lewis QC’s touting for business webpage describes him as “the Rolls Royce of advocates”. I suppose that is true, in the sense of foreign owned. Yet here he was before us, blowing a gasket, not getting anywhere, emitting fumes and resembling a particularly unloved Trabant.
Cross-examination of Eric Lewis resumed. James Lewis QC started by reiterating the criteria and categories for Administrative Segregation after conviction (as opposed to pre-trial). Then we got back into questioning.
James Lewis QC Gordon Kromberg states that there is no solitary confinement in ADX Colorado. Eric Lewis Again this is semantic. There is solitary confinement. James Lewis QC But there is an entitlement to participate in three programmes a week. Eric Lewis Not in Special Administrative Measures. James Lewis QC But which of the criteria for Special Administrative Measures might Julian Assange fall into? Eric Lewis Criteria 2, 4 and 5, at least. James Lewis QC Can we agree there is a formal procedure? Eric Lewis Yes, but not worth the name. James Lewis Your opinion is based on one single client in ADX Colorado. Eric Lewis Yes, but the system is essentially the same as other supermaxes. James Lewis At para 14 of your report you state that the system lacks procedural rights, and is tantamount to solitary confinement. Had you read the European Court of Human Rights judgement on Babar Ahmad when you wrote this? Eric Lewis Yes. James Lewis That judgement specifically rejects the same claims you make.
James Lewis QC refers to a number of paragraphs in the original UK District court decision in the case of Babar Ahmad. Eric Lewis asks for more time to find the document as “I only received these documents from the court this morning”.
James Lewis QC But Mr Lewis, you have testified on oath that you had read the Babar Ahmad judgement. Eric Lewis I have read the final judgement of the European Court of Human Rights. I had not read all the judgements from lower courts. I received them from the court this morning. James Lewis QC The senior district judge ruled that although Special Administrative Measures were a concern, they did not preclude extradition. There were various safeguards to SAMs. For example although attorney/client conversations were monitored, that was only for the purpose of preventing terrorism and the FBI did not pass on the recordings to the prosecution. The judge rejected the idea that SAMs amounted to solitary confinement. The High Court upheld the District judge’s ruling and the House of Lords rejected Babar Ahmad’s application to appeal. In its ruling on admissibility of the case, the European Court of Human Rights considered six affidavits from US attorneys very similar to that submitted by Eric Lewis in this case. This included the affirmations that it would be “virtually certain” that Babar Ahmad would be subject to SAMs, and that these would interfere directly with the right to a fair trial, and would constitute cruel and degrading treatment. The ECHR found in relation to pre-trial detention that these allegations were wrong in the Babar Ahmad case. Eric Lewis But that was a terrorism case, not a national security case. SAMs apply differently in national security cases. This is about a million classified documents. Different cases had to be considered each on their merits. James Lewis QC In the Babar Ahmad case, the defence submissions were that the regime was harsh, amounted to solitary confinement nearly 24 hours a day, with one phone call every two weeks and one family visit a month. Is that not almost identical to your evidence here? Eric Lewis Each case must be considered on its merits. There are key differences. Assange is charged with espionage not terrorism, and possession of classified intelligence is a factor. Mental health issues are also different. Under SAMS there is no internet access and no access to any news source. Only approved reading material is allowed. These would be particularly hard for Assange. James Lewis QC But the Babar Ahmad case does specifically deal with mental health issues, between Babar and co-defendants these include clinical depression, suicide risk and Asperger’s. The court agreed that SAM’s would be likely to be applied both before and after trial. But it ruled that the American government had good reasons for imposing SAMs, were entitled to do so, and that there was a clear and non-arbitrary procedure for implementing them.
Eric Lewis replied that he disagreed that would be true in this case. SAM’s could be applied without procedure, by the US Attorney-General, and William Barr would do that in this case, on the basis of statements by Trump and Gina Haspel. In practice, SAMs had never been overturned whatever the claimed procedure. Eric Lewis did not agree they were not arbitrary.
There now followed an episode where James Lewis QC successfully tripped up Eric Lewis by quoting a passage from an Ahmad case judgement and then confusing him as to whether it was from the final ECHR judgement, which Eric Lewis had read, or from an earlier English court judgement or the ECHR prior judgement on admissibility, which he had not.
James Lewis QC So the ECHR viewed the argument that the SAM regime in pre-trial detention breaches Article 3 as ill-founded and inadmissible. Do you agree with the European Court of Human Rights? Eric Lewis They found that in the Babar Ahmad admissibility decision in 2008. New information and evidence and changes to the regime since then might change that view. James Lewis QC What are the defence issues that Assange will raise that you say makes proper consultation under the SAM regime impossible? Eric Lewis Well I don’t know the precise details of what his defence will be but… James Lewis QC [interrupting] Well how can you possibly know what the issues will be if you do not know the case? Eric Lewis Because I have read the indictment. The issues are very wide ranging indeed and involve national security documents. James Lewis QC But you don’t know what defence at all will be put forward, so how can you opine? Eric Lewis The charges themselves give a fair idea what might be covered. James Lewis QC Turning to the Babar Ahmad final judgement on post-trial incarceration at ADX Colorado. Have you read this (sarcastic emphasis) judgement? Of 210,307 federal prisoners, only 41 of these had SAMs. 27 were in ADX Colorado. Eric Lewis The Warden of ADX Colorado himself had stated that it was “not fit for humanity” and “a fate worse than death”. James Lewis QC The ECHR said that SAMS was subject to oversight by independent authorities who looked after the interests of prisoners and could intervene. Eric Lewis Since that ECHR judgement, a new US judgement had stated that prisoners have no Fifth Amendment right to appeal against the conditions of their incarceration. James Lewis QC The ECHR found that the US prison authorities took cognisance of a prisoner’s mental state in relation to SAM measures. Eric Lewis Things have also moved on there since 2012. He referenced details from his written evidence. James Lewis QC The ECHR also found that “the isolation experienced by ADX inmates is partial and relative. The court notes that their psychiatric conditions have not prevented their high security detention in the United Kingdom.” Do you accept that in 2012 the ECHR made a thorough finding? Eric Lewis Yes, on the basis of what they knew in 2012, but much more information is now available. And there are specific reasons to doubt Mr William Barr’s impartiality. James Lewis QC You say that Mr Assange will not receive adequate healthcare in a US prison. Are you a medical expert? Eric Lewis No. James Lewis QC Do you hold any medical qualification? Eric Lewis No. James Lewis QC What published statement gives the policy of the Bureau of Prisons on Mental Health? Eric Lewis I was relying on the published statement of the US Inspector of Prisons and the study by Yale Law School of mental health in US prisons. The US Bureau of Prisons states that 48% of prisoners have serious mental health problems but only 3% receive any treatment. The provision for mental healthcare in jails has been cut every year for a decade. Suicides in jail are increasing by 18% a year. James Lewis QC Have you read “The Treatment and Care of Prisoners with Mental Illness” by the US Department of Health? Eric Lewis Yes. James Lewis QC You purport to be an expert. Without looking it up what year was it published? You don’t know, do you? Eric Lewis Could you be courteous. I have been courteous to you. Can you refer me to a relevant question? James Lewis QC The policy has had eight changes since 2014. Can you list them? Eric Lewis I am trying to testify on my experience and my knowledge in dealing with these questions on behalf of the many clients I have represented. If you are asking me am I a prison psychiatrist, I am not. James Lewis QC Do you know the specific changes made since 2014 or not? Eric Lewis I know that there were new regulations stipulating 1 mental health professional for every 500 inmates and guidelines for an increase in accessibility, but I also know those have not in fact been implemented due to lack of resources. James Lewis QC (smirking) How many levels of psychiatric assessment are there? What is level number three? What are you reading? You are reading! What are you reading! What are you reading! [Yes, this is not a mistake. He did pull this stunt again.] Eric Lewis I am looking at my own witness statement (shows it to camera). James Lewis QC You are not a genuine expert witness – you have no expertise in these matters. As you are being paid to give evidence and are not an expert, that is something the court will have to take account in deciding what weight, if any at all, to give to your evidence.
Before Eric Lewis could respond, the video link broke down, rather bizarrely broadcasting a news item about Donald Trump attacking Julian Assange. It could not be restored all day, so that was the end of proceedings, for which my note taking hand was not ungrateful. The link could be restored in the adjacent courtroom, which indicates the problem was very local. The judge considered changing courts but it was considered too difficult to move everyone and the great mounds of files and equipment. This hearing has frequently been interrupted by the strange incompetence of the Ministry of Justice in establishing simple videolinks.
James Lewis QC’s conduct was very strange. It really is not normal courtroom behaviour. Were there a jury, they would completely have written him off by now as rude and obnoxious, and even Baraitser finally seems to have found her limit of being pushed around by the prosecution. Eric Lewis is obviously a very distinguished man and a lawyer with immense experience of the US system. Trying to claim he has no expertise because he is not a psychiatrist or an academic in penology is no more than a shoddy trick, performed in a manner designed to humiliate.
The asking for the precise title of one particular Department of Health Pamphlet or for a specific point in it, as though that were a way of invalidating all that Eric Lewis knows, is so transparently invalid as a test of worth that I am astonished Baraitser let James Lewis pursue it, let alone the histrionic accusations about “reading”. This was really hard to sit through silently for me; goodness knows what it was like for Julian.
The mainstream media are turning a blind eye. There were three reporters in the press gallery, one of them an intern and one representing the NUJ. Public access continues to be restricted and major NGOs, including Amnesty, PEN and Reporters Without Borders, continue to be excluded both physically and from watching online. It has taken me literally all night to write this up – it is now 8.54am – and I have to finish off and get back into court. The six of us allowed in the public gallery, incidentally, have to climb 132 steps to get there, several times a day. As you know, I have a very dodgy ticker; I am with Julian’s dad John who is 78; and another of us has a pacemaker.
I do not in the least discount the gallant efforts of others when I explain that I feel obliged to write this up, and in this detail, because otherwise the vital basic facts of the most important trial this century, and how it is being conducted, would pass almost completely unknown to the public. If it were a genuine process, they would want people to see it, not completely minimise attendance both physically and online.
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As I wrote 11 months ago, Raab and Johnson sought legal advice on breaking the Withdrawal Agreement even before signing it, in a truly shocking example of bad faith negotiation. If mainstream journalists did the slightest actual journalism, they would have realised this was always Johnson’s plan.
As I wrote on October 15 2019, while the Withdrawal Agreement was being negotiated with the EU:
There is currently considerable alarm in the FCO that Legal Advisers have been asked about the circumstances constituting force majeure which would justify the UK in breaking a EU Withdrawal Agreement in the future. The EU did not fall for Johnson’s idea that a form of Northern Irish “backstop” would only come into effect with the future sanction of Stormont, as this effectively gives a hardline unionist veto, and Barnier was not born yesterday. The situation that Johnson and Raab appear now to contemplate is agreeing a “backstop” now to get Brexit done, but then not implementing the agreed backstop when the time comes due to “force majeure”.
There are two major problems with this line of thinking. The first is that it will give unionists an incentive to foment disorder in order to justify breaking the backstop agreement – indeed there is a concern that might be the tacit understanding Johnson is reaching with the DUP. Remember the British state conspired with the same people to murder the lawyer Pat Finucane and destroyed the evidence as recently as 2002.
The second problem is one of bad faith negotiation, and this is what is troubling the diplomats of the FCO. To negotiate an agreement with the secret intention of breaking it in future is a grossly immoral proceeding, and undermines the whole principle of good international relations. I should like to be able to say that I am sure this cannot be the intention. But when I look at Johnson, Raab and Cummings, I am really not so sure at all. It is possible that Johnson will succeed in the apparently insurmountable challenge of securing a deal all parties can agree, by the simple strategy of promising some parties he has no intention of honouring it.
For Johnson, the Withdrawal Agreement provisions on Northern Ireland were only ever a device to get him over an immediate political difficulty. The fact he simply lied throughout the election campaign that the Withdrawal Agreement imposed no new checks or paperwork between Northern Ireland and the rest of the UK, should have made plain he was not serious about it. He had simply lied to the countries of the EU in signing a treaty he never had an intention to honour. He simply does not see himself as bound by any notion of honour or honesty.
The UK is acting grossly illegally in continuing to occupy the Chagos Islands against the firm direction of the International Court of Justice and the UN General Assembly. It is a rogue state. It is led by a man whose word cannot be trusted even when he signs a treaty. Other states do notice this kind of thing. Whether you are in favour of Brexit or against it, nobody can sensibly suggest this kind of gross insult to the European Union is a sensible way to start a future relationship.
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The great question after yesterday’s hearing was whether prosecution counsel James Lewis QC would continue to charge at defence witnesses like a deranged berserker (spoiler – he would), and more importantly, why?
QC’s representing governments usually seek to radiate calm control, and treat defence arguments as almost beneath their notice, certainly as no conceivable threat to the majestic thinking of the state. Lewis instead resembled a starving terrier kept away from a prime sausage by a steel fence whose manufacture and appearance was far beyond his comprehension.
Perhaps he has toothache.
PROFESSOR PAUL ROGERS
The first defence witness this morning was Professor Paul Rogers, Emeritus Professor of Peace Studies at the University of Bradford. He has written 9 books on the War on Terror, and has been for 15 years responsible for MOD contracts on training of armed forces in law and ethics of conflict. Rogers appeared by videolink from Bradford.
Edward Fitzgerald QC asked Prof Rogers whether Julian Assange’s views are political (this goes to article 4 in the UK/US extradition treaty against political extradition). Prof Rogers replied that “Assange is very clearly a person of strong political opinions.”
Fitzgerald then asked Prof Rogers to expound on the significance of the revelations from Chelsea Manning on Afghanistan. Prof Rogers responded that in 2001 there had been a very strong commitment in the United States to going to war in Afghanistan and Iraq. Easy initial military victories led to a feeling the nation had “got back on track”. George W Bush’s first state of the union address had the atmosphere of a victory rally. But Wikileaks’ revelations in the leaked war logs reinforced the view of some analysts that this was not a true picture, that the war in Afghanistan had gone wrong from the start. It contradicted the government line that Afghanistan was a success. Similarly the Wikileaks evidence published in 2011 had confirmed very strongly that the Iraq War had gone badly wrong, when the US official narrative had been one of success.
Wikileaks had for example proven from the war logs that there were a minimum of 15,000 more civilian deaths than had been reckoned by Iraq Body Count. These Wikileaks exposures of the failures of these wars had contributed in large part to a much greater subsequent reluctance of western powers to go to war at an early stage.
Fitzgerald said that para 8 of Rogers’ report suggests that Assange was motivated by his political views and referenced his speech to the United Nations. Was his intention to influence political actions by the USA?
Rogers replied yes. Assange had stated that he was not against the USA and there were good people in the USA who held differing views. He plainly hoped to influence US policy. Rogers also referenced the statement by Mairead Maguire in nominating Julian for the Nobel Peace Prize:
Julian Assange and his colleagues in Wikileaks have shown on numerous occasions that they are one of the last outlets of true democracy and their work for our freedom and speech. Their work for true peace by making public our governments’ actions at home and abroad has enlightened us to their atrocities carried out in the name of so-called democracy around the world.
Rogers stated that Assange had a clear and coherent political philosophy. He had set it out in particular in the campaign of the Wikileaks Party for a Senate seat in Australia. It was based on human rights and a belief in transparency and accountability of organisations. It was essentially libertarian in nature. It embraced not just government transparency, but also transparency in corporations, trade unions and NGOs. It amounted to a very clear political philosophy. Assange adopted a clear political stance that did not align with conventional party politics but incorporated coherent beliefs that had attracted growing support in recent years.
Fitzgerald asked how this related to the Trump administration. Rogers said that Trump was a threat to Wikileaks because he comes from a position of quite extreme hostility to transparency and accountability in his administration. Fitzgerald suggested the incoming Trump administration had demonstrated this hostility to Assange and desire to prosecute. Rogers replied that yes, the hostility had been evidenced in a series of statements right across the senior members of the Trump administration. It was motivated by Trump’s characterisation of any adverse information as “fake news”.
Fitzgerald asked whether the motivation for the current prosecution was criminal or political? Rogers replied “the latter”. This was a part of the atypical behaviour of the Trump administration; it prosecutes on political motivation. They see openness as a particular threat to this administration. This also related to Trump’s obsessive dislike of his predecessor. His administration would prosecute Assange precisely because Obama did not prosecute Assange. Also the incoming Trump administration had been extremely annoyed by the commutation of Chelsea Manning’s sentence, a decision they had no power to revoke. For that the prosecution of Assange could be vicarious revenge.
Several senior administration members had advocated extremely long jail sentences for Assange and some had even mooted the death penalty, although Rogers realised that was technically impossible through this process.
Fitzgerald asked whether Assange’s political opinions were of a type protected by the Refugee Convention. Rogers replied yes. Persecution for political opinion is a solid reason to ask for refugee status. Assange’s actions are motivated by his political stance. Finally Fitzgerald then asked whether Rogers saw political significance in the fact that Assange was not prosecuted under Obama. Rogers replied yes, he did. This case is plainly affected by fundamental political motivation emanating from Trump himself.
James Lewis QC then rose to cross-examine for the prosecution. His first question was “what is a political opinion?” Rogers replied that a political opinion takes a particular stance on the political process and does so openly. It relates to the governance of communities, from nations down to smaller units.
Lewis suggested that Assange’s views encompassed the governance of corporations, NGOs and trade unions. They could not therefore be considered as “political opinion”. Rogers replied that the province of the political in the last fifty years or so now includes much more beyond the strict governmental process. Assange particularly discusses relationships between government and corporations and the latter’s influence on government and society as part of a wider ruling establishment.
Lewis then asked “is simply being a journalist a person who expresses political opinions?” Rogers replied not necessarily; there were different kinds of journalist. Lewis than asked “So just being a journalist or publisher does not necessarily mean that you have political opinions, does it?” Rogers replied “not necessarily, but usually.” Lewis then suggested that the expression of editorial opinion was what constituted a political view in a journalist. Rogers replied that was one way, but there were others. Selection of material to publish could manifest a political view.
Lewis then rattled off a series of questions. Is transparency a political opinion? Does Assange hold the view that Governments may never hold secrets? Should that transparency enable putting individuals at risk? There were more.
Rogers replied that these questions did not permit of binary answers.
Lewis then took Rogers to Assange’s speech to the Stop the War Coalition, where he stated that the invasion of Poland at the start of the Second World War was the result of carefully concocted lies. Did Prof Rogers agree with that view? What political opinion did that view represent? Rogers replied it represented a strong political opinion and a particular view on the origin of war. Lewis then quoted another alleged comment of Assange, “Journalists are war criminals” and asked what political opinion that represented. Rogers replied that it represented a suspicion of certain journalistic practices.
Rogers said that he had never said he supported or identified with Assange’s views. He strongly disagreed with some. But that they were coherent political views there was no doubt.
Lewis then read out a lengthy quote by Assange to the effect that strongly anti-transparency governments will always result in more leaks, followed by more restrictions and this would set up a cycle. Lewis asked Rogers what political view this could be said to represent. Rogers replied it was an interesting analysis of the working of highly autocratic systems. Their concern with secrecy leads to increased leaks which decrease their security. He was not sure if it was explicit, but he believed Assange may be positing this as a new development made possible by the internet. Assange’s thesis was that autocratic regimes harbour the seeds of their own destruction. It was not a traditional view held by political scientists but it was worth consideration.
Lewis now changed tack. He stated that Prof Rogers was appearing as a “so-called expert witness” under a continuing obligation to be unbiased. He had a duty to consider all supporting evidence. US Assistant Attorney Gordon Kromberg had submitted an affidavit explicitly denying there was any political motivation for the prosecution, stating that it is evidence based. Why did Prof Rogers not mention the Kromberg statement in his report? An unbiased expert witness would take into account Kromberg’s statement.
Rogers replied that he spoke from his expertise as a political scientist, not a lawyer. He accepted that Kromberg had made his statement but believed a wider view to be more important.
Lewis stated that Kromberg’s first affidavit stated that “based on the available evidence and applicable law a grand jury had approved the charges.” Why had Rogers not mentioned the grand jury? Rogers said that he had taken a wider view about why there was a decision now to prosecute and not in 2011, why Kromberg’s statement was being made now after a gap of eight years. This was anomalous.
Lewis then asked “I want to consider why you did not consider the opposite view. Have you seen the evidence?” At this point he was grinning very strangely indeed, looking up at the judge, leaning back with one arm wide across his chair back, in some sort of peculiar alpha male gesture. I believe Rogers’ videolink only gave him a wide view of the whole courtroom, so how much he could see of the body language of his questioner I am unsure.
Rogers said he had seen the evidence. Lewis gurned in wild-eyed triumph “you cannot have seen the evidence. The evidence has only been seen by the grand jury and not released. You cannot have seen the evidence.” Rogers apologised, and said he had understood Lewis to mean Kromberg’s affidavit as the evidence. Rogers went on to say that less than 24 hours ago he had received an evidence bundle of 350 pages. It was unfair to expect him to have a precise mental picture of every document.
Lewis then returned to a Gordon Kromberg affidavit which said that prosecutors have a code which bars them from taking politically motivated decisions. Rogers replied that may be right in theory, but was untrue in practice, particularly in the USA where a much higher percentage of senior officials in the Department of Justice were political appointees who changed with each administration. Lewis asked Rogers whether he was alleging the prosecutors did not follow the code outlined by Kromberg. Rogers replied you had to consider the motivation of those above the prosecutors who influenced their decisions. “What you are giving me is a fair representation of how federal prosecutors are supposed to do their work. But they work as those above direct them.”
Lewis repeated that the code excludes political motivation for prosecution. Was Rogers claiming that Gordon Kromberg was acting in bad faith? Rogers replied no, but he was acting under political direction. The timing of this indictment after eight years was the key. Lewis asked whether that mattered if a crime had been committed. He referred to historic prosecutions of those soldiers who had allegedly committed crimes in Northern Ireland over twenty years ago. Was it political motivation that led to new prosecutions now? Rogers said this was more about bad faith.
Lewis asked if Rogers understood what Assange was being prosecuted for. Was he being prosecuted for publishing the collateral murder video? Rogers replied no, the charges were more specific and mostly related to the Espionage Act. Lewis stated the majority of charges were focused on complicity in theft and on hacking. Rogers responded there was obviously a wider political question as to why acts were being done in the first place. Lewis stated that on the question of publication, charges only related to the unredacted names of sources. Rogers said that he understood that was what the prosecution is saying, but was not agreed by the defence. But the question remained, why is this being brought now? And you could only look at that from the point of view of developments in American politics over the last twenty years.
Lewis asked Rogers to confirm that he was not saying US prosecutors were acting in bad faith. Rogers replied that he would hope not, at that level. Lewis asked if Rogers’ position was that at a higher level there had been a political decision to prosecute. Rogers said yes. These were complex matters. It was governed by political developments in the US since about 1997. He wished to speak to that… Lewis cut him off and said he preferred to look at evidence. He cited a Washington Post article from 2013 which stated that there had been no formal decision not to prosecute Assange by the Obama administration (this was the same article Lewis had quoted yesterday to Feldstein, on which he had been called out by Edward Fitzgerald for selective quotation). Rogers replied yes, but that must be considered in a wider context.
Lewis again refused to let Rogers develop his evidence, and gave the quotes from Assange’s legal team, again as given yesterday to Feldstein, to the effect they had in 2016 not been informed charges had been dropped. Rogers replied that was just what you would expect from Wikileaks at that time. They did not know and were bound to be cautious.
Lewis: Do you accept there had been a continuing investigation from Obama to Trump administrations.
Rogers: Yes, but we do not know at what level of intensity.
Lewis: Do you accept that there was no decision not to prosecute by Obama
Rogers: There was no decision to prosecute. It did not happen.
Lewis: How could they prosecute when Assange was in the Embassy?
Rogers: That would not preclude a prosecution going ahead and charges being brought. That might be a way to bring pressure on Ecuador.
Lewis: Assange’s lawyer said there was no decision not to prosecute by the Obama administration.
Rogers: I have accepted there was no decision not to prosecute. But there was no prosecution and it was considered.
Lewis: Judge Mehta said there was ongoing investigation of others beside Manning. And Wikileaks tweeted Assange’s willingness to come to the USA to face charges if Manning was granted clemency.
Rogers: Obviously Assange and his lawyer could not be sure of the situation. But it must be understood that bringing Julian Assange to the USA for a major trial of someone who was perceived by many Trump supporters and potential Trump supporters as an enemy of the state, might be of crucial political benefit to Mr Trump.
Lewis now responded that Rogers was not a real expert witness and “had given a biased opinion in favour of Julian Assange”.
Edward Fitzgerald QC then re-examined Prof Rogers for the defence. He said that Mr Lewis had appeared to see something sinister in Mr Assange’s statement that the invasion of Poland and second world war had been started by lies. To what lies did Prof Rogers think that Assange was referring? Rogers replied the lies of the Nazi Regime. Fitzgerald asked if this was a fair point. Rogers replied yes.
Fitzgerald read the context of Assange’s statement which also referred to lies starting the Iraq war. Rogers agreed that lies leading to war was a consistent Assange political theme. Fitzgerald then invited Rogers briefly to summarise the consequences of the change of US administration. Rogers stated that under Trump, the narrative from senior politicians on Wikileaks had changed.
The Bush administration had viewed the Iraq war as essential, with the support of most American people. That view had gradually changed until Obama had won basically on a “withdraw from Iraq” ticket. Similarly the Afghan war had been thought winnable but gradually the political establishment changed their mind. This shift in view was partly due to Wikileaks. By 2015/6 American politics had moved on from the wars and there was no political interest in prosecuting Wikileaks.
Then Trump came in with a completely new attitude to the entire fourth estate and to openness and accountability of the executive. That had led to this prosecution. Fitzgerald directed Rogers to a Washington Post article which stated:
The previously undisclosed disagreement inside the Justice Department underscores the fraught, high-stakes nature of the government’s years-long effort to counter Assange, an Internet-age publisher who has repeatedly declared his hostility to U.S. foreign policy and military operations. The Assange case also illustrates how the Trump administration is willing to go further than its predecessors in pursuit of leakers — and those who publish official secrets.
Rogers agreed this supported his position. Fitzgerald then asked about Lewis’s comparison with prosecution of British soldiers for historical crimes in Northern Ireland. Rogers agreed that their prosecution in no way related to their political opinions, so the cases were not comparable. Rogers’ final point was that four months after Barr took office as attorney general, charges were increased from a single one to eighteen. This was a pretty clear indication of political pressure being put on the prosecutorial system.
TREVOR TIMM
The afternoon witness was Trevor Timm, co-founder of the Freedom of the Press Association in San Francisco, again via videolink. You can see his full evidence statement here. The Freedom of the Press Association teaches and supports investigative journalism and seeks to document and counter violations of media freedom in the USA.
Mr Timm testified that there is a rich history in the USA of famous reporters covering defence and foreign affairs related matters drawing upon classified documents. In 1971 the Supreme Court had decided the government could not censor the NYT from publishing the Pentagon Papers. There have been several instances over history where the government had explored using the Espionage Act to prosecute journalists but no prosecution had ever materialised because of First Amendment constitutional rights.
For the defence, Mark Summers QC put to Mr Timms that this was the prosecution’s case: Chelsea Manning had committed a crime in whistleblowing. So any act that helped Chelsea Manning or solicited material was also a crime. Timm replied this was not the law. It was standard practice for journalists to ask sources for classified material. The implications of this prosecution would criminalise any journalist in receipt of classified intelligence. Virtually every single newspaper in the United States had criticised this decision to prosecute on these grounds, including those that have opposed Wikileaks’ general activities.
This was the only attempt to use the Espionage Act against a person not in government employ apart from the AIPAC case, which had collapsed for that reason. Many great journalists would have been caught by this kind of prosecution, including Woodward and Bernstein for the cultivation of Deep Throat.
Summers asked about the prosecution’s characterisation of the provision of a drop box by Wikileaks to a whistleblower as criminal conspiracy. Timm replied that the indictment treats possession of a secure drop box as a criminal offence. But the Guardian, Washington Post, New York Times and over 80 other news organisations have secure drop boxes. The International Committee of Investigative Journalists has a drop box with a specific “leak to us” page requesting classified documents. Timms’ own foundation had developed in 2014 a secure drop box which they taught, and which had been adopted by multiple news organisations in the USA.
Summers asked if news organisations advertised drop boxes. Timm replied yes. The New York Times links to its secure drop box in its social media posts. Some even took out paid adverts for whistleblowers. Summers asked about the “most wanted list” which the prosecution characterised as criminal solicitation. Timm replied that multiple respectable news organisations actively solicited whistleblowers. The “most wanted” list had been a Wiki document which had been crowdsourced. It was not a Wikileaks document. His own foundation had contributed to it along with many other media organisations. Summers asked if this was criminal activity. Timm replied in the negative.
Summers asked Timm to expound his thoughts on the Senate Intelligence Committee Report on Torture in 2014. Timm said that this vital and damning report on CIA involvement in torture had been much redacted and was based on thousands of classified documents not made available to the public. Virtually the entire media had therefore been involved in trying to obtain the classified material that revealed more of the story. Much of this material was classified Top Secret – higher than the Manning material. Many newspapers appealed for whistleblowers to come forward with documents and he had himself published an appeal to that effect in the Guardian.
Summers asked if it had ever been suggested to Timm this was criminal behaviour. Timm replied no, the universal belief had been that it was first amendment protected free speech. The current indictment is unconstitutional.
James Lewis QC then cross-examined for the prosecution. He said this was claimed to be expert opinion, but did Timm know what that meant in UK law? Timm said he had an obligation to explain his qualification and to tell the truth. Lewis replied that he was also supposed to be objective, unbiased and have no conflict of interest. But the Free Press Foundation had contribute to Assange’s defence fund. Lewis asked how much? Timm replied US$100,000.
Lewis asked if there were any conditions under which the Foundation would get their money back. Timm replied no, not to his knowledge. Lewis asked whether Timm would feel personally threatened were this case to go to prosecution. Timm replied that would represent a threat to many thousands of journalists. The Espionage Act was so widely drafted it would even pose a threat to purchasers and readers of newspapers containing leaked information.
Lewis said that Timm had testified that he had written advocating a leaking of CIA material. Did he fear he would be prosecuted himself? Timm replied no, he had not asked for material to be leaked to himself. But this prosecution was a real threat to thousands of journalists represented by his organisation.
Lewis said that the prosecution position is that Assange is not a journalist. Timm replied that he is a journalist. Being a journalist does not mean working for the mainstream media. There was a long legal history of that going back to pamphleteers at the time of Independence.
This cross examination was not going so well, and Lewis reached yet again for Gordon Kromberg’s affidavit as for a comfort blanket. Kromberg had sworn that the Department of Justice takes seriously the protection of journalists and that Julian Assange is no journalist. Kromberg had further sworn that Julian Assange was only being prosecuted for conspiring to illegally obtain material, and for publishing unredacted names of informants who would be at risk of death. The government is going out of its way to stress it is not prosecuting journalism.
Timm replied that he based his opinion on what the indictment said, not on the Department of Justice press release from which Lewis had read. Three of these charges relate to publication. The other charges relate to possession of material. Lewis said that Timm was missing the hacking allegation which was central to Count 1 and several other counts. Lewis quoted an article in the Law Review of New York Law School, which said that it was illegal for a journalist to obtain material from the wreckage of a crashed airplane, from an illegal wiretap or from theft, even if the purpose were publication. Would it not be illegal to conspire with a source to commit hacking?
Timm replied that in this case the allegation appeared to be that the hacking was to protect the identity of the source, not to steal documents. Protection of sources was an obligation.
Lewis then asked Timm if he had seen the actual evidence that supports the indictment. Timm replied only some of it, in particular the Jabber script of the messages allegedly between Assange and Manning. Lewis said Timm could not have seen all the evidence as it had not been published. Timm replied he had not said he had seen it all. He had seen the alleged Assange/Manning messages which had been published.
Lewis said that Assange had published unredacted material which put lives in danger. That was the specific charge. Timm replied that, assuming the assertion was true, the prosecution was still unconstitutional. There was a difference between responsible and irresponsible, and legal and illegal. An act could be irresponsible, even blameworthy, and still not illegal.
There had never been a prosecution for publication of names of informants, even where they were allegedly put in harm’s way. Following the official line about harm to informants precisely due to Wikileaks’ publication of the cables, Senator Joe Liebermann had introduced the Shield Bill into Congress. It failed specifically on First Amendment grounds. The episode tells us two things; firstly that Congress considered publication of informants’ names was not illegal and secondly that neither did they wish to make it illegal.
Lewis quoted a Guardian editorial condemning the publication of names, and stated that the Washington Post, New York Times, El Pais and Der Spiegel among many others had condemned it too. Timm replied that still did not make it illegal. The US government ought not to be the arbiter of whether an editorial decision is correct or not. Timm also felt it worth noting in passing that all of those media outlets whose opinions Lewis held in such high regard, had condemned the current attempt at prosecution.
Lewis asked why we should prefer Timm’s opinion to that of the courts. Timm replied that his opinion was in line with the courts. Countless decisions over centuries upheld the First Amendment. It was the indictment which was out of tune with the courts. The Supreme Court had expressly stated that there was no balance of harm argument in First Amendment cases.
Lewis asked Timm what qualification he had to comment on legal matters. Timm replied he had graduated from Law School and had gained admission to the New York Bar, but rather than practice he had worked on academic analysis of media freedom cases. The Foundation often joined in with litigation in support of media freedom, on an amicus basis.
Lewis said (in a tone of disbelief) that Timm had stated this prosecution was part of “Trump’s war on journalism”. Timm cut in niftily. Yes, he explained, we keep track on Trump’s war on journalism. He has sent out over 2,200 tweets attacking journalists. He has called journalists “enemies of the people”. There is a great deal of available material on this.
Lewis asked why Timm had failed to note that US Assistant Attorney Gordon Kromberg had specifically denied that there was a war on journalists? Timm said he had addressed these arguments in his evidence, though without specifically referencing Kromberg. Lewis stated that Timm had also not addressed Kromberg’s assertion that Assange is not charged simply with receipt of classified material. Timm replied that is because Kromberg’s assertion is inaccurate. Assange is indeed charged with offences encompassing passive receipt. If you get to count 7, for example and look at the legislation it charges under, it does precisely criminalise passive receipt and possession.
Lewis asked why Timm had omitted Kromberg’s reference to the grand jury decision? Timm replied that it meant very little: 99.9% of grand juries agree to return a prosecution. An academic study of 152,000 grand juries had revealed only 11 which had refused the request of a federal prosecutor to prosecute.
Lewis asked Timm why he had failed to mention that Kromberg asserted that a federal prosecutor may not take political considerations into account. Timm replied that did not reflect reality. Prosecution was one prong of many in President Trump’s war on journalism. Lewis asked whether Timm was saying that Kromberg and his colleagues were acting in bad faith. Timm replied no, but there had been a story in the Washington Post that more senior federal prosecutors had been opposed to the prosecution as contrary to the First Amendment and thus unconstitutional.
Mark Summers then re-examined for the defence. He said that Kromberg presents two grounds for Assange not being a journalist. The first is that he conspired with Manning to obtain confidential material. Timm replied that this cultivating of a source was routine journalistic activity. The indictment is precluded by the First Amendment. The Supreme Court has ruled that even if a journalist knows that material is stolen (but not by him), he may still publish with entitlement to First Amendment protection.
Summers asked Timm about Lewis’s comparison of Assange’s contact with Manning to theft from an airplane wreck or illegal wiretap. Timm said this alleged offence did not reach that bar. The government does not allege that Assange himself helped Manning to steal the material. It alleges he provided help to crack a code that enabled Manning better to protect his identity.
Lewis here interrupted with a lengthy quote from one of Kromberg’s affidavits, to the effect that the government was now alleging that Assange helped Manning hack a password in order to facilitate obtaining classified information. Timm said yet again Kromberg’s affidavit did not appear to match the actual indictment. The claim there is that the password hacking “may have made it more difficult to identify Manning”. It is about source protection, not theft. Source protection is normal journalistic activity.
Summers stated that Kromberg’s second justification for stating that Assange is not a journalist was that he published the names of sources. Timm replied that he understood these facts were disputed, but in any event the Supreme Court had made plain such publication still enjoyed First Amendment protection. Controversial editorial choice did not render you “not a journalist”.
Summers asked Timm if he accepted Kromberg’s characterisation that Assange was only being prosecuted for alleged hacking and for publication of names. Timm said he did not. Counts 16, 17 and 18 were for publishing. All the other counts related to possession. Count 7 for example was for “knowingly unlawful receiving and obtaining”. That described passive receipt of classified information and would criminalise much legitimate journalistic activity. Huge swathes of defence, national security and foreign affairs reporting would be criminalised.
COMMENT
The defence have been attempting the last two days to make a rational case that this is a politically motivated prosecution and therefore not eligible under the terms of the UK/US extradition treaty of 2007 (relevant extract pictured above).
In opening argument back in February, the prosecution had run a frankly farcical argument that Article 4 of the treaty does not apply as incompatible with UK law, and an esto argument that Assange’s activity is not political as in law that word can only mean support for a particular party. Hence Lewis’s sparring on that point with Prof Rogers today, in which Lewis was well out of his depth.
Lewis primary tactic has been rudeness and aggression to disconcert witnesses. He questions their honesty, fairness, independence and qualifications. Today his bullying tactics ran foul of two classier performers than he. That is no criticism of Professor Feldstein yesterday, whose quiet dignity and concern was effective in a different way in exposing Lewis as a boor.
Lewis’s remaining tactic is to fall back repeatedly on the affidavits of Gordon Kromberg, US Assistant Attorney, and his statements that the prosecution is not politically motivated, and on Kromberg’s characterisation of the extent of the charges, which everybody else but Lewis and Kromberg finds inconsistent with the superseding indictment itself.
Witnesses understandably back away from Lewis’s challenge to call Kromberg a liar, or even to question his good faith. Lewis’s plan is very plainly to declare at the end that every witness accepted Kromberg’s good faith and therefore this is a fair prosecution and the defence have no case.
Perhaps I can assist. I do not accept Kromberg’s good faith. I have no hesitation in calling Kromberg a liar.
When the best thing your most supportive colleague can say about you, is that out-and-out Islamophobes do enjoy temporary popularity in the immediate aftermath of a terror attack, then there is a real problem. There is a real problem with Gordon Kromberg, and Lewis may very well come to regret resting the weight of the credibility of his entire case upon such a shoogly peg.
Kromberg has a repeated history of Islamophobic remarks, including about Muslim women. As the Wall Street Journal reported on September 15th 2008,
“Kromberg has taken a lot of heat recently for comments made and tactics taken in terrorism prosecutions”… said Andrew McCarthy, a former federal terrorism prosecutor. “As long as nothing goes boom, they want to say you’re an Islamophobe. The moment something does go boom, if the next 9/11 happens, God help anyone who says they weren’t as aggressive as Gordon.”
For British readers, Kromberg is Katie Hopkins with a legal brief. Conjure up that image every one of the scores of times Lewis relies on Gordon Kromberg.
More to the point, all expert witnesses have so far said that Kromberg’s precious memoranda explaining the scope of the indictment are inaccurate. It is at odds either with actual practice in the USA (the lawyer Clive Stafford Smith made this point) or the actual statutes to which it refers (the lawyers Trevor Timm and of course Mark Summers QC for the defence both make this point).
Crucially, Kromberg has a proven history of precisely this kind of distortion away from the statute. Also from the Wall Street Journal:
Federal judge Leonie M. Brinkema lashed out at the prosecutor [Kromberg], calling his remark insulting. Earlier, she had chastised Kromberg for changing a boilerplate immunity order beyond the language spelled out by Congress and questioned whether Arian’s constitutional rights had been violated.
“I’m not in any respect attributing evil motives or anything clandestine to you, but I think it’s real scary and not wise for a prosecutor to provide an order to the Court that does not track the explicit language of the statutes, especially this particular statute,” Brinkema said at the hearing in the Alexandria courtroom.
Next time Lewis asks a witness if they are questioning Kromberg’s good faith, they might want to answer “yes”. It certainly will not be the first time. As Trevor Timm testified today, senior prosecutors in the Justice Department had opposed this prosecution as unconstitutional and refused to be involved. Trump was left with this discredited right wing sleazeball. Now here we are at the Old Bailey, with a floundering Lewis clutching at this oaf Kromberg for intellectual support.
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This morning we went straight in to the evidence of Clive Stafford Smith, a dual national British/American lawyer licensed to practice in the UK. He had founded Reprieve in 1999 originally to oppose the death penalty, but after 2001 it had branched out into torture, illicit detention and extraordinary rendition cases in relation to the “war on terror”.
Clive Stafford Smith testified that the publication by Wikileaks of the cables had been of great utility to litigation in Pakistan against illegal drone strikes. As Clive’s witness statement put it at paras 86/7:
86. One of my motivations for working on these cases was that the U.S. drone campaign appeared to be horribly mismanaged and was resulting in paid informants giving false information about innocent people who were then killed in strikes. For example, when I shared the podium with Imran Khan at a “jirga” with the victims of drone strikes, I said in my public remarks that the room probably contained one or two people in the pay of the CIA. What I never guessed was that not only was this true but that the informant would later make a false statement about a teenager who attended the jirga such that he and his cousin were killed in a drone strike three days later. We knew from the official press statement afterwards that the “intelligence” given to the U.S. involved four “militants” in a car; we knew from his family just him and his cousin going to pick up an aunt. There is a somewhat consistent rule that can be seen at work here: it is, of course, much safer for any informant to make a statement about someone who is a “nobody”, than someone who is genuinely dangerous.
87. This kind of horrific action was provoking immense anger, causing America’s status in Pakistan to plummet, and was making life more dangerous for Americans, not less.
Legal action dependent on the evidence about US drones strike policy revealed by Wikileaks had led to a judgement against assassination by the Chief Justice of Pakistan and to a sea change to public attitudes to drone strikes in Waziristan. One result had been a stopping of drone strikes in Waziristan.
Wikileaks released cables also revealed US diplomatic efforts to block international investigation into cases of torture and extraordinary rendition. This ran counter to the legal duty of the United States to cooperate with investigation of allegations of torture as mandated in Article 9 of the UN Convention Against Torture.
Stafford Smith continued that an underrated document released by Wikileaks was the JPEL, or US military Joint Priority Effects List for Afghanistan, in large part a list of assassination targets. This revealed a callous disregard of the legality of actions and a puerile attitude to killing, with juvenile nicknames given to assassination targets, some of which nicknames appeared to indicate inclusions on the list by British or Australian agents.
Stafford Smith gave the example of Bilal Abdul Kareem, an American citizen and journalist who had been the subject of five different US assassination attempts, using hellfire missiles fired from drones. Stafford Smith was engaged in ongoing litigation in Washington on whether “the US Government has the right to target its own citizens who are journalists for assassination.”
Stafford Smith then spoke of Guantanamo and the emergence of evidence that many detainees there are not terrorists but had been swept up in Afghanistan by a system dependent on the payment of bounties. The Detainee Assessment Briefs released by Wikileaks were not independent information but internal US Government files containing the worst allegations that the US had been able to “confect” against prisoners including Stafford Smith’s clients, and often get them to admit under torture.
These documents were US government allegations and when Wikileaks released them it was his first thought that it was the US Government who had released them to discredit defendants. The documents could not be a threat to national security.
Inside Guantanamo a core group of six detainees had turned informant and were used to make false allegations against other detainees. Stafford Smith said it was hard to blame them – they were trying to get out of that hellish place like everybody else. The US government had revealed the identities of those six, which put into perspective their concern for protecting informants in relation to Wikileaks releases.
Clive Stafford Smith said he had been “profoundly shocked” by the crimes committed by the US government against his clients. These included torture, kidnapping, illegal detention and murder. The murder of one detainee at Baghram Airport in Afghanistan had been justified as a permissible interrogation technique to put fear into other detainees. In 2001, he would never have believed the US Government could have done such things.
Stafford Smith spoke of use of Spanish Inquisition techniques, such as strapado, or hanging by the wrists until the shoulders slowly dislocate. He told of the torture of Binyam Mohamed, a British citizen who had his genitals cut daily with a razor blade. The British Government had avoided its legal obligations to Binyam Mohamed, and had leaked to the BBC the statement he had been forced to confess to under torture, in order to discredit him.
At this point Baraitser intervened to give a five minute warning on the 30 minute guillotine on Stafford Smith’s oral evidence. Asked by Mark Summers for the defence how Wikileaks had helped, Stafford Smith said that many of the leaked documents revealed illegal kidnapping, rendition and torture and had been used in trials. The International Criminal Court had now opened an investigation into war crimes in Afghanistan, in which decision Wikileaks released material had played a part.
Mark Summers asked what had been the response of the US Government to the opening of this ICC investigation. Clive Stafford Smith stated that an Executive Order had been issued initiating sanctions against any non-US citizen who cooperated with or promoted the ICC investigation into war crimes by the US. He suggested that Mr Summers would now be subject to US sanction for promoting this line of questioning.
Mr Stafford Smith’s 30 minutes was now up. You can read his full statement here. There could not have been a clearer example from the first witness of why so much time yesterday was taken up with trying to block the evidence of defence witnesses from being heard. Stafford Smith’s evidence was breathtaking stuff and clearly illustrated the purpose of the time guillotine on defence evidence. This is not material governments wish to be widely aired.
James Lewis QC then cross-examined Clive Stafford Smith for the prosecution. He noted that references to Wikileaks in Stafford Smith’s written evidence were few and far between. He suggested that Stafford Smith’s evidence had tended to argue that Wikileaks disclosures were in the public interest; but there was specifically no public interest defence allowed in the UK Official Secrets Act.
Stafford Smith replied that may be, but he knew that was not the case in America.
Lewis then said that in Stafford Smith’s written evidence paras 92-6 he had listed specific Wikileaks cables which related to disclosure of drone policy. But publication of these particular cables did not form part of the indictment. Lewis read out part of an affidavit from US Assistant Attorney Kromberg which stated that Assange was being indicted only for cables containing the publication of names of informants.
Stafford Smith replied that Kromberg may state that, but in practice that would not be the case in the United States. The charge was of conspiracy, and the way such charges were defined in the US system would allow the widest inclusion of evidence. The first witness at trial would be a “terrorism expert” who would draw a wide and far reaching picture of the history of threat against the USA.
Lewis asked whether Stafford Smith had read the indictment. He replied he had read the previous indictment, but not the new superseding indictment.
Lewis stated that the cables Stafford Smith quoted had been published by the Washington Post and the New York Times before they were published by Wikileaks. Stafford Smith responded that was true, but he understood those newspapers had obtained them from Wikileaks. Lewis then stated that the Washington Post and New York Times were not being prosecuted for publishing the same information; so how could the publication of that material be relevant to this case?
Lewis quoted Kromberg again:
“The only instance in which the superseding indictment encompasses the publication of documents, is where those documents contains names which are put at risk”.
Stafford Smith again responded that in practice that was not how the case would be prosecuted in the United States. Lewis asked if Stafford Smith was calling Kromberg a liar.
At this point Julian Assange called out from the dock “This is nonsense. Count 1 states throughout “conspiracy to publish”. After a brief adjournment, Baraitser warned Julian he would be removed from the court if he interrupted proceedings again.
Stafford Smith said he had not said that Kromberg was a liar, and had not seen the full document from which Lewis was selectively quoting at him. Count 1 of the indictment is conspiracy to obtain national security information and this references dissemination to the public in a sub paragraph. This was not limited in the way Kromberg suggests and his claim did not correspond to Stafford Smith’s experience of how national security trials are in fact prosecuted in the United States.
Lewis reiterated that nobody was being prosecuted for publishing except Assange, and this only related to publishing names. He then asked Stafford Smith whether he had ever been in a position of responsibility for classifying information, to which he got a negative reply. Lewis then asked if had ever been in an official position to declassify documents. Stafford Smith replied no, but he held US security clearance enabling him to see classified material relating to his cases, and had often applied to have material declassified.
Stafford Smith stated that Kromberg’s assertion that the ICC investigation was a threat to national security was nonsense [I confess I am not sure where this assertion came from or why Stafford Smith suddenly addressed it]. Lewis suggested that the question of harm to US national interest from Assange’s activities was best decided by a jury in the United States. The prosecution had to prove damage to the interests of the US or help to an enemy of the US.
Stafford Smith said that beyond the government adoption of torture, kidnapping and assassination, he thought the post-2001 mania for over-classification of government information was an even bigger threat to the American way of life. He recalled his client Moazzam Begg – the evidence of Moazzam’s torture was classified “secret” on the grounds that knowledge that the USA used torture would damage American interests.
Lewis then took Stafford Smith to a passage in the book “Wikileaks; Inside Julian Assange’s War on Secrecy”, in which Luke Harding stated that he and David Leigh were most concerned to protect the names of informants, but Julian Assange had stated that Afghan informants were traitors who merited retribution. “They were informants, so if they got killed they had it coming.” Lewis tried several times to draw Stafford Smith into this, but Stafford Smith repeatedly said he understood these alleged facts were under dispute and he had no personal knowledge.
Lewis concluded by again repeating that the indictment only covered the publication of names. Stafford Smith said that he would eat his hat if that was all that was introduced at trial.
In re-examination, Mark Summers said that Lewis had characterised the disclosure of torture, killing and kidnapping as “in the public interest”. Was that a sufficient description? Stafford Smith said no, it was also the provision of evidence of crime; war crime and illegal activity.
Summers asked Stafford Smith to look at the indictment as a US lawyer (which Stafford Smith is) and see if he agreed with the characterisation by Lewis that it only covered publication where names were revealed. Summers read out this portion of the superseding indictment:
and pointed out that the “and” makes the point on documents mentioning names an additional category of document, not a restriction on the categories listed earlier. You can read the full superseding indictment here; be careful when browsing as there are earlier superseding indictments; the US Government changes its indictment in this case about as often as Kim Kardashian changes her handbag.
Summers also listed Counts 4, 7, 10, 13 and 17 as also not limited to the naming of informants.
Stafford Smith again repeated his rather different point that in practice Kromberg’s assertion does not actually match how such cases are prosecuted in the US anyway. In answer to a further question, he repeated that the US government had itself released the names of its Guantanamo Bay informants.
In regard to the passage quoted from David Leigh, Summers asked Stafford Smith “Do you know that Mr Harding has published untruths in the press”. Lewis objected and Summers withdrew (although this is certainly true).
This concluded Clive Stafford Smith’s evidence. Before the next witness, Lewis put forward an argument to the judge that it was beyond dispute that the new indictment only related, as far as publication being an offence was concerned, to publication of names of defendants. Baraitser had replied that plainly this was disputed and the matter would be argued in due course.
PROFESSOR MARK FELDSTEIN
The afternoon resumed the evidence of Professor Mark Feldstein, begun sporadically amid technical glitches on Monday. For that reason I held off reporting the false start until now; I here give it as one account. Prof Feldstein’s full witness statement is here.
Professor Feldstein is Chair of Broadcast Journalism at Maryland University and had twenty years experience as an investigative journalist.
Feldstein stated that leaking of classified information happens with abandon in the United States. Government officials did it frequently. One academic study estimated such leaks as “thousands upon thousands”. There were journalists who specialised in national security and received Pulitzer prizes for receiving such leaks on military and defence matters. Leaked material is published on a daily basis.
Feldstein stated that “The first amendment protects the press, and it is vital that the First Amendment does so, not because journalists are privileged, but because the public have the right to know what is going on”. Historically, the government had never prosecuted a publisher for publishing leaked secrets. They had prosecuted whistleblowers.
There had been historical attempts to prosecute individual journalists, but all had come to nothing and all had been a specific attack on a perceived Presidential enemy. Feldstein had listed three instances of such attempts, but none had reached a grand jury.
[This is where the technology broke down on Monday. We now resume with Tuesday afternoon.]
Mark Summers asked Prof Feldstein about the Jack Anderson case. Feldstein replied he had researched this for his book “Poisoning the Press”. Nixon had planned to prosecute Anderson under the Espionage Act but had been told by his Attorney General the First Amendment made it impossible. Consequently Nixon had conducted a campaign against Anderson that included anti-gay smears, planting a spy in his office and foisting forged documents on him. An assassination plot by poison had even been discussed.
Summers took Feldstein to his evidence on “Blockbuster” newspaper stories based on Wikileaks publications:
A disturbing videotape of American soldiers firing on a crowd from a helicopter above Baghdad, killing at least 18 people; the soldiers laughed as they targeted unarmed civilians, including two Reuters journalists.
US officials gathered detailed and often gruesome evidence that approximately 100,000 civilians were killed after its invasion of Iraq, contrary to the public claims of President George W. Bush’s administration, which downplayed the deaths and insisted that such statistics were not maintained. Approximately 15,000 of these civilians killings had never been previously disclosed anywhere.
American forces in Iraq routinely turned a blind eye when the US-backed government there brutalized detainees, subjecting them to beatings, whippings, burnings, electric shock, and sodomy.
After WikiLeaks published vivid accounts compiled by US diplomats of rampant corruption by Tunisian president Zine el-Abidine Ben Ali and his family, ensuing street protests forced the dictator to flee to Saudia Arabia. When the unrest in Tunisia spread to other Mideast countries,WikiLeaks was widely hailed as a key catalyst for this “Arab Spring.”
In Afghanistan, the US deployed a secret “black” unit of special forces to hunt down “high value” Taliban leaders for “kill or capture” without trial.
The US government expanded secret intelligence collection by its diplomats at the United Nations and overseas, ordering envoys to gather credit card numbers, work schedules, and frequent flier numbers of foreign dignitaries—eroding the distinction between foreign service officers and spies.
Saudi Arabian King Abdullah secretly implored the US to “cut off the head of the snake” and stop Iran from developing nuclear weapons even as private Saudi donors were the number-one source of funding to Sunni terrorist groups worldwide.
Customs officials caught Afghanistan’s vice president carrying $52 million in unexplained cash during a trip abroad, just one example of the endemic corruption at the highest levels of the Afghan government that the US has helped prop up.
The US released “high risk enemy combatants” from its military prison in Guantanamo Bay, Cuba who then later turned up again in Mideast battlefields. At the same time, Guantanamo prisoners who proved harmless—such as an 89-year-old Afghan villager suffering from senile dementia—were held captive for years.
US officials listed Pakistan’s intelligence service as a terrorist organization and found that it had plotted with the Taliban to attack American soldiers in Afghanistan—even though Pakistan receives more than $1 billion annually in US aid. Pakistan’s civilian president, Asif Ali Zardari, confided that he had limited control to stop this and expressed fear that his own military might “take me out.”
Feldstein agreed that many of these had revealed criminal acts and war crimes, and they were important stories for the US media. Summers asked Feldstein about Assange being charged with soliciting classified information. Feldstein replied that gathering classified information is “standard operating procedure” for journalists. “My entire career virtually was soliciting secret documents or records”
Summers pointed out that one accusation was that Assange helped Manning cover her tracks by breaking a password code. “Trying to help protect your source is a journalistic obligation” replied Feldstein. Journalists would provide sources with payphones, fake email accounts, and help them remove fingerprints both real and digital. These are standard journalistic techniques, taught at journalism college and workshops.
Summers asked about disclosure of names and potential harm to people. Feldstein said this was “easy to assert, hard to establish”. Government claims of national security damage were routinely overblown and should be treated with scepticism. In the case of the Pentagon Papers, the government had claimed that publication would identify CIA agents, reveal military plans and lengthen the Vietnam War. These claims had all proven to be untrue.
On the White House tapes Nixon had been recorded telling his aides to “get” the New York Times. He said their publications should be “cast in terms of aid and comfort to the enemy”.
Summers asked about the Obama administration’s attitude to Wikileaks. Feldstein said that there had been no prosecution after Wikileaks’ major publications in 2010/11. But Obama’s Justice Department had instigated an “aggressive investigation”. However they concluded in 2013 that the First Amendment rendered any prosecution impossible. Justice Department Spokesman Matthew Miller had published that they thought it would be a dangerous precedent that could be used against other journalists and publications.
With the Trump administration everything had changed. Trump had said he wished to “put reporters in jail”. Pompeo when head of the CIA had called Wikileaks a “hostile intelligence agency”. Sessions had declared prosecuting Assange “a priority”.
James Lewis then rose to cross-examine Feldstein. He adopted a particularly bullish and aggressive approach, and started by asking Feldstein to confine himself to very short, concise answers to his precise questions. He said that Feldstein “claimed to be” an expert witness, and had signed to affirm that he had read the criminal procedural rules. Could he tell the court what those rules said?
This was plainly designed to trip Feldstein up. I am sure I must have agreed WordPress’s terms and conditions in order to be able to publish this blog, but if you challenged me point blank to recall what they say I would struggle. However Feldstein did not hesitate, but came straight back saying that he had read them, and they were rather different to the American rules, stipulating impartiality and objectivity.
Lewis asked what Feldstein’s expertise was supposed to be. Feldstein replied the practice, conduct and history of journalism in the United States. Lewis asked if Feldstein was legally qualified. Feldstein replied no, but he was not giving legal opinion. Lewis asked if he had read the indictment. Feldstein replied he had not read the most recent indictment.
Lewis said that Feldstein had stated that Obama decided not to prosecute whereas Trump did. But it was clear that the investigation had continued through from the Obama to the Trump administrations. Feldstein replied yes, but the proof of the pudding was that there had been no prosecution under Obama.
Lewis referred to a Washington Post article from which Feldstein had quoted in his evidence and included in his footnotes, but had not appended a copy. “Was that because it contained a passage you do not wish us to read?” Lewis said that Feldstein had omitted the quote that “no formal decision had been made” by the Obama administration, and a reference to the possibility of prosecution for activity other than publication.
Feldstein was plainly slightly rattled by Lewis’ accusation of distortion. He replied that his report stated that the Obama administration did not prosecute, which was true. He had footnoted the article; he had not thought he needed to also provide a copy. He had exercised editorial selection in quoting from the article.
Lewis said that from other sources, a judge had stated in District Court that investigation was ongoing and District Judge Mehta had said other prosecutions against persons other than Manning were being considered. Why had Feldstein not included this information in his report? Assange’s lawyer Barry J Pollock had stated “they are not informing us they are closing the investigation or have decided not to charge.” Would it not be fair to add that to his report?
Prof Feldstein replied that Assange and his lawyers would be hard to convince that the prosecution had been dropped, but we know that no new information had in 2015/16 been brought to the Grand Jury.
Lewis stated that in 2016 Assange had offered to go to the United States to face charges if Manning were granted clemency. Does this not show the Obama administration was intending to charge? Should this not have been in his report? Feldstein replied no, because it was irrelevant. Assange was not in a position to know what Obama’s Justice Department was doing. The subsequent testimony of Obama Justice Department insiders was much more valuable.
Lewis asked if the Obama administration had decided not to prosecute, why would they keep the Grand Jury open? Feldstein replied this happened very frequently. It could be for many reasons, including to collect information on alleged co-conspirators, or simply in the hope of further new evidence.
Lewis suggested that the most Feldstein might honestly say was that the Obama administration had intimated that they would not prosecute for passively obtained information, but that did not extend to a decision not to prosecute for hacking with Chelsea Manning. “If Obama did not decide not to prosecute, and the investigation had continued into the Trump administration, then your diatribe against Trump becomes otiose.”
Lewis continued that the “New York Times problem” did not exist because the NYT had only published information it had passively received. Unlike Assange, the NYT had not conspired with Manning illegally to obtain the documents. Would Prof Feldstein agree that the First Amendment did not defend a journalist against a burglary or theft charge? Feldstein replied that a journalist is not above the law. Lewis then asked Feldstein whether a journalist had a right to “steal or unlawfully obtain information” or “to hack a computer to obtain information.” Each time Feldstein replied “no”.
Lewis then asked if Feldstein accepted that Bradley (sic) Manning had committed a crime. Feldstein replied “yes”. Lewis then asked “If Assange aided and abetted, consulted or procured or entered into a conspiracy with Bradley Manning, has he not committed a crime?” Feldstein said that would depend on the “sticky details.”
Lewis then restated that there was no allegation that the NYT entered into a conspiracy with Bradley Manning, only Julian Assange. On the indictment, only counts 15, 16 and 17 related to publishing and these only to publishing of unredacted documents. The New York Times, Guardian and Washington Post had united in condemnation of the publication by Wikileaks of unredacted cables containing names. Lewis then read out again the same quote from the Leigh/Harding book he had put to Stafford Smith, stating that Julian Assange had said the Afghan informants would deserve their fate.
Lewis asked: “Would a responsible journalist publish unredacted names of an informant knowing he is in danger when it is unnecessary to do so for the purpose of the story”. Prof Feldstein replied “no”. Lewis then went on to list examples of information it might be proper for government to keep secret, such as “troop movements in war, nuclear codes, material that would harm an individual” and asked if Feldstein agreed these were legitimate secrets. Feldstein replied “yes”.
Lewis then asked rhetorically whether it was not more fair to allow a US jury to be the judge of harm. He then asked Feldstein: “You say in your report that this is a political prosecution. But a Grand jury has supported the prosecution. Do you accept that there is an evidentiary basis for the prosecution?”. Feldstein replied “A grand jury has made that decision. I don’t know that it is true.” Lewis then read out a statement from US Assistant Attorney Kromberg that prosecution decisions are taken by independent prosecutors who follow a code that precludes political factors. He asked Feldstein if he agreed that independent prosecutors were a strong bulwark against political prosecution.
Feldstein replied “That is a naive view.”
Lewis then asked whether Feldstein was claiming that President Trump or his Attorney General had ordered this prosecution without a factual basis. The professor replied he had no doubt it was a political prosecution, this was based on 1) its unprecedented nature 2) the rejection of prosecution by Obama but decision to prosecute now with no new evidence 3) the extraordinary wide framing of the charges 4) President Trump’s narrative of hostility to the press. “It’s political”.
Mark Summers then re-examined Professor Feldstein. He said that Lewis had suggested that Assange was complicit in Manning obtaining classified information but the New York Times was not. Is it your understanding that to seek to help an official leaker is a crime? Professor Feldstein replied “No, absolutely not”.
“Do journalists ask for classified information?”
“Yes.”
“Do journalists solicit such information?”
“Yes.”
“Are you aware of any kind of previous prosecution for this kind of activity.”
“No. Absolutely not.”
“Could you predict it would be criminalised?”
“No, and it is very dangerous.”
Summers than asked Professor Feldstein what the New York Times had done to get the Pentagon Papers from Daniel Ellsberg. Feldstein replied they were very active in soliciting the papers. They had a key to the room that held the documents and had helped to copy them. They had played an active not a passive role. “Journalists are not passive stenographers.”
Summers reminded Prof Feldstein that he had been asked about hacking. What if the purpose of the hacking was not to obtain the information, but to disguise the source? This was the specific allegation spelt out in Kromberg memorandum 4 paras 11 to 14. Professor Feldstein replied that protecting sources is an obligation. Journalists work closely with, conspire with, cajole, encourage, direct and protect their sources. That is journalism.
Summers asked Prof Feldstein if he maintained his caution in accepting government claims of harm. Feldstein replied absolutely. The government track record demanded caution. Summers pointed out that there is an act which specifically makes illegal the naming of intelligence sources, the Intelligence Identities Protection Act. Prof Feldstein said this was true; the fact that the charge was not brought under the IIPA proves that it is not true that the prosecution is intended to be limited to revealing of identities and in fact it will be much broader.
Summers concluded by saying that Lewis had stated that Wikileaks had released the unredacted cables in a mass publication. Would it change the professor’s assessment if the material had already been released by others. Prof Feldstein said his answers were not intended to indicate he accepted the government narrative.
Edward Fitzgerald QC then took over for the defence. He put to Prof Feldstein that there had been no prosecution of Assange when Manning was prosecuted, and Obama had given Manning clemency. These were significant facts. Feldstein agreed.
Fitzgerald then said that the Washington Post article from which Lewis complained Feldstein had quoted selectively, contained a great deal more material Feldstein had also not quoted but which strongly supported his case, for example “Officials told the Washington Post last week that there is no sealed indictment and the Department had “all but concluded that they would not bring a charge.”” It further stated that when Snowden was charged, Greenwald was not, and the same approach was followed with Manning/Assange. So overall the article confirmed Feldstein’s thesis, as contained in his report. Feldstein agreed. There was then discussion of other material that could have been included to support his thesis.
Fitzgerald concluded by asking if Feldstein were familiar with the phrase “a grand jury would indict a ham sandwich”. Feldstein replied it was common parlance and indicated the common view that grand juries were malleable and almost always did what prosecutors asked them to do. There was a great deal of academic material on this point.
THOUGHTS
Thus concluded another extraordinary day. Once again, there were just five of us in the public gallery (in 42 seats) and the six allowed in the overflow video gallery in court 9 was reduced to three, as three seats were reserved by the court for “VIPs” who did not show up.
The cross-examinations showed the weakness of the thirty minute guillotine adopted by Baraitser, with really interesting defence testimony cut short, and then unlimited time allowed to Lewis for his cross examination. This was particularly pernicious in the evidence of Mark Feldstein. In James Lewis’ extraordinary cross-examination of Feldstein, Lewis spoke between five and ten times as many words as the actual witness. Some of Lewis’s “questions” went on for many minutes, contained huge passages of quote and often were phrased in convoluted double negative. Thrice Feldstein refused to reply on grounds he could not make out where the question lay. With the defence initial statement of the evidence limited to half an hour, Lewis’s cross examination approached two hours, a good 80% of which was Lewis speaking.
Feldstein was browbeaten by Lewis and plainly believed that when Lewis told him to answer in very brief and concise answers, Lewis had the authority to instruct that. In fact Lewis is not the judge and it was supposed to be Feldstein’s evidence, not Lewis’s. Baraitser failed to protect Feldstein or to explain his right to frame his own answers, when that was very obviously a necessary course for her to take.
Today we had two expert witnesses, who had both submitted lengthy written testimony relating to one indictment, which was now being examined in relation to a new superseding indictment, exchanged at the last minute, and which neither of them had ever seen. Both specifically stated they had not seen the new indictment. Furthermore this new superseding indictment had been specifically prepared by the prosecution with the benefit of having heard the defence arguments and seen much of the defence evidence, in order to get round the fact that the indictment on which the hearing started was obviously failing.
On top of which the defence had been refused an adjournment to prepare their defence against the new indictment, which would have enabled these and other witnesses to see the superseding indictment, adjust their evidence accordingly and be prepared to be cross-examined in relation to it.
Clive Stafford Smith testified today that in 2001 he would not have believed the outrageous crimes that were to be perpetrated by the US government. I am obliged to say that I simply cannot believe the blatant abuse of process that is unfolding before my eyes in this courtroom.
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I went to the Old Bailey today expecting to be awed by the majesty of the law, and left revolted by the sordid administration of injustice.
There is a romance which attaches to the Old Bailey. The name of course means fortified enclosure and it occupies a millennia old footprint on the edge of London’s ancient city wall. It is the site of the medieval Newgate Prison, and formal trials have taken place at the Old Bailey for at least 500 years, numbering in the hundreds of thousands. For the majority of that time, those convicted even of minor offences of theft were taken out and executed in the alleyway outside. It is believed that hundreds, perhaps thousands, lie buried under the pavements.
The hefty Gothic architecture of the current grand building dates back no further than 1905, and round the back and sides of that is wrapped some horrible cheap utility building from the 1930’s. It was through a tunnelled entrance into this portion that five of us, Julian’s nominated family and friends, made our nervous way this morning. We were shown to Court 10 up many stairs that seemed like the back entrance to a particularly unloved works canteen. Tiles were chipped, walls were filthy and flakes of paint hung down from crumbling ceilings. Only the security cameras watching us were new – so new, in fact, that little piles of plaster and brick dust lay under each.
Court 10 appeared to be a fairly bright and open modern box, with pleasant light woodwork, jammed as a mezzanine inside a great vault of the old building. A massive arch intruded incongruously into the space and was obviously damp, sheets of delaminating white paint drooping down from it like flags of forlorn surrender. The dock in which Julian would be held still had a bulletproof glass screen in front, like Belmarsh, but it was not boxed in. There was no top to the screen, no low ceiling, so sound could flow freely over and Julian seemed much more in the court. It also had many more and wider slits than the notorious Belmarsh Box, and Julian was able to communicate quite readily and freely through them with his lawyers, which this time he was not prevented from doing.
Rather to our surprise, nobody else was allowed into the public gallery of court 10 but us five. Others like John Pilger and Kristin Hrafnsson, editor in chief of Wikileaks, were shunted into the adjacent court 9 where a very small number were permitted to squint at a tiny screen, on which the sound was so inaudible John Pilger simply left. Many others who had expected to attend, such as Amnesty International and Reporters Without Borders, were simply excluded, as were MPs from the German federal parliament (both the German MPs and Reporters Without Borders at least later got access to the inadequate video following strong representations from the German Embassy).
The reason given that only five of us were allowed in the public gallery of some 40 seats was social distancing; except we were allowed to all sit together in consecutive seats in the front row. The two rows behind us remained completely empty.
To finish scene setting, Julian himself looked tidy and well groomed and dressed, and appeared to have regained a little lost weight, but with a definite unhealthy puffiness about his features. In the morning he appeared disengaged and disoriented rather as he had at Belmarsh, but in the afternoon he perked up and was very much engaged with his defence team, interacting as normally as could be expected in these circumstances.
Proceedings started with formalities related to Julian’s release on the old extradition warrant and re-arrest under the new warrant, which had taken place this morning. Defence and prosecution both agreed that the points they had already argued on the ban on extradition for political offences were not affected by the superseding indictment.
Magistrate Baraitser then made a statement about access to the court by remote hearing, by which she meant online. She stated that a number of access details had been sent out by mistake by the court without her agreement. She had therefore revoked their access permissions.
As she spoke, we in the court had no idea what had happened, but outside some consternation was underway in that the online access of Amnesty International, of Reporters without Borders, of John Pilger and of forty others had been shut down. As these people were neither permitted to attend the court nor observe online, this was causing some consternation.
Baraitser went on to say that it was important that the hearing was public, but she should only agree remote access where it was “in the interests of justice”, and having considered it she had decided it was not. She explained this by stating that the public could normally observe from within the courtroom, where she could control their behaviour. But if they had remote access, she could not control their behaviour and this was not in the “interests of justice”.
Baraitser did not expand on what uncontrolled behaviour she anticipated from those viewing via the internet. It is certainly true that an observer from Amnesty sitting at home might be in their underwear, might be humming the complete soundtrack to Mamma Mia, or might fart loudly. Precisely why this would damage “the interests of justice” we are still left to ponder, with no further help from the magistrate. But evidently the interests of justice were, in her view, best served if almost nobody could examine the “justice” too closely.
The next “housekeeping issue” to be addressed was how witnesses should be heard. The defence had called numerous witnesses, and each had lodged a written statement. The prosecution and Baraitser both suggested that, having given their evidence in writing, there was no need for defence witnesses to give that evidence orally in open court. It would be much quicker to go straight to cross-examination by the prosecution.
For the defence, Edward Fitzgerald QC countered that justice should be seen to be done by the public. The public should be able to hear the defence evidence before hearing the cross-examination. It would also enable Julian Assange to hear the evidence summarised, which was important for him to follow the case given his lack of extended access to legal papers while in Belmarsh prison.
Baraitser stated there could not be any need for evidence submitted to her in writing to be repeated orally. For the defence, Mark Summers QC was not prepared to drop it and tension notably rose in the court. Summers stated it was normal practice for there to be “an orderly and rational exposition of the evidence”. For the prosecution, James Lewis QC denied this, saying it was not normal procedure.
Baraitser stated she could not see why witnesses should be scheduled an one hour forty five minutes each, which was too long. Lewis agreed. He also added that the prosecution does not accept that the defence’s expert witnesses are expert witnesses. A Professor of journalism telling about newspaper coverage did not count. An expert witness should only be giving evidence on a technical point the court was otherwise unqualified to consider. Lewis also objected that in giving evidence orally, defence witnesses might state new facts to which the Crown had not had time to react. Baraitser noted that the written defence statements were published online, so they were available to the public.
Edward Fitzgerald QC stood up to speak again, and Baraitser addressed him in a quite extraordinary tone of contempt. What she said exactly was: “I have given you every opportunity. Is there anything else, really, that you want to say”, the word “really” being very heavily emphasised and sarcastic. Fitzgerald refused to be sat down, and he stated that the current case featured “substantial and novel issues going to fundamental questions of human rights.” It was important the evidence was given in public. It also gave the witnesses a chance to emphasise the key points of their evidence and where they placed most weight.
Baraitser called a brief recess while she considered judgement on this issue, and then returned. She found against the defence witnesses giving their evidence in open court, but accepted that each witness should be allowed up to half an hour of being led by the defence lawyers, to enable them to orient themselves and reacquaint with their evidence before cross-examination.
This half hour for each witness represented something of a compromise, in that at least the basic evidence of each defence witness would be heard by the court and the public (insofar as the public was allowed to hear anything). But the idea that a standard half hour guillotine is sensible for all witnesses, whether they are testifying to a single fact or to developments over years, is plainly absurd. What came over most strongly from this question was the desire of both judge and prosecution to railroad through the extradition with as little of the case against it getting a public airing as possible.
As the judge adjourned for a short break we thought these questions had now been addressed and the rest of the day would be calmer. We could not have been more wrong.
The court resumed with a new defence application, led by Mark Summers QC, about the new charges from the US governments new superseding indictment. Summers took the court back over the history of this extradition hearing. The first indictment had been drawn up in March of 2018. In January 2019 a provisional request for extradition had been made, which had been implemented in April of 2019 on Assange’s removal from the Embassy. In June 2019 this was replaced by the full request with a new, second indictment which had been the basis of these proceedings before today. A whole series of hearings had taken place on the basis of that second indictment.
The new superseding indictment dated from 20 June 2020. In February and May 2020 the US government had allowed hearings to go ahead on the basis of the second indictment, giving no warning, even though they must by that stage have known the new superseding indictment was coming. They had given neither explanation nor apology for this.
The defence had not been properly informed of the superseding indictment, and indeed had learnt of its existence only through a US government press release on 20 June. It had not finally been officially served in these proceedings until 29 July, just six weeks ago. At first, it had not been clear how the superseding indictment would affect the charges, as the US government was briefing it made no difference but just gave additional detail. But on 21 August 2020, not before, it finally became clear in new US government submissions that the charges themselves had been changed.
There were now new charges that were standalone and did not depend on the earlier allegations. Even if the 18 Manning related charges were rejected, these new allegations could still form grounds for extradition. These new allegations included encouraging the stealing of data from a bank and from the government of Iceland, passing information on tracking police vehicles, and hacking the computers both of individuals and of a security company.
“How much of this newly alleged material is criminal is anybody’s guess”, stated Summers, going on to explain that it was not at all clear that an Australian giving advice from outwith Iceland to someone in Iceland on how to crack a code, was actually criminal if it occurred in the UK. This was even without considering the test of dual criminality in the US also, which had to be passed before the conduct was subject to extradition.
It was unthinkable that allegations of this magnitude would be the subject of a Part 2 extradition hearing within six weeks if they were submitted as a new case. Plainly that did not give the defence time to prepare, or to line up witnesses to these new charges. Among the issues relating to these new charges the defence would wish to address, were that some were not criminal, some were out of time limitation, some had already been charged in other fora (including Southwark Crown Court and courts in the USA).
There were also important questions to be asked about the origins of some of these charges and the dubious nature of the witnesses. In particular the witness identified as “teenager” was the same person identified as “Iceland 1” in the previous indictment. That indictment had contained a “health warning” over this witness given by the US Department of Justice. This new indictment removed that warning. But the fact was, this witness is Sigurdur Thordarson, who had been convicted in Iceland in relation to these events of fraud, theft, stealing Wikileaks money and material and impersonating Julian Assange.
The indictment did not state that the FBI had been “kicked out of Iceland for trying to use Thordarson to frame Assange”, stated Summers baldly.
Summers said all these matters should be ventilated in these hearings if the new charges were to be heard, but the defence simply did not have time to prepare its answers or its witnesses in the brief six weeks it had since receiving them, even setting aside the extreme problems of contact with Assange in the conditions in which he was being held in Belmarsh prison.
The defence would plainly need time to prepare answers to these new charges, but it would plainly be unfair to keep Assange in jail for the months that would take. The defence therefore suggested that these new charges should be excised from the conduct to be considered by the court, and they should go ahead with the evidence on criminal behaviour confined to what conduct had previously been alleged.
Summers argued it was “entirely unfair” to add what were in law new and separate criminal allegations, at short notice and “entirely without warning and not giving the defence time to respond to it. What is happening here is abnormal, unfair and liable to create real injustice if allowed to continue.”
The arguments submitted by the prosecution now rested on these brand new allegations. For example, the prosecution now countered the arguments on the rights of whistleblowers and the necessity of revealing war crimes by stating that there can have been no such necessity to hack into a bank in Iceland.
Summers concluded that the “case should be confined to that conduct which the American government had seen fit to allege in the eighteen months of the case” before their second new indictment.
Replying to Summers for the prosecution, Joel Smith QC replied that the judge was obliged by the statute to consider the new charges and could not excise them. “If there is nothing proper about the restitution of a new extradition request after a failed request, there is nothing improper in a superseding indictment before the first request had failed.” Under the Extradition Act the court must decide only if the offence is an extraditable offence and the conduct alleged meets the dual criminality test. The court has no other role and no jurisdiction to excise part of the request.
Smith stated that all the authorities (precedents) were of charges being excised from a case to allow extradition to go ahead on the basis of the remaining sound charges, and those charges which had been excised were only on the basis of double jeopardy. There was no example of charges being excised to prevent an extradition. And the decision to excise charges had only ever been taken after the conduct alleged had been examined by the court. There was no example of alleged conduct not being considered by the court. The defendant could seek extra time if needed but the new allegations must be examined.
Summers replied that Smith was “wrong, wrong, wrong, and wrong”. “We are not saying that you can never submit a new indictment, but you cannot do it six weeks before the substantive hearing.” The impact of what Smith had said amounted to no more than “Ha ha this is what we are doing and you can’t stop us.” A substantive last minute change had been made with no explanation and no apology. It could not be the case, as Smith alleged, that a power existed to excise charges in fairness to the prosecution, but no power existed to excise charges in fairness to the defence.
Immediately Summers sat down, Baraitser gave her judgement on this point. As so often in this hearing, it was a pre-written judgement. She read it from a laptop she had brought into the courtroom with her, and she had made no alterations to that document as Summers and Smith had argued the case in front of her.
Baraitser stated that she had been asked as a preliminary move to excise from the case certain conduct alleged. Mr Summers had described the receipt of new allegations as extraordinary. However “I offered the defence the opportunity to adjourn the case” to give them time to prepare against the new allegations. “I considered of course that Mr Assange was in custody. I hear that Mr Summers believes this is fundamental unfairness”. But “the argument that we haven’t got the time, should be remedied by asking for the time.”
Mr Summers had raised issues of dual criminality and abuse of process; there was nothing preventing him for raising these arguments in the context of considering the request as now presented.
Baraitser simply ignored the argument that while there was indeed “nothing to prevent” the defence from answering the new allegations as each was considered, they had been given no time adequately to prepare. Having read out her pre-prepared judgement to proceed on the basis of the new superseding indictment, Baraitser adjourned the court for lunch.
At the end of the day I had the opportunity to speak to an extremely distinguished and well-known lawyer on the subject of Baraitser bringing pre-written judgements into court, prepared before she had heard the lawyers argue the case before her. I understood she already had seen the outline written arguments, but surely this was wrong. What was the point in the lawyers arguing for hours if the judgement was pre-written? What I really wanted to know was how far this was normal practice.
The lawyer replied to me that it absolutely was not normal practice, it was totally outrageous. In a long and distinguished career, this lawyer had very occasionally seen it done, even in the High Court, but there was always some effort to disguise the fact, perhaps by inserting some reference to points made orally in the courtroom. Baraitser was just blatant. The question was, of course, whether it was her own pre-written judgement she was reading out, or something she had been given from on high.
This was a pretty shocking morning. The guillotining of defence witnesses to hustle the case through, indeed the attempt to ensure their evidence was not spoken in court except those parts which the prosecution saw fit to attack in cross-examination, had been breathtaking. The effort by the defence to excise the last minute superseding indictment had been a fundamental point disposed of summarily. Yet again, Baraitser’s demeanour and very language made little attempt to disguise a hostility to the defence.
We were for the second time in the day in a break thinking that events must now calm down and get less dramatic. Again we were wrong.
Court resumed forty minutes late after lunch as various procedural wrangles were addressed behind closed doors. As the court resumed, Mark Summers for the defence stood up with a bombshell.
Summers said that the defence “recognised” the judgement Baraitser had just made – a very careful choice of word, as opposed to “respected” which might seem more natural. As she had ruled that the remedy to lack of time was more time, the defence was applying for an adjournment to enable them to prepare the answers to the new charges. They did not do this lightly, as Mr Assange would continue in prison in very difficult conditions during the adjournment.
Summers said the defence was simply not in a position to gather the evidence to respond to the new charges in a few short weeks, a situation made even worse by Covid restrictions. It was true that on 14 August Baraitser had offered an adjournment and on 21 August they had refused the offer. But in that period of time, Mr Assange had not had access to the new charges and they had not fully realised the extent to which these were a standalone new case. To this date, Assange had still not received the new prosecution Opening Note in prison, which was a crucial document in setting out the significance of the new charges.
Baraitser pointedly asked whether the defence could speak to Assange in prison by telephone. Summers replied yes, but these were extremely short conversations. They could not phone Mr Assange; he could only call out very briefly on the prison payphone to somebody’s mobile, and the rest of the team would have to try to gather round to listen. It was not possible in these very brief discussions adequately to expound complex material. Between 14 and 21 August they had been able to have only two such very short phone calls. The defence could only send documents to Mr Assange through the post to the prison; he was not always given them, or allowed to keep them.
Baraitser asked how long an adjournment was being requested. Summers replied until January.
For the US government, James Lewis QC replied that more scrutiny was needed of this request. The new matters in the indictment were purely criminal. They do not affect the arguments about the political nature of the case, or affect most of the witnesses. If more time were granted, “with the history of this case, we will just be presented with a sleigh of other material which will have no bearing on the small expansion of count 2”.
Baraitser adjourned the court “for ten minutes” while she went out to consider her judgement. In fact she took much longer. When she returned she looked peculiarly strained.
Baraitser ruled that on 14 August she had given the defence the opportunity to apply for an adjournment, and given them seven days to decide. On 21 August the defence had replied they did not want an adjournment. They had not replied that they had insufficient time to consider. Even today the defence had not applied to adjourn but rather had applied to excise charges. They “cannot have been surprised by my decision” against that application. Therefore they must have been prepared to proceed with the hearing. Their objections were not based on new circumstance. The conditions of Assange in Belmarsh had not changed since 21 August. They had therefore missed their chance and the motion to adjourn was refused.
The courtroom atmosphere was now highly charged. Having in the morning refused to cut out the superseding indictment on the grounds that the remedy for lack of time should be more time, Baraitser was now refusing to give more time. The defence had called her bluff; the state had apparently been confident that the effective solitary confinement in Belmarsh was so terrible that Assange would not request more time. I rather suspect that Julian was himself bluffing, and made the call at lunchtime to request more time in the full expectation that it would be refused, and the rank hypocrisy of the proceedings exposed.
I previously blogged about how the procedural trickery of the superseding indictment being used to replace the failing second indictment – as Smith said for the prosecution “before it failed” – was something that sickened the soul. Today in the courtroom you could smell the sulphur.
Well, yet again we were left with the feeling that matters must now get less exciting. This time we were right and they became instead excruciatingly banal. We finally moved on to the first witness, Professor Mark Feldstein, giving evidence to the court by videolink for the USA. It was not Professor Feldstein’s fault the day finished in confused anti-climax. The court was unable to make the video technology work. For ten broken minutes out of about forty Feldstein was briefly able to give evidence, and even this was completely unsatisfactory as he and Mark Summers were repeatedly speaking over each other on the link.
Professor Feldstein’s evidence will resume tomorrow (now in fact today) and I think rather than split it I shall give the full account then. Meantime you can see these excellent summaries from Kevin Gosztola or the morning and afternoon reports from James Doleman. In fact, I should be grateful if you did, so you can see that I am neither inventing nor exaggerating the facts of these startling events.
If you asked me to sum up today in a word, that word would undoubtedly be “railroaded”. it was all about pushing through the hearing as quickly as possible and with as little public exposure as possible to what is happening. Access denied, adjournment denied, exposition of defence evidence denied, removal of superseding indictment charges denied. The prosecution was plainly failing in that week back in Woolwich in February, which seems like an age ago. It has now been given a new boost.
How the defence will deal with the new charges we shall see. It seems impossible that they can do this without calling new witnesses to address the new facts. But the witness lists had already been finalised on the basis of the old charges. That the defence should be forced to proceed with the wrong witnesses seems crazy, but frankly, I am well past being surprised by anything in this fake process.
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My coverage of Julian’s case is entirely dependent on your financial support. Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
Today, the corporate media that cried “Media freedom” when Extinction Rebellion blocked the billionaire owned propaganda presses, is silent as Julian Assange’s Calvary for bringing real truth unfiltered to the public moves on to its next station; the macabre Gothic architecture of the Old Bailey.
The Tories appeared remarkably tolerant in the days when Extinction Rebellion were causing general disruption to the public. But to threaten the interests of billionaire paymasters is something against which the entire political class will unite. At a time when the government is mooting designating Extinction Rebellion as Serious Organised Crime, right wing bequiffed muppet Keir Starmer was piously condemning the group, stating: “The free press is the cornerstone of democracy and we must do all we can to protect it.”
It is surely time we stopped talking about “free press”, as if it was Thomas Paine or William Cobbett distributing pamphlets. Print media is now the subject of phenomenonal ownership concentration. It broadcasts the propaganda of some very nasty billionaires to a shrinking audience of mostly old people. The same ownerships have of course moved in to TV and Radio and increasingly into new media, and have a political stranglehold over those who control state media. At the same time, the corporate gatekeepers of Facebook and Twitter purposefully strangle the flow of readers to independent online media. The idea of a “free press” as an open marketplace of democratic ideas has no real meaning in modern society, until anti-monopoly action is taken. Which is the last thing those in power will do.
Quite the opposite, they are actively seeking to eliminate dissent even from the internet.
I do not want permanently to close down the Sun or the Telegraph; neither do Extinction Rebellion. But their excellent action is an important opening to the debate about controlled public narrative, not least on climate change. The highly paid stenographers to power have been quick to protest. Murdoch mouthpiece David Aaronovitch tweeted out that in fact 99% of the time there was no editorial interference from Murdoch. But that is the point. Murdoch employs reliable right wingers like Aaronovitch; he does not need to tell them what to write.
Show me the Murdoch journalist who has more than once published about the human rights abuses against the Palestinians. Murdoch ejected his own son from his media empire because James was insufficiently enthusiastic about the slow genocide of the Palestinians, and does not believe that the market will magically fix climate change.
The corporate media selects its mouthpieces. Scotland has become an extreme example, where 55% of the population support Independence, but only about 5% of state and corporate media “journalists” support Independence.
Julian Assange has been a light in this darkness. Wikileaks have opened a window into the secret world of war crime, murder and corruption that underlies so much of the governance we live under throughout the “free” world. Coming in the wake of the public realisation that we had been blatantly lied into the destruction of Iraq, there was a time when it seemed Assange would lead us into a new age where whistleblowers, citizen journalists and a democratic internet would revolutionise public information, with the billionaire stranglehold shattered.
That seems less hopeful today, as the internet world itself corporatised. Julian is in jail and continuing today is an extradition hearing that has been one long abuse of process. The appalling conditions of solitary confinement in which he has been kept in the high security Belmarsh Prison, with no access to his legal team or a working computer, to his papers or to his mail, have taken a huge toll on his physical and mental health. The UN Special Representative has declared he is subject to torture. A media which is up in arms about the very dubious attack on Navalny, has no emotion for state torture victim Assange other than contempt.
It is constantly asked by Julian’s supporters why the media do not see the assault on a publisher and journalist as a threat to themselves. The answer is that the state and corporate media are confident in their firm alliance with the powers that be. They have no intention of challenging the status quo; their protection from those kicking Assange lies in joining in with the kicking.
I hope to be in court today, and throughout the extradition hearing. The public gallery of 80 has been reduced to 9 “due to Covid”. 5 seats are reserved for Julian’s family and friends, and I have one of these today, but not guaranteed beyond that. There are just 4 seats for the general public.
Journalists and NGO’s will be following the hearing online – but only “approved” journalists and NGO’s, selected by the Orwelian Ministry of Justice. I had dinner last night with Assange supporters from a number of registered NGO’s, not one of which had been “approved”. I had applied myself as a representative of Hope Over Fear, and was turned down. It is the same story for those who applied for online access as journalists. Only the officially “approved” will be allowed to watch.
This is supposed to be a public hearing, to which in normal times anybody should be able to walk in off the street into the large public gallery, and anyone with a press card into the press gallery. What is the justification for the political selection of those permitted to watch? An extraordinary online system has been set up, with the state favoured observers given online “rooms” in which only the identified individual will be allowed. Even with approved organisations, it is not the case that an organisation will have a login anyone can use, not even one at a time. Only specifically nominated individuals have to login before proceedings start, and if their connection breaks at any point they will not be readmitted that day.
Given these restrictions, I was very conscious I may need to queue from 5am tomorrow, to get one of the 4 public places, if I drop off the family list. So I went this morning at 6am to the Old Bailey to check out the queue and work out the system. The first six people in the queue were all people who, entirely off their own bat, without my knowledge and with no coordination between them, had arrived while London slept just to reserve a place for me. I was swept up by their goodness, their trust in me and by their sheer humanitarian concern about Julian and the whole miscarriage of justice. I chatted cheerily with them for a while, then came back to write this, but just got round the corner when I burst into floods of tears, overwhelmed by all this kindness.
I have to pull myself together now and get into that court.
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My coverage of Julian’s case is entirely dependent on your financial support. Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
Once Navalny was in Berlin it was only a matter of time before it was declared that he was poisoned with Novichok. The Russophobes are delighted. This of course eliminates all vestiges of doubt about what happened to the Skripals, and proves that Russia must be isolated and sanctioned to death and we must spend untold billions on weapons and security services. We must also increase domestic surveillance, crack down on dissenting online opinion. It also proves that Donald Trump is a Russian puppet and Brexit is a Russian plot.
I am going to prove beyond all doubt that I am a Russian troll by asking the question Cui Bono?, brilliantly identified by the Integrity Initiative’s Ben Nimmo as a sure sign of Russian influence.
I should state that I have no difficulty at all with the notion that a powerful oligarch or an organ of the Russian state may have tried to assassinate Navalny. He is a minor irritant, rather more famous here than in Russia, but not being a major threat does not protect you against political assassination in Russia.
What I do have difficulty with is the notion that if Putin, or other very powerful Russian actors, wanted Navalny dead, and had attacked him while he was in Siberia, he would not be alive in Germany today. If Putin wanted him dead, he would be dead.
Let us first take the weapon of attack. One thing we know about a “Novichok” for sure is that it appears not to be very good at assassination. Poor Dawn Sturgess is the only person ever to have allegedly died from “Novichok”, accidentally according to the official narrative. “Novichok” did not kill the Skripals, the actual target. If Putin wanted Navalny dead, he would try something that works. Like a bullet to the head, or an actually deadly poison.
“Novichok” is not a specific chemical. It is a class of chemical weapon designed to be improvised in the field from common domestic or industrial precursors. It makes some sense to use on foreign soil as you are not carrying around the actual nerve agent, and may be able to buy the ingredients locally. But it makes no sense at all in your own country, where the FSB or GRU can swan around with any deadly weapon they wish, to be making homemade nerve agents in the sink. Why would you do that?
Further we are expected to believe that, the Russian state having poisoned Navalny, the Russian state then allowed the airplane he was traveling in, on a domestic flight, to divert to another airport, and make an emergency landing, so he could be rushed to hospital. If the Russian secret services had poisoned Navalny at the airport before takeoff as alleged, why would they not insist the plane stick to its original flight plan and let him die on the plane? They would have foreseen what would happen to the plane he was on.
Next, we are supposed to believe that the Russian state, having poisoned Navalny, was not able to contrive his death in the intensive care unit of a Russian state hospital. We are supposed to believe that the evil Russian state was able to falsify all his toxicology tests and prevent doctors telling the truth about his poisoning, but the evil Russian state lacked the power to switch off the ventilator for a few minutes or slip something into his drip. In a Russian state hospital.
Next we are supposed to believe that Putin, having poisoned Navalny with novichok, allowed him to be flown to Germany to be saved, making it certain the novichok would be discovered. And that Putin did this because he was worried Merkel was angry, not realising she might be still more angry when she discovered Putin had poisoned him with novichok
There are a whole stream of utterly unbelievable points there, every single one of which you have to believe to go along with the western narrative. Personally I do not buy a single one of them, but then I am a notorious Russophile traitor.
The United States is very keen indeed to stop Germany completing the Nord Stream 2 pipeline, which will supply Russian gas to Germany on a massive scale, sufficient for about 40% of its electricity generation. Personally I am opposed to Nord Stream 2 myself, on both environmental and strategic grounds. I would much rather Germany put its formidable industrial might into renewables and self-sufficiency. But my reasons are very different from those of the USA, which is concerned about the market for liquefied gas to Europe for US produces and for the Gulf allies of the US. Key decisions on the completion of Nord Stream 2 are now in train in Germany.
The US and Saudi Arabia have every reason to instigate a split between Germany and Russia at this time. Navalny is certainly a victim of international politics. That he is a victim of Putin I tend to doubt.
The UK state is of course currently trying to silence one small bubble of dissent by imprisoning me, so you will not have access to another minor but informed view of world events for you to consider. Yesterday I launched a renewed appeal for funds for my legal defence in the Contempt of Court action against me for my reporting of the attempted fit-up of Alex Salmond. I should be extremely grateful if you can contribute to my defence fund, or subscribe to my blog.
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Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
My new appeal for funds to continue my legal defence has now reached £42,300 of the £75,000 target. I am extremely grateful to all of the 2,053 people who have so far contributed to the top-up. The moral support from those who cannot afford to contribute is also very greatly appreciated. That is now £117,300 of the £150,000 needed in total.
I have today received a bill from my legal team for £60,563.40 in fees to date in defending the contempt of court charge against me for my reporting of the Alex Salmond trial.
In addition to this, I have paid a separate legal fee for a QC to draft a petition for a court to consider whether the accusers’ anonymity should be continued by the courts, given their continued participation in a high intensity public campaign against Alex Salmond and effectively against the verdict of the jury. I have also paid to commission the Panelbase poll proving that my blog was in no way a primary source of information for those who believe they have identified accusers.
In total to date £69,052 has been spent. Which means about £5,000 remains in the pot, and the main trial itself is currently scheduled for 21 January.
The Crown has adopted a policy of simply blocking everything the defence seeks to do: objecting to my witnesses, objecting to my own affidavit, objecting to the release of documentary evidence. In consequence there have been three preliminary hearings. Those who listened to last week’s hearing will know that these have resolved none of the questions at issue. The Crown constantly shifts its ground, or submits draft positions, and has not yet clarified the evidential basis for its charges, while blocking my evidence. They have objected to all of my witnesses being heard, and to the opinion poll being considered.
This has the appearance of what is known in the US as “Lawfare”. My financial resources are drained and there is a huge impact on me in terms of my time taken up – frankly very much worse than I anticipated – and an emotional strain too.
As a reminder, this is the list of documents from the Salmond case disclosure my which defence is seeking to access, and which the Crown is refusing to release.
To be plain, this is material which I know for certain to exist. I am not fishing. The Crown has admitted its existence in forbidding Alex Salmond’s own solicitors from releasing it to anybody, (including Alex). Much of this was kept out of the Salmond trial itself as “collateral evidence”, as I explained here.
The most likely next court hearing is to request the Court orders the Crown to produce this material. In effect, each court hearing costs about £20,000 in legal fees. It is now plain that I need at least double the £75,000 originally raised to get me through the trial. I am really very sorry to have to ask again, but I therefore need to request further contributions to my defence fund at this point.
I am deeply conscious that, the legal battle having caused my blogging output and depth of research to fall these last few weeks, there has been a drop-off in readership and in subscriptions, so I am handicapped in making this appeal precisely by the very legal battle I am appealing to try to fight. I also do realise these are hard times for people. I do not want anyone to give anything if it causes them even the slightest hardship.
I will post updates on progress from this renewed funding appeal. I have asked the lawyers to produce a version of their fee note which can be published.
Click HERE TO DONATE if you do not see the Donate button above
Alternatively:
Account name
MURRAY CJ
Account number 3 2 1 5 0 9 6 2
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