On the 9th and 10th of July, Julian Assange will face a two day appeal hearing in the UK Courts.
Last month, the High Court in London granted him permission for an appeal on the grounds that the United States has failed to properly assure the British courts that Assange would get adequate freedom of expression protections if he were extradited.
Free press groups welcomed the High Court’s decision to allow Julian Assange to appeal his extradition, stressing once more the indictment’s disastrous implications for press freedom and calling on the U.S. government to finally end this dangerous prosecution.
Stay tuned for more information and how you can get involved in the fight to free Assange.
May 20, 2024 – The UK High Court has granted Julian Assange permission to appeal his extradition order, specifically on the grounds that the United States has failed to properly assure the British courts that Assange would get adequate freedom of expression protections if he were extradited.
The appeal permission is narrow but provides the first real chance for the substantive issue of whether the First Amendment would protect Assange can be aired in court. The parties have been given until May 24 to submit a proposed outline for how such an appeal hearing would be argued.
Beginning early this morning, hundreds of supporters gathered outside the Royal Court of Justice, along with free press groups, journalist unions, and other public figures in attendance.
Live stream from outside the Royal Courts of Justice
Edward Fitzgerald KC opened the proceedings for the defense by announcing that the defense accepts the U.S. assurance regarding the death penalty, because it is unequivocal and would be binding on U.S. courts — the U.S. simply stated clearly that Assange would not be charged with a death penalty offense.
As to the assurance regarding Julian Assange’s right to assert protections guaranteed under the First Amendment, Fitzgerald maintained it offers no guarantee whatsoever. The assurance given “does not promise that the applicant can rely on the First Amendment. Merely that he can raise and seek to rely on it.”
Furthermore, Fitzgerald argued,
“The court has made a finding on the basis of Mr Kromberg’s statement that ‘concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protection under the First Amendment, at least as it concerns national defense information’”
“The court’s express finding was that ‘If such an argument were to succeed, it would (at least arguably) cause the applicant prejudice on the grounds of his non-US citizenship (and hence, on the grounds of his nationality)’”
There is a wide range of cases in which U.S. prosecutors have given clear, express, and unequivocal assurances when they want to. “We have nothing of that sort here,” Fitzgerald said. “All we have is ‘he may raise and seek to rely on’.” He went on to cite specific promises common to assurances.
“The U.S. states that the so-called assurance is adequate because the judges will take ‘solemn notice’ of it. But the U.S. accepts that the assurance ‘cannot bind the court’ ‘Taking solemn notice’ of an assurance that was expressly stated not to bind the courts cannot operate as a guarantee that the court will apply U.S. law in a way that permits the Applicant to rely on the First Amendment, despite his foreign citizenship.”
Mark Summers KC continued for the defense, warning the court that the U.S. will try to raise that nationality and citizenship are different, a new argument that they should have raised beforehand, and in court, which they did not.
As anticipated by Summers, James Lewis KC for the prosecution argued that the assurance regarding Julian Assange’s First Amendment rights is that Julian will not be discriminated against based on his nationality, but instead on his citizenship. He argued, for the first time, that this is an important distinction.
He claimed that “the applicability of the Applicant’s First Amendment argument requires inter alia the components of (1) conduct on foreign (outside the United States of America) soil; (2) non-US citizenship; and (3) national defense information.”
“Its restriction in scope [of the assurance] is not by reason of his [Julian’s] nationality, but by virtue of the fact that he is a foreigner, carrying out actions on foreign soil,” Lewis argued.
As to the ‘scope’ of the protection, Lewis maintained that “this court has already observed that the counts are of a different nature”, which implies that the First Amendment protections can be selectively applied, depending on the count in question.
He tried to substantiate this argument by saying that Chelsea Manning had no First Amendment protection, so therefore anyone complicit with her would not have First Amendment protection either.
After Lewis concluded, the lawyer for the UK Home Secretary, Ben Watson, addressed the court briefly, only to convey that Home Secretary, who has the final say on extraditions, accepts the diplomatic assurances provided by the United States and says the court should do the same.
Summers returned to address Lewis’s arguments regarding nationality vs citizenship. “Nationality is wider,” he said. “You can be a national without being a citizen, you cannot be a citizen without nationality.”
“In addition to being a non-US citizen Mr Assange is a non-US national as well. Whatever the distinction may be, and we don’t accept that there is any… it has no bearing whatsoever”
“The exclusionary rule has a number of limbs to it… Mr Lewis said in terms he will be excluded because he is a foreigner, carrying out acts on foreign soil concerning national security… Well, he is being excluded in part because he is a foreigner [as opposed to if he were a US citizen]”
Concerning the question of scope, Summers concluded that it’s not arguable that it is allowed to violate people’s rights under certain conditions. The protection is an absolute. If Assange would be discriminated against at trial, the extradition must be barred.
The proceedings were completed with the address from Fitzgerald, who stressed once more the wording of the assurance: “He will be permitted to raise and seek to rely on it.” This is not the same as granting Mr Assange the right to raise First Amendment arguments, Fitzgerald concluded.
The proceedings adjourned for 20 minutes, after which the judges returned with a ruling.
The High Court ruled that it is unsatisfied with U.S. assurances and granted Julian Assange leave to appeal on grounds 4 (violation of free speech rights) and 5 (prejudiced at trial due to nationality). The other ground (related to the death penalty) has been rejected.
“We spent a long time hearing the United States putting lipstick on a pig but the judges did not buy it” – @Stella_Assange reacting to the breaking news of the courts granting #JulianAssange the right to appeal his extradition
— Free Assange – #FreeAssange (@FreeAssangeNews) May 20, 2024
Stella Assange’s statement after the Court’s ruling
The lawyers will have until 2pm on May 24 to file an agreed case outline.
“This is a victory. This means that the issues at the very heart of this case – freedom of expression, press freedom – will get consideration by these courts” – @rebecca_vincent. Director of Campaigns for @RSF_Inter
— Free Assange – #FreeAssange (@FreeAssangeNews) May 20, 2024
Rebecca Vincent of RSF addresses the crowd upon hearings conclusion
Free press organizations around the world welcomed the High Court’s decision, stressing once more the prosecution’s disastrous implications for press freedom and calling on the U.S. government to finally end it.
April 16, 2024 — Invited by the U.K.’s High Court to give assurances that would address those grounds of appeal which have been found to have “real prospect of success”, the U.S. has today issued a diplomatic note in which it gives a non-assurance in relation to the First Amendment, and a standard assurance in relation to the death penalty.
On the matter of Julian Assange’s First Amendment rights, which the prosecutor asserted he does not enjoy because he is not a U.S. citizen, the U.S. has said that could “seek to raise” them, i.e. argue that the rights should not be disallowed.
Julian’s wife, Stella Assange said:
“The United States has issued a non-assurance in relation to the First Amendment, and a standard assurance in relation to the death penalty. It makes no undertaking to withdraw the prosecution’s previous assertion that Julian has no First Amendment rights because he is not a U.S citizen. Instead, the US has limited itself to blatant weasel words claiming that Julian can “seek to raise” the First Amendment if extradited. The diplomatic note does nothing to relieve our family’s extreme distress about his future — his grim expectation of spending the rest of his life in isolation in US prison for publishing award-winning journalism. The Biden Administration must drop this dangerous prosecution before it is too late.”
Media organizations and their representatives have criticized the U.S. decision to continue its pursuit of Julian Assange and called on President Biden to end the prosecution.
The US has refused to guarantee First Amendment rights (to free speech) to Julian #Assange. Extradition should be refused on these grounds. Better still @POTUS could make good his suggestion of offering a plea deal or dropping the charges. Until he does, journalism is at risk.
⚠️ No matter what assurances the US has provided in the final stages of extradition proceedings against Julian Assange, the grounds of his appeal deserve proper consideration by the UK High Court. We’ll be back in court to monitor the hearing on 20 May. It’s time to #FreeAssange! pic.twitter.com/3d921VEOjR
As previously announced a hearing will be held on May 20, 2024 to decide whether these U.S. “assurances” are sufficient and to give a final ruling on permission to appeal.
April 6, 2024 — Last month, the UK High Court issued a judgment that could grant Julian Assange limited permission to appeal his extradition to the United States but first gives the U.S. government an opportunity to give “assurances” to potentially head off an appeal altogether.
Press freedom organizations and journalistic unions welcomed the decision to avoid extradition for now, but they reiterated their calls for the U.S. to drop the charges.
UK High Court ruling
In the judgment issued on March 26, the UK High Court decided that three of Assange’s requested nine grounds of appeal have merit and invited the U.S. government and U.K. Home Secretary to offer “assurances” to address those grounds before giving its final ruling.
The court has ordered assurances be made that Assange will be granted First Amendment protections, that he will not be prejudiced at trial by reason of his nationality, and that he will not receive the death penalty.
The ruling gives the U.S. three weeksto provide assurances that would address these grounds. If the U.S. declines to do so, the court will grant Assange right to appeal on those grounds. If, as is expected, assurances are given, there will be a hearing on May 20, 2024, to decide if the assurances are sufficient and to give a final ruling on permission to appeal.
Press freedom groups warn threat to journalism remains
The court’s decision to avoid extradition for now was welcomed by press freedom organizations and journalistic unions across the globe, which reiterated their calls for the U.S. to drop the charges.
Trevor Timm, executive director of Freedom of the Press Foundation (FPF), said:
“We are glad Julian Assange is not getting extradited today. But this legal battle is far from over, and the threat to journalists and the news media from the Espionage Act charges against Assange remains”.
Jodie Ginsberg, CEO of the Committee to Protect Journalists, said:
“It is time that the U.S. Justice Department put an end to all these court proceedings and dropped its dogged pursuit of the WikiLeaks founder.”
Jameel Jaffer, executive director of the Knight First Amendment Institute, said:
“The UK High Court’s ruling presents the U.S. government with another opportunity to do what it should have done long ago—drop the Espionage Act charges. Prosecuting Assange for the publication of classified information would have profound implications for press freedom, because publishing classified information is what journalists and news organizations often need to do in order to expose wrongdoing by government.”
Simon Crowther, Legal Adviser at Amnesty International, said: “Instead of allowing this protracted legal process to continue, the US should drop all charges against Assange”.
Whistleblower and source protection group WHISPeRurged the British court not to trust U.S. assurances:
“As attorneys who have represented several defendants under Espionage charges in media leak cases, we can speak to these issues from direct experience. Our clients have been denied both the right to present a First Amendment defense and the supposedly humane prison conditions promised by the Department of Justice. The U.S. government simply cannot make any meaningful assurance that any defendant can rely on First Amendment protections under an Espionage Act prosecution, much less a foreign citizen.”
Alice Jill Edwards, UN Special Rapporteur on Torture, said:
“Irrespective of any assurances that may soon be provided by the US authorities, many of the questions that have been raised are within the ambit of the European Court of Human Rights.”
“We remain concerned that there is still no certainty an appeal against his extradition will proceed, and even if it goes ahead that only a small number of grounds of appeal are possible. (…) The only clear path to freedom is for the US to drop the charges.”
Expert panel reacts to appeal decision
Assange Defense convened a panel of experts to discuss the court’s ruling, which delayed Assange’s extradition, but only to allow the U.S. government to give assurances as to how Julian would be treated if he were extradited.
Panelists Marjorie Cohn, former president of the National Lawyers Guild; Kevin Gosztola, journalist and author of “Guilty of Journalism: The Political Case against Julian Assange”; Stephen Rohde, constitutional lawyer and author; and Chip Gibbons of Defending Rights & Dissent discussed the ruling, what it means, and what comes next.
Supporters outside the courtroom awaiting Assange’s appeal decision (Source)
March 26, 2024 — The UK High Court has issued a judgment that could grant Julian Assange limited permission to appeal his extradition to the United States but first gives the U.S. government an opportunity to give “assurances” to potentially avoid an appeal.
The court found that Assange has a “real prospect of success” on 3 of the 9 grounds of appeal:
Ground iv) that Extradition is incompatible with article 10 of the European Convention on Human Rights (freedom of expression); “If (as might be the case) Mr Assange is not permitted to rely on the First Amendment then it is arguable that his extradition would be incompatible with article 10 of the Convention.”
Ground v) If extradited, Mr Assange might be prejudiced at his trial by reason of his nationality, as “foreign nationals are not entitled to protections under the First Amendment”.
Ground ix) Extradition is barred by inadequate specialty/death penalty protection: “The Secretary of State agrees that, if he is extradited, Mr Assange could be charged with offences that carry the death penalty and that there is nothing then to prevent the death penalty from being imposed.”
The ruling gives the U.S. three weeks to provide assurances that would address these grounds. If the U.S. declines to do so, the court will grant Assange right to appeal on those grounds. If, as is expected, assurances are given, there will be a hearing on May 20, 2024, to decide if the assurances are sufficient and to give a final ruling on permission to appeal.
Julian’s wife Stella Assange spoke outside the court following the announcement:
The court’s decision to avoid extradition for now was welcomed by press freedom organizations and journalistic unions, which reiterated their calls for the U.S. to drop the charges.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said:
‘The UK High Court’s ruling presents the U.S. government with another opportunity to do what it should have done long ago—drop the Espionage Act charges. Prosecuting Assange for the publication of classified information would have profound implications for press freedom, because publishing classified information is what journalists and news organizations often need to do in order to expose wrongdoing by government. It’s long past time for the U.S. Justice Department to abandon the Espionage Act charges and resolve this case.”
“A temporary reprieve is clearly preferable to an extradition that would have taken place in the coming days. However, the conditionality around the grounds of appeal, which are contingent on the examination of US government assurances that he will not face the death penalty and has the right to free speech, mean the risks to Assange and press freedom remain stark.
“Assange’s prosecution by the US is for activities that are daily work for investigative journalists – finding sources with evidence of criminality and helping them to get their stories out into the world. If Assange is prosecuted, free expression the world over will be damaged.”
Whistleblower and source protection group WHISPeR urged the British court not to trust U.S. assurances:
We regret that the Court declined to properly consider the political nature of this prosecution under what is a textbook case of a political crime, and continues to take a blinkered approach on the remaining questions it has left open for the May 20th hearing. We again strongly urge the High Court to apply the greatest possible skepticism of U.S. assurances. The U.S. government has certainly not earned a presumption of credibility on these issues.
As attorneys who have represented several defendants under Espionage charges in media leak cases, we can speak to these issues from direct experience. Our clients have been denied both the right to present a First Amendment defense and the supposedly humane prison conditions promised by the Department of Justice.
The U.S. government simply cannot make any meaningful assurance that any defendant can rely on First Amendment protections under an Espionage Act prosecution, much less a foreign citizen. The legal question is at best unresolved by U.S. courts, and the precedent is ominous. The Pentagon Papers case, the fullest test of the Espionage Act against the First Amendment to date, resulted in a Supreme Court opinion that pointedly left open the possibility that the U.S. government could punish the publication of government documents. Any assurance that Assange would be allowed to mount a meaningful First Amendment defense would be diametrically opposed to the U.S. Justice Department’s own position in previous media leak cases: that the Espionage Act does not allow a jury to even consider a First Amendment defense. In Thomas Drake’s case, the government sought to ban the use of words like “whistleblowing” in front of a jury. In prosecuting Daniel Hale, the government argued that his appeals to the First Amendment were merely “academic musings,” and “interesting thought exercises, but irrelevant to the case at hand”.
Trevor Timm, executive director of Freedom of the Press Foundation (FPF), said:
“We are glad Julian Assange is not getting extradited today. But this legal battle is far from over, and the threat to journalists and the news media from the Espionage Act charges against Assange remains. Assange’s conviction in American courts would create a dangerous precedent that the U.S. government can and will use against reporters of all stripes who expose its wrongdoing or embarrass it. The Biden administration should take the opportunity to drop this dangerous case once and for all.”
Jodie Ginsberg, CEO of the Committee to Protect Journalists, said,
“We are glad that the extradition of WikiLeaks founder Julian Assange to the United States will be delayed. His prosecution in the U.S. under the Espionage Act would have disastrous implications for press freedom. It is time that the U.S. Justice Department put an end to all these court proceedings and dropped its dogged pursuit of the WikiLeaks founder.”
PEN International and English PEN cosigned a statement,
Journalists and publishers sometimes risk their lives to uncover truths that powerful entities seek to conceal. By recognising that the UK and the US have not provided sufficient assurances, the High Court has proven that the concerns and fears expressed by Assange, his family and his legal team are well-founded.
Yet the court rejected some of Assange’s arguments, including that his extradition was political. We remain deeply concerned by the fact that the US was granted more time to make diplomatic assurances – despite Assange facing the risk of serious human rights violations if extradited to the US – and of the dangerous prospect of Assange’s extradition going ahead.
Once again, we urge the US authorities to drop all charges against Assange and withdraw their extradition request. We further call on the UK authorities to refrain from extraditing Assange, to release him from Belmarsh prison immediately, and to ensure he is reunited with his family.
We stand unwaveringly alongside Assange and fellow publishers and journalists around the world who courageously defend truth and justice in the face of adversity.
Simon Crowther, Legal Adviser at Amnesty International, said:
“The High Court’s decision today leaves in limbo Julian Assange and all defenders of press freedom — but the fight continues. The US lawyers now have a second opportunity to make diplomatic assurances which the court will consider in May. Instead of allowing this protracted legal process to continue, the US should drop all charges against Assange.
“The UK remains intent on extraditing Assange despite the grave risk that he will be subjected to torture or ill-treatment in the US. While the US has allegedly assured the UK that it will not violate Assange’s rights, we know from past cases that such ‘guarantees’ are deeply flawed — and the diplomatic assurances so far in the Assange case are riddled with loopholes.
“Unfortunately the court rejected some of Assange’s arguments, notably that the extradition was political. The court paused proceedings on the other grounds so that the US can make diplomatic assurances which it will then reconsider.
“The US must stop its politically motivated prosecution of Assange, which puts Assange and media freedom at risk worldwide. In trying to imprison him, the US is sending an unambiguous warning to publishers and journalists everywhere that they too could be targeted and that it is not safe for them to receive and publish classified material — even if doing so is in the public interest.”
Chip Gibbons, Defending Rights & Dissent Policy Director, said:
We are glad Assange will have another opportunity, however narrow, to appeal his extradition. We share the UK Court’s concern over comments from US prosecutors that Assange may be denied First Amendment protections on the basis of his nationality. This is the press freedom case of the 21st century and a verdict against Assange will have an impact on press freedom broadly. The idea of putting him on trial for newsgathering and then saying he can’t rely on the First Amendment is an unacceptable prospect.
We are nonetheless disturbed that the UK courts have failed to recognize this is a case about press freedom and political expression, as well as granting the US government yet another chance to amend its flawed, defective extradition request.
Assange’s persecution for his journalistic activities is not only an affront to our First Amendment, it is a clear violation of international human rights law. It constitutes an attempt to extradite an individual for a purely political offense, something that should be impermissible. The extradition should be rejected on these bases, yet Assange has been refused an appeal on these grounds.
The ball is, yet again, in the Biden Administration’s court. They should uphold the First Amendment by dropping the charges. As the party driving the extradition hearings, they can at the very least walk away from the lengthy legal processes in the UK, ending this once and for all.
We are at a critical stage in the Assange case and we will be escalating our calls for the Biden Administration to uphold the First Amendment and defend global press freedom by dropping this Trump-era prosecution of a journalist for journalistic activities.
Karen Percy, media federal president of the leading Australian journalism union Media, Entertainment & Arts Alliance, said,
Julian Assange’s bid to overturn the extradition order is still alive but his legal limbo continues.
We remain concerned that there is still no certainty an appeal against his extradition will proceed, and even if it goes ahead that only a small number of grounds of appeal are possible.
Julian Assange needs more than assurances from the US about how he will be treated. The only clear path to freedom is for the US to drop the charges, end its prosecution and allow him to be released from jail.
Next month will mark five years of detention in Belmarsh Prison, where his health and mental wellbeing has worsened recently.
Media freedom continues to be imperilled the longer this case drags on.
The stories published by WikiLeaks and other outlets more than a decade ago were clearly in the public interest. The ongoing prosecution is politically motivated with the intent of curtailing free speech, criminalising journalism and sending a clear message to future whistleblowers and publishers that they too will be punished if they step out of line.
If the US government can extradite a citizen of another country, from anywhere in the world for publishing factual information it sets a dangerous precedent that will have a profoundly chilling effect on investigative journalism, discouraging journalists and whistleblowers from exposing vital information in the public interest.
We call on the Australian government to keep up the pressure on the US to drop the charges so Julian Assange can resume life as a free man.”
This is a synopsis of day 2. Read the full play-by-play here and our hearing highlight. Find all extradition coverage here.
February 21, 2024 — Wikileaks founder Julian Assange could face the death penalty for a prosecution based on ‘state retaliation ordered from the very top’, the High Court heard today.
Assange is accused by the US government of conspiring with army intelligence analyst Chelsea Manning to leak classified military documents online between January and May 2010.
The Australian is seeking permission to appeal a 2021 decision by a UK court to approve his extradition to the US, where he faces charges under the country’s 1917 Espionage Act.
The 52-year-old had initially won his fight against extradition on the grounds he was likely to kill himself if held under harsh US prison conditions.
But in December 2021 judges found the US authorities had given sufficient assurances to the UK that Assange would be treated humanely in an American prison, and overturned the decision.
Assange appealed against that ruling, but last June High Court judges upheld the decision to approve the US extradition order, which was signed by then UK Home Secretary Priti Patel in June 2022.
If he is refused permission to bring a further appeal, Assange is likely to be extradited in the coming weeks to face trial for 18 charges, 17 of which fall under the Espionage Act. The charges include conspiracy to receive, obtain, and disclose classified diplomatic and military documents.
Assange’s lawyers say he faces up to 175 years in jail if convicted, but the US government claimed the sentence would probably be between four and six years. He has spent the last five years at Belmarsh maximum security prison in southeast London.
The charges against Assange relate to the 2010 release by WikiLeaks of 500,000 secret files detailing aspects of military campaigns in Afghanistan and Iraq and secret cables about Guantanamo Bay.
This included the notorious ‘Collateral Murder’ video, which showed the July 2007 killing by an American Apache helicopter crew of eleven civilians, including Reuters journalists Namir Noor-Eldeen, 22, and Saeed Chmagh, 40.
The video, recorded by the helicopter gunsight, showed the helicopter crew firing into a group of Iraqi civilian men in Baghdad after being given permission from a commanding officer, killing 11 men and seriously wounding two children.
Joel Smith, representing the US, disputed the claim from Assange’s legal team that the sentence Assange would face in the US would be ‘disproportionate’ and a breach of his human rights.
He dismissed the 175-year prison sentence Assange’s barristers said he would face if extradited as ‘calculated by simply totting up the maximum sentence for every single offense.’
Mr Smith added that Assange’s barristers had said he would face a sentence of 30-40 years.
He said: ‘Other cases involving unauthorized disclosures of classified information to the media have led to significantly lower sentences.’
He gave three examples where defendants were given sentences of 42, 48, and 63 months, despite the ‘maximum exposure’ in these cases running to as many as 130 years.
The maximum sentence given for the same offenses Assange is facing under the Espionage Act was 63 months.
He added that sentencing would follow guidelines, and would reflect consideration of aggravating and mitigation factors.
Mr Smith said the alleged offences were ‘extremely serious’ and that if the sentence was a lengthy one ‘that would reflect the fact his conduct had been aggravated.’
He added: ‘Looked at through an American lens the offense is grave.
‘Looked at through a UK lens the offence is grave. And entirely unprecedented.’
He gave a list of Assange’s alleged offending, including ‘the accusation of encouraging others to circumvent legal safeguards on information to provide information to WikiLeaks for dissemination.
‘The continuing pattern of illegally procuring and providing protected information to WikiLeaks for distribution to the public.
‘The recruitment of Manning and other hackers, the encouragement of Manning who was subject to the American equivalent of the Official Secrets Act, assisting her to crack a password.
‘The obvious point of naming sources, who were put in danger.’
He added: ‘That’s a sweep of offending. It’s beyond the scope of anything that any of the criminal courts in this country have had to grapple with.’
Mr Smith said that given ‘such grave and unprecedented criminality’ it could not be said that a lengthy sentence would be disproportionate.
Responding to the US case, Edward Fitzgerald, KC, repeated that Assange was being prosecuted on political grounds and that it was not legal to extradite him on this basis.
He said the absence of any mention of the political offense exception in the 2003 Extradition Act did not amount to disapplying it from individual treaties that include it.
He said: ‘The act is silent. You can’t read into that act a deliberate omission. You cannot say the act disapplies a provision that’s in every treaty we sign with other countries.
‘You can’t say the silence means it expressly disapplies its appearance in a treaty.’
He said the political offenses exception was included in almost every treaty the UK had signed, and that US, UN, and Interpol treaties always include this provision.
‘In what sense can it be properly said this [exception] is out of date? It’s not out of date.’
He also said that as a non-US citizen, Assange risked being denied rights available to a US citizen.
He said: ‘Mr [Mike] Pompeo said Assange wouldn’t have these rights because he’s a foreigner, and that’s evidence he might be prejudiced in the USA.’
This included, he said, US constitutional rights, including the First Amendment right which guarantees freedom of the press, which US citizens are entitled to.
He continued: ‘So there is a real risk, said to be 15 percent, he may well be prejudiced by that approach and put in a position where he’s discriminated against because of his status and loses his right that US citizens would have.’
Mark Summers, KC, another member of Assange’s legal team said there had been no reference to the fact the material he published exposed war crimes.
The barrister said this was ‘the exposure of a state-level crime’.
He said the barristers for the US authorities were dodging the issue when they accused Assange of questioning the probity of US prosecutor Gordon Kromberg when they alleged the extradition was politically motivated.
He said: ‘We don’t suggest that Mr Kromberg is a lying individual or that he’s personally not carrying out his prosecutorial duties in good faith.
‘We say that the prosecution and extradition is a decision taken way above his head. You can’t focus on the sheep and ignore the shepherd.
‘What happened is state retaliation ordered from the very top.’
Mr Summers said this was reflected in the fact Assange had been denounced at senior government level, and then-president Trump was drawing up plans to assassinate him.
He said: ‘It was submitted to you that the US government has acted at all times in good faith in bringing this prosecution.
‘We don’t understand how that can be advanced with a straight face in the face of evidence the president was planning on kidnapping and killing him.’
He also reiterated that Assange had gone to ‘extraordinary’ lengths in the year prior to publication to redact names from the documents and that he could not be held responsible for their eventual publication.
The barrister said the eventual publication of the names by third parties who gained access to the encrypted files was ‘Unintended, unforeseen and unwanted.
‘At best Mr Assange could be alleged to have been reckless in the provision of the key to Mr Lee. It would be an absurd allegation to make but that’s the highest anyone could place it.’
He added that there was ‘no proof at all that any harm actually eventuated’ to any of the people named in the leaked documents.
Mr Summers also returned to what he described as the ‘horrendous punishment’ awaiting Assange were he to be extradited to the US.
He said Assange would be imprisoned for the rest of his natural life, a punishment, he said, ‘that would shock the conscience of every journalist around the world.’
He said the courts in the UK should have carried out a balancing exercise on Assange’s actions to determine the public interest in the disclosures.
He noted that the Strasbourg court deemed ‘exposure of state-level crimes as the very highest level of public interest.’
‘The crimes being discussed here were real and ongoing and were happening then to real people. And the disclosures had the capacity and capability of stopping that happening, and they did.
‘Drone killings in Pakistan came to an end, the war in Iraq came to an end’.
He said that in a balancing exercise on whether the disclosures were in the public interest ‘colossal, ongoing, real criminal wrongdoing outweighs the risk of some harm to some of the criminals performing or facilitating the criminality.’
Judge Dame Victoria Sharp challenged him on whether all the people named in the leaked documents were criminals.
Mr Summers replied that ‘their names are in there because they have engaged in the criminality that’s been exposed.
‘The fact is there’s context to these names. They are the names of people who have facilitated America doing what the disclosures reveal them to have been doing.’
He added that even if they were innocent, the fact the disclosures protected people against practices like rendition and war crimes would outweigh the potential harm to them.
Mr Summers said there was no guarantee the US would not subject Assange to the death penalty in the event of his extradition.
He said: ‘We don’t understand why there is no usual death penalty assurance in this case.’
‘The consequences of it are that discharge must follow if they continue to decline to give it.’
Read the full report from day 2 of Julian Assange’s final bid to appeal his extradition here. Find all extradition coverage here.
Supporters outside the courtroom in London (FreeAssangeNews)
February 21, 2024 — In order to avoid the pesky press freedom issues that rights groups and media outlets everywhere are warning its Assange prosecution poses, the U.S. government has to claim all kinds of extraordinary falsehoods that fall apart under the mildest scrutiny.
Representing the U.S. today, CPS barrister Clair Dobbin had to argue that Julian Assange is not a journalist, that Chelsea Manning is not a whistleblower, and that the indictment of Assange is a narrowly focused punishment of the release of sources’ names rather than a wholesale assault on the freedom of the press.
Anything but a journalist
The U.S. is desperate to claim that Julian Assange is not a journalist. The prosecution of Assange has garnered global attention for many reasons, including that major media outlets around the world have condemned the charges as landmark threats to the First Amendment, so the U.S. needs to fix that image. The tactic they’ve chosen is to try to separate Julian Assange from other journalists. To keep mainstream journalists happy, but also to keep them from paying too much attention to the Assange case because it might threaten their jobs, the U.S. goes to great lengths to suggest Assange is anything but a journalist — a hacker, a spy, an activist, whatever it may be.
“The district judge rejected outright that [Assange] was to be treated as a journalist or akin to a publisher,” Dobbin declared.
“He solicited the bulk disclosure of classified information and was party to Ms. Manning’s theft of classified information,” Dobbin said, “and then indiscriminately and knowingly published to the world who acted as sources of information to the United States. It is these key facts that distinguish [Assange] from the New York Times and other media organizations; it is these facts that distinguish him.”
Julian Assange has a press card. He has many press cards — from the International Federation of Journalists, the European Federation of Journalists, and the Australian Media and Entertainment Arts Alliance. He has written and edited books and articles, he’s hosted an interview television show, and he’s published carefully redacted databases in close partnership with other media outlets around the world to break news in those outlets’ local regions.
He’s also won scores of journalism prizes, including the Walkley Award, the most prestigious award in Australian journalism and frequently referred to as the Australian equivalent of the Pulitzer Prize.
But even this misses a bigger point. The First Amendment isn’t just for journalists. Meaning it isn’t just for whomever this or that judge determines is a journalist either. The First Amendment protects types of activity, not types of people. It protects the freedom of the press, which includes newsgathering, reporting, and publishing alike.
Press freedom experts have warned time and again that the charges against Assange present a direct threat to this journalistic work. The New York Times, which hasn’t always been Assange’s most ardent defender, said the indictment “aims at the heart of the First Amendment.”
Mainstream reporters have said the indictment terrifies them. Pulitzer Prize-winning journalist Barton Gellman said:
I am very much worried that the precedent that the present US administration is trying to set with Assange is dangerous, and quite new in the American legal tradition. Assange is charged with asking for information, with receiving information, and with publishing information. And I don’t mind saying that those are exactly the things that I do. And there has never been a prosecution for espionage based entirely on publication. If that’s allowed to stand, there’s absolutely no reason why it couldn’t be used against the Washington Post or the New York Times or CNN.
Dobbin again tried to separate Assange from other journalists by focusing on his alleged agreement with source Chelsea Manning to uncover more abuses, publish more documents, and allegedly conceal her identity. “Entering into this agreement is what takes Assange well outside the activities of a responsible journalist.”
But other journalists do this kind of thing all the time. Journalism professor Mark Feldstein testified in 2020:
Feldstein confirmed that soliciting information is “standard journalistic behavior.” When teaching journalism, Feldstein talks about asking sources for evidence, actively seeking information, working with them to find documents that are newsworthy, and directing them as to what to find out. “It’s all routine,” he said.
Also routine are efforts to conceal sources’ identities. “Trying to protect your source is a journalistic obligation” Feldstein said, adding, “We use all kinds of techniques to protect them, including payphones, anonymity, encryption, removing fingerprints from documents, reporters do this all the time.”
As Gellman told the Committee to Protect Journalists, “If asking questions and protecting a source are cast as circumstantial evidence of guilt, we’ll be crossing a dangerous line.”
Chelsea Manning’s motives
Dobbin said it was “unrealistic to submit that” Chelsea Manning “gave any thought to specific disclosures she wanted to raise.” This couldn’t be further from the truth. Though the Espionage Act charges against her afforded no public interest defense during the merits stage of her court martial, Manning made a point to submit a personal statement to the court, in which she expounded at length on her crisis of conscience, her ultimate decision to make certain documents public, her desire for change and her careful selection of which databases would give the public the best window into the war on terror without putting her fellow soldiers at risk.
On her decision to release the Collateral Murder video, Manning said,
I hoped that the public would be as alarmed as me about the conduct of the aerial weapons team crew members. I wanted the American public to know that not everyone in Iraq and Afghanistan are targets that needed to be neutralized, but rather people who were struggling to live in the pressure cooker environment of what we call asymmetric warfare. After the release I was encouraged by the response in the media and general public, who observed the aerial weapons team video. As I hoped, others were just as troubled – if not more troubled that me by what they saw.
The State Department diplomatic cables were the only set of documents that Manning worried, initially, had the potential to cause damage. “Of the documents released, the cables were the only one I was not absolutely certain couldn’t harm the United States,” she said at first. She kept reading.
The more I read the cables, the more I came to the conclusion that this was the type of information that should become public. I once read and used a quote on open diplomacy written after the First World War and how the world would be a better place if states would avoid making secret pacts and deals with and against each other.
I thought these cables were a prime example of a need for a more open diplomacy.
She knew exactly which cables had which sensitivity levels, and she knew that it would be safe to release them. She acknowledged that “exposing this information might make some within the Department of State and other government entities unhappy,” but she knew that it wouldn’t cause actual harm.
Given all of the Department of State cables that I read, the fact that most of the cables were unclassified, and that all the cables have a SIPDIS caption, I believed that the public release of these cables would not damage the United States, however, I did believe that the cables might be embarrassing, since they represented very honest opinions and statements behind the backs of other nations and organizations.
Manning’s motive could hardly be clearer. But the government has to portray this desire to stop war crimes as a random act of anarchy — anything to take our eyes off of what was actually in those documents.
Will the High Court see through it?
Every major media outlet, press freedom group, and civil liberties organization can see the obvious: Assange is a journalist, Manning was a whistleblower, and the charges against Assange are dangerous. So far though, British courts have been willingly led astray, taking U.S. prosecutors at their word and plugging their ears to the world’s laments.
District Judge Vanessa Baraitser’s 2021 ruling, though it narrowly blocked extradition for the time being on health grounds, otherwise took every U.S. argument at face value and ignored the testimony of experts. Since then, even more evidence has come in revealing U.S. intentions. Eight months after Baraitser’s ruling, more than 30 former U.S. intelligence and national security officials confirmed to Yahoo News that the CIA had drawn up plans to kidnap and kill Julian Assange.
The story also revealed that the DOJ hurried a legal case against Assange just to get out ahead of a rogue CIA.
Some National Security Council officials worried that the CIA’s proposals to kidnap Assange would not only be illegal but also might jeopardize the prosecution of the WikiLeaks founder. Concerned the CIA’s plans would derail a potential criminal case, the Justice Department expedited the drafting of charges against Assange to ensure that they were in place if he were brought to the United States.
Three years have passed since Baraitser’s ruling. Assange’s health, which prevented him from even attending this week’s proceedings by video link, has deteriorated greatly. The indictment has already had a chilling effect, as journalists worry they could face charges and prospective whistleblowers with even fewer places to turn with their evidence of abuse.
The British High Court has a chance now to take another look at the facts in front of them, and to take an honest look at what they’ve been hearing from the prosecution and whether it passes the smell test.
This award-winning publisher, who painstakingly redacted names, worked with local outlets to ensure accuracy, and published evidence of war crimes…is just a reckless hacker?
This intelligence analyst in the U.S. Army, who combed over databases to select the documents most important for the public interest, and knew that doing so would put herself at great personal risk…gave no thought to what she released?
WikiLeaks editor Kristin Hrafnsson outside the courtroom in London
February 21, 2024 — Today is the second and final day in publisher Julian Assange’s final UK bid to appeal his extradition. Yesterday, the defense explained to the 2-judge panel why the High Court should reassess the District Judge’s ruling. The defense argued that the judge had failed to adequately assess whether Assange has been charged with a “political” offense and whether extradition should be barred on those grounds.
Another principle against extradition is “unforeseeable prosecution”; you cannot be prosecuted for a crime that you couldn’t be expected to know was a crime. Because the U.S. had never prosecuted a journalist for publishing truthful information in the public interest before, how could Assange have known that his journalism would be against the law?
Today we hear the U.S. case in response, arguing against Assange’s right to appeal his extradition order.
Judge Sharpe opened this morning by acknowledging audio and microphone issues: “We are aware there were technical issues that affected the ability for those in court to listen. This is extremely regrettable and is being investigated. If there are issues today that affect members of the press or in court or on a remote link, please do let us know so they can be investigated without delay.”
Claire Dobbin is the British prosecutor arguing on behalf of the United States. She said, “A refrain from yesterday is that much of the defense case was unanswered [by the district judge]. But the affidavit submitted by the U.S. addressed every aspect of the defense; his prosecution is based on the rule of law and evidence.”
“The charges might be unprecedented but what he did was also unprecedented.”
Dobbin: He solicited the bulk disclosure of classified information and was party to Ms. Manning’s theft of classified information, and then indiscriminately and knowingly published to the world who acted as sources of information to the United States.
Dobbin: It is these key facts that distinguish the appellant from the New York Times and other media organizations; it is these facts that distinguish him – not his political opinions.
Judge Sharp interrupts, says we’re going to have to pause the proceedings to ensure that the people in court 3 can hear. (Journalists and observers complained of audio issues again.)
Court resumes. Dobbin again for the U.S.: ‘The district judge rejected outright that the appellant was to be treated as a journalist or akin to a publisher, and she did so considering at length the evidence marshaled on behalf of the appellant about the value of some of the disclosures.’
Dobbin rejects the suggestion that this case is about punishing Assange for his political opinions. Says that the U.S. admin changed during this case but nonetheless, it remains on foot because the prosecutor in charge of the prosecution insists it is based on evidence, not politics.
Prosecution claims Assange isn’t a journalist, Manning isn’t a whistleblower
Review key arguments from the 2020 extradition hearing
Dobbin, trying to refocus judges after the defense case yesterday, notes the second superseding indictment expands the allegations against him to encompass the additional allegations of hacking
Assange published information that he knew was stolen classified information, Dobbin said. These documents disclosed to the world the names of human sources who provided information to the US, many of whom lived in war zones and authoritarian countries.
The effect of disclosure of unredacted names created “a grave and imminent risk” that people would suffer physical harm or arbitrary detention, she said. Damaged the work of security & intelligence services, & damaged the capability of U.S. forces, thereby endangering the interest of the U.S.
Dobbin spent much of the morning attempting to paint Assange as recklessly endangering sources, repeating over and over the hypothetical harm that they have never been able to prove when actually asked in court.
The prosecution elides some basic facts about how the unredacted cables came about, WikiLeaks’ redaction process, and efforts to protect sources.
Dobbin instead returns to the U.S.’s arguments from the initial extradition hearing, and attempts to portray Chelsea Manning as a nefarious hacker with Assange’s help, rather than a conscientious whistleblower.
Dobbin: The Department of Justice and presidents of both parties have long viewed the outing of intelligence sources as outside the scope of the First Amendment.
Dobbin trying to paint a picture of a narrow, restrained indictment that only deals with unredacted names.
Dobbin, returning to the alleged attempt to crack a password, says: ‘Entering into this agreement is what takes Assange well outside the activities of a responsible journalist.’
Dobbin: The material he published attracts no public interest whatsoever; his publication, as alleged, of the unredacted material wasn’t inexorable, it didn’t have to happen and that is what he is being prosecuted for.
Judge Johnson stops Dobbin before she moves on, and notes, ‘By the time he had published them – they had already been published by others.’
Dobbin: The allegation is that he was responsible for having material in the hands of others in the first place, and the district judge makes the point that he is free to litigate in the U.S.
Dobbin, not answering the question, said, “This court must proceed on the basis that these are the allegations against him.” The U.S. is blaming Assange for the actions of David Leigh & Luke Harding at the Guardian.
Dobbin moves on to arguments over the Extradition Treaty vs Act. Says the 2003 Act entirely reformed extradition legislation in this jurisdiction; it expressly removed the political offense exception, provides no provision for it.
Dobbin: If a statute is clear, then it applies regardless of the terms of any treaty.
Dobbin spending a long time on case law to insist the Treaty should be ignored in favor of the Act.
Judge Johnson warns she’s running low on time.
Dobbin arguing against the defense case that Assange is targeted for his political views or actions. Says the case “Does not permit a simplistic analysis – ‘my acts were political, therefore I am being sought for prosecution on account of my political opinion’.”
Dobbin effectively says that U.S. and UK governments/courts should just trust each other: ‘The starting position must be that the fundamental assumption of good faith with states where the UK has long relationships on extradition – US as one of the most longstanding partners of the UK.’
Dobbin again refers to Trump saying he loved WikiLeaks at one point, undermining the allegation that pressure was brought on prosecutors. (That was in 2016; in 2010 he said Assange should get the death penalty and in 2019 he indicted him)
Dobbin says the Yahoo News article on the CIA’s plans to kidnap/kill Assange is not “fresh evidence” because there was evidence before the judge about plots and plans at the embassy already and she rejected them.
Dobbin: ‘What was the nexus between the surveillance plans of the appellant and this extradition request? The appellant only comes before the UK courts upon Ecuador having rescinded diplomatic protection. He was only arrested upon the UK being invited into the embassy in order to do so and only comes before this court because of lawful proceedings instituted after. He is subject to these proceedings because of due process and ordinary process.
Dobbin, having it both ways with CIA spying: In any event [even if the CIA did spy], says nothing about the motivation for prosecution – even if there was a concern [i.e., spying] for the appellant in the Embassy, this does not detract from the objective basis for this prosecution.”
Of the Yahoo story, Dobbin said, ‘It’s not witness statement evidence or anything like that and in many respects, I am hesitant to address it.’
Dobbin notes “Article 10, which I am conscious is the key aspect of the application for permission.” (Article 10 of the ECHR)
On the defense point that Assange couldn’t foresee an unprecedented prosecution, Dobbin says, ‘Even if you were to take this at face value that it’s ordinary journalistic activity to solicit this information’, should reject the revelation of the classified names of sources
Dobbin focusing on the expanded computer intrusion charge in 2nd superseding indictment, effectively saying they needed that newer indictment to get away from the journalism issues of the case
Dobbin trying to paint Julian as different from a normal journalist: ‘It’s his complicity…going beyond receipt – it’s the encouragement and incitement to steal the material that puts the appellant at one end of the spectrum of gravity’
Once again, Feldstein in 2020: “Trying to protect your source is a journalistic obligation. We use all kinds of techniques to protect them, including payphones, anonymity, encryption, removing fingerprints from documents, reporters do this all the time.”
Pulitzer Prize-winning journalist Barton Gellman, who led the Washington Post‘s reporting on the Snowden documents, has long said that the Assange prosecution criminalizes activity that he engages in regularly:
“Assange is charged with asking for information, with receiving information, and with publishing information. And I don’t mind saying that those are exactly the things that I do.”
Gellman told CPJ, “If asking questions and protecting a source are cast as circumstantial evidence of guilt, we’ll be crossing a dangerous line.”
Dobbin claims that Chelsea Manning wasn’t a whistleblower because she responded to solicitation and just gave bulk datasets. Says it’s “unrealistic to submit that she gave any thought to specific disclosures she wanted to raise.”
That couldn’t be more wrong. Chelsea Manning has always been clear about her motives. In 2013, she said: “I hoped that the public would be as alarmed as me about the conduct of the aerial weapons team crew members.”
U.S. Espionage Act and UK Official Secrets Act
A key point of law in extradition cases: The prosecution needs to prove dual criminality, meaning that the allegations against Assange in the US would constitute crimes in the UK.
Dobbin: ‘This could be charged as conspiracy and aiding and abetting and under section 5 of the Official Secrets Act, which can apply to publishers; but the burden of proof is higher – must prove it was damaging and the person publishing had cause to believe it was damaging’
Judge Johnson queries her: If in this country, a journalist had information of very serious wrongdoing by an intelligence agency and incited an employee to provide that information, and it was provided and published carefully, would a prosecution be compatible with Article 10?
Dobbin: I’m not sure that it would give way to a straightforward answer…. There is no public interest defense and it’s not incompatible with Article 10
Dobbin effectively says that regardless of the public interest in such a case, if it was damaging then it would be prosecuted.
Dobbin: It is true the US authorities are careful about prosecuting when First Amendment rights are implicated this much…. Free speech is highly prized in America, which is why the US has gone a long way to distinguish the appellant’s prosecution from other media.
Dobbin: Those media outlets who went through the redaction processes have not been prosecuted.
[Note: this elides the fact that U.S.-based website Cryptome published the unredacted cables (even before WikiLeaks) and has never been asked to take them down or been prosecuted.]
Dobbin lengthily defends the district judge’s handling of issues with Article 7 of the ECHR (which says you can’t be charged with crimes that weren’t crimes at the time they were committed).
The discussion moves to whether Assange would be afforded First Amendment protections If sent to be tried in the United States. Judge notes that US Attorney Kromberg said he wouldn’t, which could conflict with Section 81b of the UK Extradition Act:
Dobbin: ‘We are not in any position to assess whether this is established [that it would conflict] as a matter of case law; it refers to a possible argument rather than a foundation that reaches the threshold in 81b.’
Judge Johnson: Do we have any evidence that a foreign national is entitled to the same First Amendment rights as a U.S. citizen?
Dobbin: I don’t think so, there was a lot of case law referred to but I don’t think there was case law on that point.
Barrister Joel Smith arguing for the US on sentencing enhancements in a potential U.S. trial.
“The evidence is that the applicant will be entitled to a fair and public hearing, within a reasonable time, before an independent and impartial tribunal”
Smith: Another matter, wasn’t developed orally but in writing, that is the possibility of aggravating evidence being placed before the court that the applicant would never have seen.
Seems to suggest we can’t decide sentencing issues now with the possibility of more evidence.
Moving on to Section 103 of the UK Extradition Act, which says, “If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.”
Discussion on this matter deals with the creation of the 2003 Extradition Act, and contemporaneous discussion of the ‘political offense’ exemption in the US/UK Treaty
The prosecution argues, ”There is no free-ranging discretion for the Secretary of State to refuse extradition” if they determine it to be a political offense
Judge: The US/UK treaty says you cannot extradite for political offenses. Hypothetically, if the Sec. of State finds it’s in violation of Article 4, they’re still required to certify it as valid?
Barrister acting on behalf of the Secretary of State for the Home Department: Yes
Prosecution now turns to the death penalty. Yesterday, the defense pointed out that more charges could be added that carry the death penalty, & that Chelsea Manning was charged with “aiding the enemy,” a death penalty offense (even though the US didn’t seek the death penalty for her)
Prosecution: Assange is not charged with treason or any such charge. Manning, who was, received a determinate sentence and nothing in her case suggests that the applicant here faces the genuine risk of the death penalty.
Judge Johnson: If the appellant is extradited, is there anything to prevent the charge of aiding and abetting treason from being charged?
Counsel: No
Judge: So if there is nothing to prevent it, do you accept that the sentence could be the death penalty?
Counsel: Yes
Judge Johnson: could there be any assurance to protect against that?
Counsel: Why should the prosecutors give an assurance when there is no real prospect it would happen? We say there must be a threshold reached otherwise in any case people could raise this in any technical case
SSHD barrister cont’d: … Here the evidence suggests a 30-40 year sentence. It would be difficult to offer assurances to prevent the death penalty from being imposed. But that still doesn’t mean the Secretary of State was wrong in refusing to prevent extradition.
Edward Fitzgerald QC for the defense, pushing back against the prosecution’s attempt to just focus on the 2003 Extradition Act. “There is powerful abuse jurisprudence that also allows us to look at this Treaty point,” he says.
Discussion continues over the 2003 Act’s omission of the Treaty’s political offense exemption: ‘They claim that the omission of the political offense was deliberate; it’s simply not the way an important issue like this can be determined – there can be all sorts of reasons’
Fitzgerald quotes the language used: “‘Extradition will not be allowed of people being prosecuted…accounted for by their race or political opinions.’ It’s the textbook definition of a relative political offense. He is saying there will be a pardon for a relative political offense”
Fitzgerald says it’s “ludicrous” to suggest the UK just stopped caring about political offenses when they made the 2003 Act because the UK “continues to implement this specific safeguard over and over again in treaties” with other countries.
Fitzgerald: When we are dealing with the right to life, the court should adopt an anxious scrutiny approach.
It is consistent with Article 5 to consider the Treaty.
We cannot say the courts are powerless to develop the law.
Mark Summers QC for the defense: “It is a feat for the US counsel to be on her feet for two and a half hours advocating for the prosecution for disclosure of this material without once referring to the fact that the material disclosed war crimes.”
Summers responds to Dobbin: ‘We don’t suggest that Kromberg is lying or that he is not personally carrying out his duties in good faith.
The decision to prosecute is a decision taken way above his head. What happened is state retaliation ordered from the very top.’
Summers on Dobbin’s response to the defense’s 3 points from yesterday:
That the prosecution was part of a state-level practice to secure impunity for unlawful conduct – you heard no answer for that
The US didn’t prosecute until the ICC took interest – no submission on that
Condemnation from the President – well the answer was that President Trump praised WikiLeaks, ignoring completely what we now know is that he was plotting to kill Assange
Summers, to the judges: It was submitted to you that the U.S. has acted in good faith and we don’t understand how that submission can be made with a straight face when there is evidence of plans drawn to kidnap and kill Mr Assange.
We pointed out the fresh evidence that the charges that were brought were done so to facilitate the secret rendition, Summers said. It was submitted that Mr. Assange is before the court because he has been subject to the due process of the law – doesn’t sound much like it to us
Summers comes back to Article 7:
“Espionage cannot be used to attack the press for publishing state secrets.”
“There is no suggestion anywhere in any authority that everyday journalistic activity was going to prompt criminal prosecution.”
On the password hash: If you engage in theft, you as a member of the press could be prosecuted for it, but nothing suggests anything to the effect that also renders publication unlawful or ‘out with the First Amendment’ or renders someone ‘not a journalist’.
‘All of those authorities say that you could be prosecuted for theft, but it doesn’t say — and no authority has ever said — that that takes out outside the scope of protection for publication.”
Discussion between Judge Sharp and Summers over which charges the defense is arguing engage Article 10 — Summers says the Manning-related charges, i.e. all except the non-Manning parts of count 2 (computer intrusion)
Summers: ‘If at the end of this process, count 2 is left standing, shorn of the Manning allegations, as it were, what will happen is an Article 8 submission’ because Assange has already served a sentence as long as that charge (5 years)
Defense: Can I ask why [the prosecutor] had such difficulty in answering [the judge’s] question when pressed on the implications of this decision for the press?
Summers: There must be proportionality in relation to the publications – all of the cases talk about the duty of the court to engage with the public interest of the publication itself
Summers: The US submission completely ignores the extraordinary efforts by WikiLeaks to redact – with partners – followed a year later by one of the media partners, not Assage, deliberately publishing in his book, the key to the encrypted internet file where the names existed.
That was followed by Mr Assange scrambling around to try to protect the names of those published, including calling the State Dept to put in place urgent and immediate measures to protect people named.
Then the fact that others published the material.
Summers, envisioning a case before the ECHR: This is how the harm would happen; unintended, unforeseen, unwanted – at worst, he could be reckless in giving the key to Mr Leigh; the Strasbourg court would recognize that there is no proof at all that any harm actually eventuated.
Says the court would accept there was damage [in giving the keys to Leigh], but that would be weighed against the other side of the scales, which is what Assange faces for publishing: 30-40 years (in the words of the prosecutor)
The Manning sentence (35 years) should be seen as a floor, not a ceiling, for what Assange would face.
That is a sentence that shocks the conscience of every journalist around the world
The vast public interest in the exposure and prevention of harm on a titanic scale – rendition, torture, murders, black sites, drone strikes, war crimes. Strasbourg regards the disclosure of state-level crimes as a matter of immense public interest.
All of the European cases protected by Article 10 involved state officials.
Crimes disclosed here were real, ongoing, and happening to people and the disclosure had the capacity of stopping that happening. Drone killings in Pakistan came to an end, and the war in Iraq came to an end.
Summers: the district judge failed to even undertake that analysis, and said this isn’t about journalism.
The role of the court on appeal is significant: there is no evaluative conclusion for the court to pay deference to; the restrictions on review of such decisions have no application here. You must assess it de novo. Mr Assange is entitled to a court that will make that assessment
That’s the close of the defense submission in court.
Judge Sharp: We will reserve our decision, pending written submission from the parties.
The U.S. has until 4:30pm tomorrow for a submission on Manning’s sentence. The defense has until March 4 to submit its speaking note though it’s requested asap.
February 20, 2024 — Julian Assange’s barrister told the High Court, ‘It’s difficult to conceive of a disclosure of greater public interest’ than the information the Wikileaks founder is accused of unlawfully disclosing.
Assange is accused by the US government of conspiring with army intelligence analyst Chelsea Manning to leak classified military documents online between January and May 2010.
The Australian is seeking permission to appeal a 2021 decision by a UK court to approve his extradition to the US, where he faces charges under the country’s 1917 Espionage Act. The 52-year-old had initially won his fight against extradition on the grounds he was likely to kill himself if held under harsh US prison conditions.
But in December 2021 judges found the US authorities had given sufficient assurances to the UK that Assange would be treated humanely in an American prison, and overturned the decision. Assange appealed against that ruling, but last June High Court judges upheld the decision to approve the US extradition order, which was signed by then-UK Home Secretary Priti Patel in June 2022.
If he is refused permission to bring a further appeal, Assange is likely to be extradited in the coming weeks to face trial for 18 charges, 17 of which fall under the Espionage Act. The charges include conspiracy to receive, obtain and disclose classified diplomatic and military documents. Assange’s lawyers say he faces up to 175 years in jail if convicted.
Mark Summers KC, representing Assange, told the court that the material published on WikiLeaks exposed ‘state-level criminality’ by the US. This included, he said, exposing practices like extraordinary rendition, torture, and war crimes. ‘Exposure of criminality is obviously in the public interest,’ Mr Summers said. He told the court that Chelsea Manning had been acting as a whistle-blower when she passed the documents to Assange, and that the underlying leak was therefore ‘specially protected’ under Article 10 of the European Convention on Human Rights (ECHR).
Article 10 protects an individual’s right to freedom of expression. Mr Summers said the publisher of that material should be afforded similar protection, and that Assange, as a member of the public who was simply handed the material by Manning, should not face prosecution.
He said: ‘The court is clear that there can be cases of exposing criminality where the interest and need for the public to know the content of the disclosure is such as to outweigh the duty of confidentiality for Article 10 purposes.’
‘The sheer weight of the public interest means the disclosure in this case eclipses all else. It eclipses secrecy, and eclipses the high risk of harm to those doing this.’
He added: ‘It’s difficult to conceive of a disclosure of greater public interest than that which occurred in this case. ‘That public interest would eclipse all else, and in Mr Assange’s case all the more easily than for Ms Manning because of course Mr Assange is not under the duty of secrecy.
‘He never signed the Official Secrets Act, or American equivalent, and Strasbourg clearly recognizes the difference between those who are and are not under secrecy.’
Mr Summers said that in her original January 2021 decision the judge had ‘failed to undertake the Article 10 balance. She didn’t, and it’s a glaring legal error.’ He conceded that the leaks did result in three individuals being named, but described ‘the extraordinary steps that were taken to redact, and the unforeseeable escape from that net that occurred.’
He added that not only did the disclosures not result in any actual harm to any of the individuals named, but by contributing to the ending of the Iraq war they had a positive impact overall.
Mr Summers also told the court that a prosecution on the basis of publication of state secrets was unprecedented. He said there were numerous examples of state secrets being published in the US, including disclosures that included the names of individuals, but that publishing these had never before resulted in prosecution in the US.
‘There is a practice in the US of national security journalism. ‘It is concerned on occasions with the publishing of names, and it’s never been met with prosecution before so far as publishers were concerned.’
He added that this was also the case even where the disclosure resulted in ‘actual violence’ to people named within it. The barrister said as a result ‘if somebody had asked in 2010 if this was going to result in an espionage prosecution, the answer is there has been no prior prosecution for any publishing of state secrets, on that or any other ground.’
He said Assange faces ‘an allegation of engaging in criminality in order to extract state secrets. That’s happened plenty of times before. It’s never attracted prosecution’.
As a result, he said it would have been ‘wholly unforeseeable’ that Assange might have been opening himself up to prosecution under the Espionage Act when he published the material on Wikileaks in 2010.
This meant, he said, that the prosecution was a ‘flagrant violation’ of Article 7 of the ECHR, which stipulates that ‘no one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed.’
Mr Summers told the court: ‘On the state of the evidence the judge had as to American law, American prosecutorial practice and American non-prosecutorial practice, there was a flagrant violation of Article 7 before her. It was her duty to engage with it and she didn’t’ In summary, he said that ‘above all Strasbourg will record Mr Assange was exercising Article 10 rights of the Council of Europe area, where these alleged offences occurred, carrying out journalistic work of the highest importance.’
‘The court will have regard to the sheer magnitude of the sanction he faces for doing that. He now faces the sentence of imprisonment that will last the rest of his natural life.
‘The court will have regard to the sheer chilling effect that that the kind of treatment will have on others. ‘Had the District Judge engaged with that at all we would respectfully submit that the result would have been different.’
He added: ‘For the avoidance of doubt, we also say that the penalty in this case is so off the scale that of itself it engages Article 3 as a grossly disproportionate sentence.’ Article 3 of the ECHR states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Mr Summer told the court this includes disproportionately long prison sentences.
Read the full report from day 1 of Julian Assange’s final bid to appeal his extradition here.Find all extradition coverage here.
February 20, 2024— The prosecution of Julian Assange should be seen within the context of the United States’ efforts to prevent its own war crimes from being investigated and prosecuted. It’s an extraordinary effort to silence a critic for taking evidence of the crimes of war out of the SCIFs and into the ICC.
Mark Summers QC, arguing for the defense, pulled no punches in describing the importance of the documents WikiLeaks revealed. “These were the most important revelations of criminal U.S. state behavior in history,” he said, referring to the Afghan and Iraq War Logs, the State Department Cables, and the Guantanamo Bay Detainee Assessment Briefs published in 2010 for which Assange is now being tried.
The Collateral Murder video, documenting U.S. Apache helicopter fighters gunning down reporters and children in Iraq, is “the most important revelation since Abu Ghraib.”
“The cables Assange published disclosed extrajudicial assassinations, rendition, torture, dark prisons, and drone killings,” Summers said. The Guantanamo Bay files, showing the treatment of detainees, were described to the court as a “colossal criminal act.” On the Afghan and Iraq documents, the evidence showed allegations of “extraordinary seriousness.”
“What was being disclosed by the publications,” Summers said, “was criminality which permeates, was tolerated by and was facilitated by the American government.”
But Summers’ key point was not merely that these documents have been used to inform the public, though they have certainly done that, about the nature and detail of the horrors of these wars the United States worked to keep secret. Just as importantly, Summers argued, these documents have been used in other courtrooms, in foreign courts where they’ve been used to establish that war crimes have been committed and to find evidence of rendition and torture.
Recall Assange’s initial extradition hearing, in which we heard testimony about the extensive and unprecedented usefulness of WikiLeaks’ releases in finally bringing justice in courts around the world.
Human rights attorney Clive Stafford-Smith testified in September 2020:
Clive Stafford Smith, a U.S.-U.K. dual national and the founder of Reprieve, which defends prisoners detained by the U.S. at Guantánamo Bay and others in secretive detention localities around the world, testified about the importance of WikiLeaks material in their litigation. He first discussed the utility of WikiLeaks disclosures in litigation in Pakistan relating to drone strikes and the “sea change” in attitudes towards US drone strikes in Pakistan.
Regarding rendition, assassinations, torture exposed in WikiLeaks documents, Stafford-Smith said, “Speaking as a U.S. citizen, it is incredibly important that it stopped … I feel that my country’s reputation was undermined and criminal offenses were taking place.”
“The litigation in Pakistan would have been very, very difficult and different” if it weren’t for WikiLeaks disclosures.
John Goetz testified about using the documents to confirm CIA torture:
Giving an example of the types of stories that WikiLeaks releases assisted with, Goetz explained had been investigating the story of Khalid el-Masri, a German citizen who was kidnapped by the CIA in Macedonia, extraordinarily rendered to a black site in Afghanistan where he was detained and tortured in 2004. This wasn’t known at the time, so Goetz searched the documents for el-Masri’s name, saw that he had been brought to Afghanistan, and found the CIA kidnappers “who’d forced el-Masri onto a military plane, sodomized him and sent him” to Afghanistan.
Goetz tracked down the CIA agents responsible in the United States, interviewed them, and reported the story. Following that broadcast, a Munich state prosecutor issued an arrest warrant for the 13 CIA agents. But, Goetz said, “It turns out the arrest warrant was never actually issued to the United States.” When he saw the State Department cables, he discovered that the U.S. had pressured the German prosecutor to issue the warrant in a jurisdiction where the perpetrators didn’t live, threatening “repercussions” otherwise.
There are many more examples from the initial extradition proceedings:
Summers also said that the disclosures brought about the “cessation of some of the practices that they revealed,” potentially referring to the 2011 revelation that after WikiLeaks cables in 2010 documented war crimes by U.S. soldiers in Iraq, the Iraqi government refused to grant the U.S. military immunity going forward, leading the U.S. troops to ultimately withdraw from Iraq entirely.
Because the U.S. refuses to operate without impunity. Look no further than its actions at the International Criminal Court (ICC), the first time the court looked into crimes committed by the U.S. in Afghanistan. International human rights lawyer Susan Akram wrote in September 2020,
Claiming the ICC’s investigation into alleged war crimes by U.S. forces in Afghanistan poses a national security threat, President Donald Trump issued an executive order on June 11 effectively criminalizing anyone who works at the ICC. Its lawyers, judges, human rights researchers and staff could now have their U.S. bank accounts frozen, U.S. visas revoked and travel to the U.S. denied.
The following October, the new chief prosecutor at the ICC “deprioritized” the investigation of U.S. offenses in the conflict, deciding to instead focus only on crimes committed by the Taliban and the Islamic State.
Summers referenced these actions specifically. “The UK and the U.S. have taken very different paths since the end of the conflicts in Afghanistan and Iraq,” he said. “The UK has engaged in a public inquiry. The U.S. has taken another path. It has insulated officials from the ICC, it has conferred immunity from prosecution within the U.S., and it has classified such evidence as it exists under state secrecy laws.”
The documents that Assange and WikiLeaks made public provide evidence for potentially hundreds of criminal actions like those investigated by the ICC.
“The fact that the U.S. had been seeking to impose global impunity should be a red flag for the motives for the prosecution of the person who disclosed those very crimes,” Summers said. This is a paradigmatic example of state retaliation for the exercising of political opinion.
The U.S. considered going even beyond prosecution. As Yahoo Newsreported in September 2021, more than half a year after the district judge’s January 2021 ruling — meaning this is new evidence since then, all the more reason to grant an appeal for judges to properly assess it in context — the CIA drew up plans to kidnap and even kill Julian Assange while he was under political asylum in the Ecuadorian Embassy in London.
Against the background of obstructing anyone investigating these disclosures, the ICC investigation, and U.S. efforts to obstruct it, Summers said, “the evidence now shows that the U.S. developed a plan to either kill or rendition Mr. Assange to the USA.”
“There was a plan to kidnap and poison Mr. Assange from within the embassy. There were red flags everywhere.”
February 20, 2024, — Julian Assange’s two-day hearing at the UK High Court begins today, as a two-judge panel will listen to arguments as to whether Assange should be allowed to appeal his extradition on the grounds that his prosecution is politicized and unprecedented and would prevent a fair trial.
Foreign journalists barred from UK proceedings
AD Executive Director Nathan Fuller, who has been accredited to cover each previous portion of the hearing, was denied remote access. He will provide coverage here based on updates from our team on the ground:
For this hearing, potentially Julian Assange’s last in the United Kingdom, the Courts have denied access to all reporters outside of England and Wales, despite the fact that this case has implications for journalists in every country around the world.
We weren’t sure if Julian would be appearing in court today. His barrister Edward Fitzgerald confirms he will neither attend in court nor watch by videolink, as he is too ill.
Defense: politicized prosecution is barred by the Extradition Treaty
Fitzgerald outlines the chief arguments he’ll make in this 2-day hearing
Fitzgerald: Assange faces real risk of grossly “disproportionate penalty” if sent to the United States, with total potential imprisonment at 175 years. The Extradition Treaty would allow the US to amend or add charges which could expose Julian Assange to the death penalty.
We are back to some of the very first arguments made in this extradition hearing back in February 2020, about extradition and political offenses. The US/UK Treaty (PDF) bars political offenses. The 2003 Extradition Act does not do so explicitly.
Fitzgerald has been reviewing cases where the Treaty (as opposed to the Act) has been applied to give “justiciable rights” in the past
Fitzgerald has been explaining that the U.S. use of the Espionage Act is a classic “political” offense, and so should be barred under the Treaty. All of the charges allege he “obtained, received and disclosed national defense information”, making this a clearly political case.
Fitzgerald has been taking the court through case law in extradition cases between the UK and various other countries, all finding that variations on accusations of espionage have all been deemed “pure political offenses”
In any event, Fitzgerald says, the charges are clearly at least “relative political offenses” because of the “political motivation” attributed to Assange, seen in the phrases “non-state hostile intelligence service”, “waging cyber war against the United States”, etc.
Fitzgerald notes that the District Judge accepted that Assange had “relevant political opinions” as testified to the court by defense witnesses Prof. Rogers, Noam Chomsky, and Daniel Ellsberg, with Rogers testifying that Assange did in fact induce a change in government policy
The crucial question is whether to rely on the Treaty, which bars extradition for political offenses, or the Act, which doesn’t. Fitzgerald notes the Act does not explicitly allow them either; it’s simply silent on the question. Reviews case law on conflicts between Treaty & Act.
Mark Summers now arguing for the defense. Journalists and observers in the overflow room complain of extremely poor audio quality and occasional interruptions to the video feed.
Summers reviews the accepted evidence. The cables Assange published disclosed extrajudicial assassinations, rendition, torture, dark prisons, and drone killings.
These cables have been relied upon by foreign courts to establish war crimes for government officials and have been relied upon by Strasbourg to find evidence of rendition and torture.
Summers: The evidence before the judge is that the disclosures brought about the cessation of some of the practices that they revealed.
Collateral Murder, which was described to the judge in unchallenged evidence, is “the most important revelation since Abu Ghraib”, and sparked international outrage
The Guantanamo Bay files show the treatment of detainees, described to the court as a “colossal criminal act”
On the Afghan and Iraq documents, the evidence showed allegations of “extraordinary seriousness” and Mr Assange was invited to address the UN about this.
“These were the most important revelations of criminal U.S. state behavior in history” – unchallenged evidence before the court.
Summers: The district judge acknowledges none of this evidence in her judgment.
There is an extensive case law on exposing state criminality, which qualifies as a political act where that criminality is endemic, is directed from the highest levels of society and enjoys political protection within that society.
Summers: The disclosures in this case satisfy every single iteration of the test – what was being disclosed by the publications was criminality which permeates, was tolerated by and facilitated by the American government
Summers: The district judge did rule out personal or financial motives – she recognized that what was going on here was the intentional exposure of criminality. See page 147 of her judgment (PDF).
That equates in law to opposition to the machinery, authority, or government of the state – see case references.
Note for example the authorities are not concerned solely with corruption; exposing the complicity of government officials in murder; the case law understands that you can expose the crimes against others – you don’t have to be the victim of the crimes yourself.
Summers warns that the US is going to argue that this is all prohibited territory – because there is no evidence the crimes were actually committed. He makes four points in response:
1. Not a reflection of the judge’s decision 2. Doesn’t reflect the law 3. Doesn’t reflect any logic – this was the US’s own material about their own conduct 4. The courts have found these allegations to be true, including European Court
The evidence before the district judge went one way: Mr Assange is being prosecuted for those exposures, and they are seeking to prosecute him to silence him.
There is a class of cases where state retaliation is straightforward – they use the criminal justice system to prosecute those disclosing. (Cites 5 cases.)
All of them concerned various states where the state retaliated by using the criminal justice machinery to silence them.
Reviews the case of Yu, a union worker who exposed corruption in the state-run Chinese airplane factory where she worked. She was as a result arrested, forced to admit she organized workers, charged, and detained until she refused to refrain from any future revelations.
Summers: The Court grappled to whether what she had done had amounted to the expression of a political opinion and, without doubt, found that it had
Yu showed she had been charged because the police had imputed political opinions.
Yu is reflective of all cases in which the nature of the state retaliation is a prosecution for the disclosures in which it is assumed as axiomatic that that is connected to the disclosures
Summers: While some cases may be difficult and some require inferential reasoning between exposure and state retaliation on the other, these cases aren’t. This is a paradigmatic example of state retaliation for the exercising of political opinion.
Summers: Unfortunately the district judge addressed none of this evidence. She only briefly engaged with the compelling circumstantial evidence as to the US motivations lying behind this prosecution, called it “pure conjecture” without addressing or considering evidence
Summers: the UK and the US have taken very different paths since the end of the conflicts in Afghanistan and Iraq.
The UK has engaged in a public inquiry.
The US has taken another path: it has insulated officials from the ICC, it has conferred immunity from prosecution within the US, and it has classified such evidence as it exists under state secrecy laws.
Of course, seeking impunity for torture and war crimes is in violation of customary international law.
The fact that the US had been seeking to impose global impunity should be a red flag for the motives for the prosecution of the person who disclosed those very crimes.
Summers: the language of US officials that they would take any measures necessary to protect that impunity – is another red flag.
But the district judge didn’t mention any of this.
CIA targets Assange for attempting to hold US accountable
Nor did she mention the US stance when the ICC opened the formal investigation, which prompted a string of attacks on states who might cooperate with the ICC; including threats by the US national security advisor to prosecute anyone who cooperated with the ICC’s investigation.
Summers: 6 years went by (since WikiLeaks’ disclosures) without prosecution. The judge did not consider what specifically triggered the government into action after those years of non-prosecution
The judge knew US officials denounced Mr Assange as a ‘political actor.’
Memorably, they include the director of the CIA describing WikiLeaks as a non-state hostile intelligence agency; saying Assange had made common cause with dictators, and accused him of taking down America.
The judge did acknowledge that the CIA had been hostile to Mr Assange but dismissed it on the grounds that the CIA doesn’t speak for the administration. Of course, the director of the CIA is a member of the executive.
In fairness to the judge – when she dismissed the suggestion of a hostile non-state intelligence agency – she like everyone else, had no idea it was a phrase with legal significance; no one in the defense team had any reason to suggest that the term had legal significance
Yahoo News revealed later that it did have legal significance.
She went on to conclude there was no presidential animosity (she had ignored Trump’s 2010 “death penalty” comment) – that conclusion is almost laughable now that we know from the evidence that President Trump had sought detailed options on how to kill Mr Assange in 2017.
Against the background of obstructing anyone investigating these disclosures, the ICC investigation and obstructing it, the evidence now shows that the US developed a plan to either kill or rendition Mr Assange to the USA
Summers: There was a plan to kidnap and poison Mr Assange from within the embassy.
There were red flags everywhere.
The judge thought there was nothing fishy about the timing of the extradition request. Whether she was wrong or not on the evidence she had, new evidence (the Yahoo News story) shows that prosecution was commenced to provide a framework for the proposed kidnap and rendition of Mr Assange
The thrust of this argument is that Assange could not have been reasonably expected to know that he could be prosecuted for publishing in the public interest because no one has been prosecuted for publishing in the public interest before.
Journalists had never before been prosecuted under the Espionage Act. Entirely unpredictable that a member of the press would be prosecuted contrary to longstanding practice. Judge’s analysis of entirely flawed because, contrary to authority, she passed the issue over to the US.
This was wrong for 2 reasons:
1. It was her duty to decide whether Article 7 was violated;
2. And even if she could abrogate that to the US, she had to be satisfied that the Fifth Amendment operates in the same way as Article 7 – and it does not.
Summers: Law must be foreseeable and it must protect against arbitrary prosecutions
Summers: National security leaks to the media are routine in Washington – this was the unchallenged evidence the judge had.
The publishing of those national security leaks is equally routine. There are reporters in Washington who only report on national security matters.
Leakers and whistleblowers have been prosecuted – see the case of Morrison, for example, just as here journalists have been prosecuted. But there has never been a prosecution for the obtaining or publishing of state secrets.
Summers: According to the evidence of a witness that had been agreed, this prosecution crosses “a new legal frontier” – and this was the tenor of all of the evidence that the judge heard.
Witnesses told the judge that even when the act was amended in 1950, nothing in the Espionage Act infringes upon freedom of the press.
There had in fact never been a prosecution of anyone from outside of the government for obtaining and publishing state secrets
Judge: Was there evidence of the publication of large names of human sources?
Summers: Yes, there is an individual called Mr Hay who had done precisely that. It is one of the cases relied upon by the US in their grounds of opposition.
That case concerned the revocation of his passport.
That was the limit of state action taken against him.
Court is back in session. Summers still arguing for the defense. Says he’s been asked for examples of where anyone had been prosecuted for revealing the names of individuals.
Summers notes the New York Times published the Pentagon Papers, and the judge in this case actually heard from the whistleblower in that case, and he told her that that publication had included names and he had taken the decision not to redact those names.
Summers: [Ellsberg] was prosecuted because he was a state agent; the Times were never prosecuted
Summers: In the 6 years of inactivity (non-prosecution of Assange) 2010-2017, many outlets published this very set of publications & materials. In particular, Cryptome published this material in the US and it’s still there, and they’ve never been prosecuted or asked to remove.
There is a statute that addresses the deliberate disclosure of US intelligence sources and it is deliberately restricted to state officials; you cannot be prosecuted under it as a non-state official.
There has never been a prosecution of someone for revealing names — cites one case, says and in that case, there was evidence of violence against those whose names were exposed.
The primary point there is no American case which has sought to prosecute publishers who publish state secrets.
The Times case was a civil action where the Supreme Court held that they could not be restrained from publishing state secrets – even stolen state secrets
Summers: In the district judge’s view, this was a matter to be determined by the American courts under the 5th Amendment. We disagree. It was her duty to determine if Article 7 was engaged, and if so, not to extradite.
Summers says that since the district judge’s decision in this case in 2021, there have been other cases with clear guidance from this court about decisions such as this.
The notion of “leave it all to the requesting state” was rejected in these cases.
Judge Sharp asks: Are you saying that Article 10 applies to all acts in the indictment?
Summers: Yes – I will take them each in turn
Article 10 protects freedom of expression. Case law has established some national security exceptions. Some back and forth, with judge first asking about how Article 10 applies to Chelsea Manning as the whistleblower.
Summers says whistleblowers like her do get Article 10 protection
The judge asks if the defense argues that Article 10 applies to Manning here only when balanced against the state’s legitimate security interest or that Article 10 covers any publication at all.
Summers says there’s a balance at play, and if appropriate, the whistleblower is protected.
Discussion moves to a whistleblower’s choices for disclosure, ‘official’ or ‘internal’ channels contrasted with ‘alternative’ ones.
The expectation of the court is that the whistleblower will use internal channels that are realistically available to them. But the court recognizes that there are circumstances where “direct external reporting” is justified
Summers: Ms Manning was exposing apex-level crimes which were condoned by the US military, and only direct reporting would work
Satisfying the other criteria for Article 10 protection, that the information be true: Ms. Manning revealed her information unedited and it was authentic – and was true and not only believed it to be true but has been verified to be true by courts around the world
Third, on motive: Manning was acting in good conscience. No one has ever suggested anything other than good conscience.
Exposing crimes is in the public interest
As to whether the information is truly in the public interest: the information in question documented abuse of office, illegal conduct, or wrongdoing – all obvious issues of public interest. Exposure of state criminality is squarely at the highest level of public interest disclosures
The court at this stage will balance the interest in your [the whistleblower’s] disclosure against the duty you have violated.
It’s a balance between the importance of the disclosure & the obligation to protect secrets, like with Manning, and the court is clear that there can be cases where the interest and need for the public to know the content of the disclosure outweighs the duty of confidentiality.
The court talks about a democratic system where the government needs to be subjected to public scrutiny.
Summers: As far as Manning was concerned, the public interest in her disclosures outweighed the obligation.
Judge: You argue that with regard to the names of sources?
Summers: Yes and I will get there.
The evidence in this case is that no harm has actually been proved to have occurred – there is no allegation that anyone named has actually come to harm. This is an important matter so far as this balance is concerned for Strasbourg.
The sheer weight and monument of the disclosures in this case, it eclipses the duty of secrecy and the hypothetical risk of harm to those who were doing all of this.
Related reading: testimony on WikiLeaks releases in bringing justice and accountability around the world
Showing how important these documents are: Pakistan High Court relied on this information, and the ICC is utilizing these disclosures to investigate war crimes.
Summers says the defense believes the court would strike this balance in favor of Ms Manning in a whistleblower context if the question was legally before them.
So the question follows if Article 10 protects the disclosure of Manning to Mr Assange, despite her obligations of secrecy and risk of harm, how can Article 10 prohibit Assange from receiving and publishing that material to the public?
What would the European Court of Human Rights think?
If it was ever seriously ventilated, the ECtHR would look at special protections for whistleblowers, but then also for publishers.
It would recognize the constitutional watchdog role of the free press; the right of the public to receive and the press to impart information.
It would recognize the importance of accountability for government action in secrecy.
It would recognize the scope of public interest and ensure proper functioning of political democracy.
Exposures in this case, in addition to risking harm to those undertaking all of this criminal activity, brought about the end of drone killings in Pakistan; & brought change to the rules of engagement in Iraq to prevent the kind of machine gun killing we saw in Collateral Murder.
The [ECHR] court would understand that these disclosures in the end contributed to the end of the Iraq war. All of that would play into the balance and the outcome would be precisely the same [for Assange] as it had been for Ms Manning.
It is difficult to conceive of a disclosure of greater public interest than that that took place in this case. That public interest would eclipse all else.
All the more easily for Mr Assange than Ms Manning — because he was not under any duty of secrecy. And Strasbourg clearly recognizes the difference,
Then there was a back and forth between High Court Judge Sharp and defense lawyer Summers about whether the district judge addressed these issues or not — she addressed Article 10 but not the public interest.
Judge says the public interest could have been taken into account with these disclosures but without the inclusion of names — basically says WikiLeaks didn’t have to release unredacted names to achieve this public interest.
Summers: Strasbourg [meaning ECHR] can look at that and consider that it was never intended; there was a huge amount of evidence of how that disclosure happened as a result of the unforeseeable action of one individual journalist at the newspaper that was involved
Judge Sharpe mentions indiscriminate disclosure which was condemned by the Guardian and others.
Summers says the problem is that the judge never undertook this balancing act which would weigh these issues against each other, including the fact no harm has come from the disclosures.
What the judge did acknowledge, Summers notes, is that Mr Assange was publishing and seeking to bring about change – and Strasbourg would recognize this as well.
ECHR would recognize that soliciting leaks (“curious eyes never run dry”) is protected newsgathering activity.
Countless examples of ‘most wanted lists,’ and witnesses said that is normal, unobjectionable newsgathering activity; an inherent part of protected press freedom
Summers continues, imagining for the court what the European Court of Human Rights would say about aspects of the allegations. Concludes that the only balance in this case is public interest in disclosure against risk of harm if the crimes are disclosed.
End of Article 10 discussion and the end Summers’ submissions. Ed Fitzgerald continues for the defense.
A fair trial in the United States?
The defense argues for many reasons that Assange can’t get a fair trial in the United States.
US prosecutor Gordon Kromberg said that the government may argue at a trial for Assange in the US that “foreign nationals are not entitled to protections under the First Amendment”
Fitzgerald notes that it’s not just the prosecutor; Pompeo said it too: he has no First Amendment rights.
It’s a chilling prospect – if you are a foreigner then you don’t have any rights.
Moved on to a discussion of potential sentencing in the US, including the question of whether ‘enhancement’ could be applied (such as a ‘terrorism enhancement’ like the one given to alleged WikiLeaks Vault 7 source Joshua Schulte, leading to his 40-year prison sentence).
Related reading: US government officials’ bias against Assange
The bigger point is that Vault 7 was what led to Mr. Pompeo going off the deep end on 7 March 2017, saying WikiLeaks is a non-state hostile intelligence agency, saying Assange’s arrest is a priority, initiating surveillance through UC Global, & on 21 December they request his provisional arrest.
This is all a hectic and angry reaction to the publication of Vault 7 for which Mr Schulte received a sentence of 40 years in prison. It is clear, we say, that the publication of Vault 7 was of particular concern to the US authorities.
Fitzgerald argues that a US court may increase a sentence up to the statutory maximum even in relation to other conduct that is not charged or relied on in the current indictment — for example, Vault 7 publications.
Fitzgerald then returns to the revelations that the CIA considered killing or kidnapping Assange. He stressed the importance of looking at this plot in the context of Pompeo calling Assange and WikiLeaks a “non-state hostile intelligence agency,” and that viewed together there is sufficient evidence to suggest Assange could be targeted in this way.
Finally, Fitzgerald argues that these facts should also be considered in the context of the so-called “assurances” the U.S. has given the courts about what type of conditions Assange could face if extradited, including that he won’t face the death penalty and that he could potentially serve out his sentence in an Australian prison. These “assurances” contain their own caveats that undermine them, and the U.S. has reneged on such promises in the past.
The U.S. could potentially add charges, related to Vault 7 or otherwise, that could expose Assange to the death penalty. The government “assuring” the court it would never do that is the same one that drew up plans to poison him.
With that, the court adjourned for the day. Court returns tomorrow at 10:30am GMT.
February 19, 2024 — Julian Assange returns to court tomorrow and Wednesday, Feb. 20-21, at the Royal Courts of Justice in London, as a two-judge panel on the UK High Court listens to his final plea to appeal his extradition from the United Kingdom to the United States.
The judges’ ruling will not approve or deny Assange’s extradition but rather it will decide whether Assange should be granted a full appeal hearing on these issues at all.
Over the course of the two-day hearing, Assange’s lawyers will present the arguments that they believe are worthy of reevaluation, and the Crown Prosecution Service barristers acting on behalf of the U.S. government will be given time to respond. While previous appeal hearings dealt with Julian’s mental health, his likely prison conditions, and whether extradition would put him at unjust risk of suicide, this appeal will deal much more with the nature of the charges against him and what he would face in the courtroom if sent to the United States.
The defense team intends to argue that this is a politicized prosecution, that Assange couldn’t receive a fair trial in the U.S., and that the charges against him are unprecedented.
Stella Assange has detailed these arguments in this thread:
1. Julian Assange should not be extradited to face prosecution and punishment for his political opinions exposing state criminality. Assange is being prosecuted for exposing US government criminality including war crimes and torture. There is extensive evidence of Assange’s political opinions on the importance of transparency in being able to hold governments accountable to deter future abuses. Extradition for political opinions is not allowed. The new evidence which emerged since the hearing of the C.I.A. plans to kidnap and/or kill Assange further supports this ground.
2. Julian Assange should not be extradited to face prosecution where the criminal law is being extended in an unprecedented and unforeseeable way. This is the first time in US history that a publisher has been prosecuted for obtaining or publishing (as opposed to leaking) US state secrets. The drafters of the Espionage Act did not intend for publishers to fall within its ambit, unchallenged expert evidence showed that receipt and publication of state secrets is routine, and that there was an ‘unbroken practice of non-prosecution’ of publishers.
The prosecution ‘crosses a new legal frontier’ and ‘breaks all legal precedents’. Extradition would therefore expose Assange to a novel and unforeseeable extension of criminal law. To extradite Assange would be a grave violation of Article 7 ECHR.
3. Julian Assange should not be extradited because his prosecution amounts to a grave violation of his right to free speech. Publishing state secrets can play a vital role in a democratic society and criminal prosecution and conviction for such publications will deter the press from playing this ‘public watchdog’ role. The US indictment against Assange criminalizes essential journalistic practices and imposes a disproportionate sentence (175 years). To extradite Assange would be a grave violation of Article 10 ECHR.
4. Julian Assange should not be extradited given that the US affirms that he may not be granted any First Amendment protections at all. The US said it would argue at trial that Assange would not get First Amendment protection (Free Speech protections) as he is not a US national (he is Australian). In other words, as a defendant he would be prejudiced at a trial as he is not a US citizen.
5. Extradition should be barred because Julian Assange will not receive a fair trial. He cannot mount a public interest defense. In the US system, there is a tradition of coercive plea bargaining via overcharging to secure a conviction. Julian Assange faces 175 years for his journalism. The jury pool will be drawn from people connected to US Government national security agencies and contractors, and therefore likely to be prejudicial to Julian Assange. They will also be sensitive to public comments made by the US President and C.I.A. Director, tainting the presumption of innocence. Evidence obtained through the inhuman and degrading treatment of Chelsea Manning, spying on his lawyers and the illegal removal of Julian Assange’s legal files from the Ecuadorean Embassy mean there is no prospect for a fair trial. To extradite him would be a grave violation of Article 6 ECHR.
6. The US-UK Treaty prohibits extradition for political offenses meaning Mr Assange’s extradition would violate the treaty, international law and amounts to an abuse of process (including Article 5 ECHR). The offenses with which Assange is charged are all formally “pure political offenses” and therefore are extradition-barred under article 4(1) of the US-UK Extradition Treaty. It is an abuse of process for the US to make an extradition request which is prohibited under the terms of the Treaty.
7. Renewed application to admit fresh evidence about US plans to kidnap/render/assassinate Mr Assange in 2017 – relevant to his Article 2 and 3 ECHR rights. The C.I.A. planned to kidnap and assassinate Assange. This indicates that he will be subject to inhuman and degrading treatment if extradited to the US. To extradite Assange would mean delivering him right into the hands of the very people who plotted to assassinate him.
8. The Extradition Treaty would allow the US to amend or add charges which could expose Julian Assange to the death penalty. Under the same facts alleged in the extradition request, Julian Assange can be recharged under provisions of the Espionage Act which carry the death penalty. It is noteworthy that Chelsea Manning was charged with ‘aiding the enemy’, which carries the death penalty and US government officials have publicly labelled the allegations against Assange as treason and called for the death penalty.”
December 19, 2023 — The UK High Court has confirmed that a public hearing will take place on 20-21 February 2024. The two-day hearing may be the final chance for Julian Assange to prevent his extradition to the United States. If extradited, Assange faces a sentence of 175 years for exposing war crimes committed by the United States in the Afghan and Iraq wars.
Immediately after the court date was announced, protestors responded by calling for a mass protest at the court on the days of the hearing at 8:30am. They welcome all those who support press freedom to join them in London and around the world.
The upcoming public hearing will be held before a panel of two judges who will review an earlier High Court decision taken by a single judge on 6 June 2023 which refused Mr Assange permission to appeal.
This decisive stage in Mr Assange’s appeals will determine one of two outcomes: whether Mr. Assange will have further opportunities to argue his case before the domestic (UK) courts, or whether he will have exhausted all appeals without a possibility for further appeal in the UK and thus enter the process of extradition. An application before the European Court of Human Rights remains a possibility.
With the myriad of evidence that has come to light since the original hearing in 2019, such as the violation of legal privilege and reports that senior US officials were involved in formulating assassination plots against my husband, there is no denying that a fair trial, let alone Julian’s safety on US soil, is an impossibility were he to be extradited. The persecution of this innocent journalist and publisher must end.
For more information about the court hearing and subsequent protest, scheduled to commence at 8.30am, and how to participate, please visit freeassange.org
June 8, 2023 — Julian Assange’s legal battle in the UK hit a roadblock this week as High Court Judge Jonathan Swift unilaterally rejected an appeal of Julian’s extradition order on all grounds. This leaves just one avenue at the High Court level remaining for Assange: he now has five business days to submit another request to appeal to a panel of two judges, who will convene a public hearing as to whether they will grant Assange leave of appeal.
Press freedom groups condemn UK decision
Judge Swift ruled against Julian on all grounds, drawing a harsh rebuke from the globally renowned watchdog Reporters Without Borders.
The US government seeks to prosecute Assange for his legitimate journalistic activity that exposed war crimes, corruption, and abuses of power. The prosecution of Assange under the Espionage Act is inherently illegitimate. On top of that, the legal case against Assange is irrevocably tainted by the extralegal war multiple intelligence agencies have waged on the Australian publisher.
The Biden Administration must heed the calls of nearly every human rights and press freedom organization, major newspapers, and members of Congress and drop these charges once and for all.
“The idea of Assange or anyone being tried in a U.S. court for obtaining and publishing confidential documents the same way investigative reporters do every day should be terrifying to all Americans,” said Freedom of the Press Foundation Director of Advocacy Seth Stern.
Final High Court appeal
While this ruling is obviously a major setback, it isn’t the end of the road. RSF explained,
“This leaves only one final step in the UK courts, as the defence has five working days to submit an appeal of only 20 pages to a panel of two judges, who will convene a public hearing. Further appeals will not be possible at the domestic level, but Assange could bring a case to the European Court of Human Rights.”
Julian’s wife, Stella Assange, said on Twitter that Assange will submit a renewed appeal request early next week. This request will argue on the same grounds as the previous appeal, which include that the prosecution of Assange is a highly politicized indictment which violates the US-UK Extradition Treaty, which specifically exempts political accusations.
The Solution
The Biden administration can end this case any time it so chooses, and the chorus of voices around the world calling on Biden to #DropTheCharges keeps growing. Australia, a key U.S. ally, has recently reiterated that it wants this nightmare to end; Australian Prime Minister Anthony Albanese personally raised the issue with President Biden, and Albanese has publicly stated that “enough is enough” when it comes to Washington’s crusade against Julian.
Today, 26 August 2022, Julian Assange is filing his Perfected Grounds of Appeal before the High Court of Justice Administrative Court. The Respondents are the Government of the United States and the Secretary of State for the Home Department, Priti Patel.
The Perfected Grounds of Appeal contain the arguments on which Julian Assange intends to challenge District Judge Vanessa Baraitser’s decision of 4 January 2021, and introduces significant new evidence that has developed since that ruling.
The Perfected Grounds of Appeal concerning the United States Government include the following points:
Julian Assange is being prosecuted and punished for his political opinions (s.81(a) of the Extradition Act);
Julian Assange is being prosecuted for protected speech (Article 10)
The request itself violates the US-UK Extradition Treaty and International law because it is for political offences;
The US Government has misrepresented the core facts of the case to the British courts; and
The extradition request and its surrounding circumstances constitute an abuse of process.
The Perfected Grounds of Appeal concerning the Secretary of State for the Home Department (SSHD) include arguments that Home Secretary Priti Patel erred in her decision to approve the extradition order on grounds of specialty and because the request itself violates Article 4 of the US-UK Extradition Treaty.
“Since the last ruling, overwhelming evidence has emerged proving that the United States prosecution against my husband is a criminal abuse. The High Court judges will now decide whether Julian is given the opportunity to put the case against the United States before open court, and in full, at the appeal,” said Julian Assange’s wife Stella Assange.
Background:
4 January 2021: Westminster Magistrates Court discharges (throws out) the US extradition request against Julian Assange. District judge Vanessa Baraitser rules that extradition is barred under the 2003 Extradition Act because it is “opressive” (s.91). The United States Government appeals.
27-28 October 2021: US appeal hearing before the High Court Appeal. Julian Assange suffers a transient ischemic attack (TIA) on the first day.
10 December 2021: The decision to discharge the extradition request is overturned by the High Court due to the United States Government issuing so-called ‘diplomatic assurances’ to the UK Government. The High Court rejects the United States Government’s arguments that the district judge erred in her findings.
14 March 2022: The Supreme Court refuses Julian Assange permission to appeal the High Court’s decision. The case is sent back to the Magistrates’ Court with instruction to issue the extradition order.
20 April 2022: The Magistrate issues the extradition order, which is sent to Home Secretary Priti Patel for approval.
17 June 2022: Home Secretary Priti Patel approves the extradition order to extradite Julian Assange to the United States.
March 16, 2022 —This article, by professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, andAssange Defense Committee advisory board member Marjorie Cohn, was originally posted at Truthout.org.
The British judicial system has erected still another barrier to Julian Assange’s freedom. On March 14, the U.K. Supreme Court refused to hear Assange’s appeal of the U.K. High Court’s ruling ordering his extradition to the United States. If extradited to the U.S. for trial, Assange will face 17 charges under the Espionage Act and up to 175 years in prison for revealing evidence of U.S. war crimes.
With no explanation of its reasoning, the Supreme Court denied Assange “permission to appeal” the High Court’s decision, saying that Assange’s appeal did not “raise an arguable point of law.” The court remanded the case back to the Westminster Magistrates’ Court, which is the same court that denied the U.S. extradition request on January 4, 2021.
In all likelihood, the magistrates’ court will refer the case to the British Home Office where Home Secretary Priti Patel will review it. Assange’s lawyers then have four weeks to submit materials for Patel’s consideration. If she orders Assange’s extradition — which is highly likely — his lawyers will file a cross-appeal in the High Court asking it to review the issues Assange lost in the magistrates’ court.
If the High Court refuses to review those additional issues, Assange can appeal to the European Court of Human Rights. That could take years. Meanwhile, he languishes in London’s high-security Belmarsh Prison, in fragile mental and physical health. He suffered a mini-stroke as his extradition hearing began. United Nations Special Rapporteur on Torture Nils Melzer wrote in a Twitter post that the “U.K. is literally torturing him to death.”
The Legal Background
On January 24, 2022, the High Court rejected Assange’s appeal but it certified to the Supreme Court that Assange had raised a “point of law of general public importance.” This means that it is a proper issue for the Supreme Court to review. The three-judge panel of the Supreme Court has now refused Assange permission to appeal.
The point of law that the High Court certified to the Supreme Court was as follows:
“In what circumstances can an appellate court receive assurances from a requesting state which were not before the court of first instance in extradition proceedings.”
The United States waited until after the extradition hearing was over to offer U.K. District Judge Vanessa Baraitser assurances about the way Assange would be treated in U.S. prisons if extradited.
Following a three-week evidentiary hearing, Baraitser ruled on January 4, 2021, that if Assange is extradited to the United States for trial, he is very likely to attempt suicide due to his mental state and the harsh conditions of confinement under which he would be held in U.S. prisons.
During the hearing, the U.S. government did not assure Baraitser that Assange would not be held in solitary confinement in the United States. After Baraitser denied extradition, the Biden administration provided “assurances” that Assange wouldn’t be subject to special administrative measures (SAMs) or be housed at the ADX supermax prison in Florence, Colorado.
But the United States’s so-called assurances contained a loophole big enough to drive a truck through. All assurances would be void if Assange committed a “future act” that “met the test” for the imposition of SAMs. That subjective determination would be made by prison officials with no judicial review.If extradited to the U.S. for trial, Assange will face … up to 175 years in prison for revealing evidence of U.S. war crimes.
Although the late timing of the U.S.’s assurances prevented Assange’s lawyers from arguing they were unreliable and citing prior such assurances the United States failed to honor, the High Court accepted Biden’s assurances and dismissed Assange’s appeal in its January 2022 ruling.
Issues Assange Seeks to Raise on Cross-Appeal
In the cross-appeal, Assange’s lawyers will raise the following points:
*The extradition treaty between the U.S. and the U.K. forbids extradition for a political offense and since espionage is a political offense, the court lacked jurisdiction to hear the case;
*Extradition would be oppressive or unjust due to the passage of time;
*The charges against Assange do not satisfy the “dual criminality test” which requires that they constitute criminal offenses in both the U.S. and the U.K.;
*Extradition is barred because the request is based on Assange’s political opinions;
*Extradition is barred because it would violate Assange’s rights to a fair trial and freedom of expression, as well as the prohibition on inhuman and degrading treatment, under the European Convention on Human Rights; and
*The request for extradition is an abuse of process because it is being pursued for a political motive and not in good faith.
Human Rights Organizations Decry Supreme Court’s Refusal to Hear Appeal
Julia Hall, Amnesty International’s deputy research director for Europe, called the Supreme Court’s refusal to hear the appeal a “blow to Julian Assange and to justice.” Hall said, “Demanding that states like the UK extradite people for publishing classified information that is in the public interest sets a dangerous precedent and must be rejected.” She added:
Prolonged solitary confinement is a key feature of life for many people in U.S. maximum security prisons and amounts to torture or other ill treatment under international law. The ban on torture and other ill-treatment is absolute and empty promises of fair treatment, such as those offered by the U.S.A. in the Assange case threaten to profoundly undermine that international prohibition.
Likewise, Reporters Without Borders (RSF) expressed strong opposition to the Supreme Court’s decision. “Assange’s case is overwhelmingly in the public interest, and it deserved review by the highest court in the U.K. After two full years of extradition proceedings, once again Assange’s fate has become a political decision,” said Rebecca Vincent, RSF’s director of operations and campaigns. “We call on the Home Office to act in the interest of journalism and press freedom by refusing extradition and releasing Assange from prison without further delay.”
Assange’s Fiancée Says U.S. Wants to Imprison Him for Exposing Its War Crimes
Stella Moris, Assange’s fiancée, says Assange is being persecuted for carrying out a core journalistic mission: telling the truth.
“Whether Julian is extradited or not, which is the same as saying whether he lives or dies, is being decided through a process of legal avoidance,” Moris said. “Avoiding to hear arguments that challenge the UK courts’ deference to unenforceable and caveated claims regarding his treatment made by the United States, the country that plotted to murder him. The country whose atrocities he brought into the public domain. Julian is the key witness, the [principal] indicter, and the cause of enormous embarrassment to successive US governments.”
Moris added, “Julian was just doing his job, which was to publish the truth about wrongdoing. His loyalty is the same as that which all journalists should have: to the public. Not to the spy agencies of a foreign power.”
According to Moris, the United States wants to imprison Assange for 175 years because he “published evidence that the country that is trying to extradite him committed war crimes and covered them up; that it committed gross violations that killed tens of thousands of innocent men, women and children; that it tortured and rendered; that it bombed children, had death squads, and murdered Reuters journalists in cold blood; that it bribed foreign officials and bullied less powerful countries into harming their own citizens, and that it also corrupted allied nations’ judicial inquiries into US wrongdoing.”
Assange and Moris, who share two small children, have finally received permission to marry. They will be wed later this month in Belmarsh Prison.
Statement from Assange’s legal team, Birnberg Peirce Solicitors
On 24 January 2022, the High Court (the Lord Chief Justice and Lord Justice Holroyde) certified that a point of law of public importance had been raised by Mr Assange following its rejection of his appeal.
The point certified for the potential consideration by the Supreme Court was
“In what circumstances can an appellate court receive assurances from a requesting state which were not before the court of first instance in extradition proceedings.”
A panel of three judges of the Supreme Court has considered the application on paper, and this afternoon (14 March 2022) refused permission to appeal on the basis that “the application does not raise an arguable point of law.”
We regret that the opportunity has not been taken to consider the troubling circumstances in which Requesting States can provide caveated guarantees after the conclusion of a full evidential hearing. In Mr Assange’s case, the Court had found that there was a real risk of prohibited treatment in the event of his onward extradition.
We explain below the legal processes that now follow in his case.
The case, on the direction of the High Court, will now be remitted to Westminster Magistrates’ Court, whose function thereafter is limited to referring the decision for extradition to the Home Secretary, Priti Patel.
The Home Secretary then decides whether to order or refuse extradition to the United States on a number of statutory bases. The defence is entitled to make submissions to the Home Secretary within the following four weeks, in advance of her making any decision.
It will be recollected that Mr Assange succeeded in Westminster Magistrates’ Court on the issue subsequently appealed by the US to the High Court. No appeal to the High Court has yet been filed by him in respect of the other important issues he raised previously in Westminster Magistrates’ Court. That separate process of appeal, of course, has yet to be initiated.
Just this morning on our way to school, our four-year-old son asked me when daddy will come home. Julian’s life is being treated as if it were expendable. He has been robbed of over a decade of liberty, and three years from his home and his young children who are being forced to grow up without their father.
A system that allows this is a system that has lost its way.
Whether Julian is extradited or not, which is the same as saying whether he lives or dies, is being decided through a process of legal avoidance. Avoiding to hear arguments that challenge the UK courts’ deference to unenforceable and caveated claims regarding his treatment made by the United States, the country that plotted to murder him. The country whose atrocities he brought into the public domain. Julian is the key witness, the principle indicter, and the cause of enormous embarrassment to successive US governments.
Julian was just doing his job, which was to publish the truth about wrongdoing. His loyalty is the same as that which all journalists should have: to the public. Not to the spy agencies of a foreign power. He published evidence that the country that is trying to extradite him committed war crimes and covered them up; that it committed gross violations that killed tens of thousands of innocent men, women and children; that it tortured and rendered; that it bombed children, had death squads, and murdered Reuters journalists in cold blood; that it bribed foreign officials and bullied less powerful countries into harming their own citizens, and that it also corrupted allied nations’ judicial inquiries into US wrongdoing. For this, that country wants him in prison for 175 years.
Now the extradition will formally move to a political stage. Julian’s fate now lies in the hands of Home Secretary Priti Patel. This is a political case and she can end it. It is in her hands to prove that the UK is better than all of this. Patel can end Britain’s exposure to international ridicule because of Julian’s incarceration. It takes political courage but that is what it needed to preserve an open society that protects publishers from foreign persecution.
The cruelty against Julian is corrupting. It corrupts our most cherished values and institutions. They will be extinguished and lost forever unless this travesty is brought to an end.
The fight for freedom will go on, until he’s freed.
January 24, 2022 — In an extremely brief court hearing in London this morning, the UK’s High Court announced that it has certified a point of law for Julian Assange to be able to apply to appeal to the Supreme Court. The High Court ruled not to allow the appeal itself but to certify the question of what stage in the extradition hearing process ‘assurances’ can or should be introduced. Assange is now allowed to apply to appeal on that specific point to the UK Supreme Court.
In January 2021, District Judge Vanessa Baraitser ruled that it would be oppressive to extradite Assange on the grounds that it would drive him to suicide. The U.S. government appealed that decision, in part on the grounds that it should have been allowed to offer the district court “assurances” regarding Assange’s prospective treatment in the United States during the extradition hearing rather than afterward on appeal. The High Court overturned the lower court’s ruling, partially on the point that the judge should have informed the U.S. that it was “minded” to rule in Assange’s favor and allowed the U.S. government to offer assurances.
— Free Assange – #FreeAssange (@FreeAssangeNews) January 24, 2022
Assange will now appeal this point to the Supreme Court, which must first decide whether to allow an appeal hearing before setting a date.
Journalists attempting to cover today’s legal proceedings remotely were provided with a video link just minutes before court was in session. However, they were never actually able to see what transpired in court, viewing only a blank screen instead. Those of us reporting on today’s developments had to rely on public tweets from those physically in attendance in London.
The legal question of accepting assurances post substantive hearing was argued in the High Court
Judges had ruled in USA's favour & echoed their refusal on these grounds but accepted that the matter is questionable in the SC
January 21, 2022 — The UK High Court will deliver its decision on Monday, January 24th, at 10:45am London time as to whether to permit Julian Assange to appeal the U.S. extradition decision to the UK Supreme Court on points of law of general public importance. Julian Assange’s fiancée Stella Moris will be there to give a statement.
The judgment will either:
Certify that the point(s) of law raised by Julian Assange are of general public importance–thus giving him permission to lodge an application with the UK Supreme Court; or
Deny such certification, in which case the extradition order will pass to UK Home Secretary Priti Patel to authorize or deny Mr. Assange’s extradition.
The judgment will be read out at 10:45am London time at:
December 23, 2021 — This morning at 11:05 Julian Assange filed an application for leave to appeal to the Supreme Court the High Court’s ruling that he can be extradited to the US on three grounds.
The High Court’s ruling in USA v Assange raises three points of law of general public importance that have an impact on the procedural and human rights safeguards of a wide range of other types of cases.
On December 10th, the High Court upheld the Magistrates’ Court’s assessment, based on the evidence before her, that there was a real risk that, should Julian Assange be extradited to the United States, he would be subjected to near total isolation, including under the regimes of SAMs (Special Administrative Measures) and/or ADX, (administrative maximum prison) and that such isolation would cause his mental condition to deteriorate to such a degree that there was a high risk of suicide. These findings led the lower court to block the extradition under s. 91 of the Extradition Act, which bans “oppressive” extraditions.
However, the High Court overturned the lower court’s decision to block the extradition, based solely on the fact that after the US lost the extradition case on January 4th 2021, the US State Department sent a letter to the UK Foreign Office containing conditional assurances in relation to Julian Assange’s placement under SAMs and ADX. The assurances letter explicitly states in points one and four that “the United States retains the power” to “impose SAMs” on Mr. Assange and to “designate Mr. Assange to ADX” should he say or do anything since January 4, 2021 that would cause the US government to determine, in its subjective assessment, that Julian Assange should be placed under SAMs conditions and/or in ADX Florence. These conditional assurances alone were considered sufficient by the High Court to overturn the lower court’s decision.
Under English law, in order for the application to have a chance to be considered by the Supreme Court, first the same High Court judges who ordered Julian Assange’s extradition must certify that at least one of the Supreme Court appeal grounds is a point of law of general public importance (s.114 of the 2003 Extradition Act).
Julian Assange’s application for leave to appeal to the Supreme Court is therefore currently under consideration by the High Court judges. It is not known how long it will take for the decision to come down, but it is not expected before the third week of January.
December 10, 2021 — Britain’s High Court ruled to approve the United States’ appeal of the District Judge’s decision not to extradite WikiLeaks publisher Julian Assange, sending the case back down to the Magistrate’s level for his extradition to be ordered. Assange’s fiancee Stella Moris called the decision “dangerous and misguided” and a “grave miscarriage of justice.”
Lord Justice Holroyde summarized the ruling and explained that the High Court had denied three of the U.S. government’s five lines of appeal argument which dealt with District Judge Vanessa Barrister’s handling of evidence in assessing Julian Assange’s suicide risk upon the order of his extradition. The High Court granted the U.S. government’s two other grounds for appeal dealing with the so-called ‘assurances’ the U.S. purports to provide regarding the treatment Assange would receive in prison.
The U.S. had argued to the High Court that Judge Baraitser should have notified them during the extradition hearing that she was “minded” to rule against extradition on grounds of oppressive conditions so that it could provide assurances before she delivered her final verdict.
Assange’s defense argued in response, per the High Court’s summary, “The offer of assurances comes too late. They do not remove the real risk of detention subject to SAMs and/or in ADX, or the real risk of detention in ADSEG and at Alexandria Detention Centre. In any event, even if the assurances are admitted the appeal should not be allowed but the case remitted to the judge with a direction to decide the relevant question again.”
The High Court sided with the U.S. on this question, and found that the assurances the U.S. gave were responsive to Baraitser’s specific concerns regarding Assange’s prospective treatment. “It follows that we are satisfied that, if the assurances had been before the judge, she would have answered the relevant question differently,” they write.
In ruling to allow the U.S. government’s appeal, the High Court sends the case back down to the Westminster Magistrates’ Court with a direction for the district judge to then send the case to the Secretary of State to approve the extradition.
Responding to the ruling, Stella Moris said, “We will appeal this decision at the earliest possible moment.”
A UK court has overturned an earlier decision blocking the extradition of Julian Assange to the United States where he is accused of publishing true information revealing crimes committed by the US government in the Guantanamo Bay detention camp, Iraq, and Afghanistan, and details of CIA torture and rendition. Julian Assange was not given permission to attend the appeal hearing in person.
The prosecution against Julian Assange is an existential threat to press freedom worldwide. Leading civil liberties groups, including Amnesty International, Reporters Without Borders, ACLU, and Human Rights Watch have called the charges against Julian Assange a “threat to press freedom around the globe.” Journalist unions, including the National Union of Journalists and the International Federation of Journalists, have said that “media freedom is suffering lasting damage by the continued prosecution of Julian Assange.” He faces a 175-year prison sentence.
Responding to the decision of the High Court to overturn the lower court’s earlier ruling to block the extradition of Mr. Assange, Stella Moris, Julian Assange’s fiancee, said: “We will appeal this decision at the earliest possible moment.”
Moris described the High Court’s ruling as “dangerous and misguided” and a “grave miscarriage of justice.” “How can if be fair, how can it be right, how can it be possible, to extradite Julian to the very country which plotted to kill him?” she said.
On September 26, CIA plans to assassinate Julian Assange were uncovered in a bombshell report. The detailed investigation revealed that discussions of assassinating Julian Assange in London had occurred “at the highest levels” of the CIA and Trump White House, and that kill “sketches” and “options” had been drawn up on orders of Mike Pompeo, then CIA director. The investigation revealed that plans to kidnap and rendition Assange were far advanced and the CIA’s operations prompted a political decision to produce charges against him.
Editor-in-chief of WikiLeaks, Kristinn Hrafnsson said, “Julian’s life is once more under grave threat, and so is the right of journalists to publish material that governments and corporations find inconvenient. This is about the right of a free press to publish without being threatened by a bullying superpower.”
Amnesty International says the so-called ‘assurances’ upon which the US government relies “leave Mr. Assange at risk of ill-treatment,” are “inherently unreliable,” and “should be rejected,” adding that they are “discredited by their admission that they reserved the right to reverse those guarantees.” Amnesty concluded the charges against Assange are “politically motivated” and must be dropped.
Julian Assange and Stella Moris are engaged to be married and have two children, who are British and live in London.
Stella Moris will be giving a statement outside court following the decision; updates via @wikileaks
On 4 January 2021, a UK judge ruled that extraditing Julian Assange to the United States would be oppressive, would lead to his death and must be stopped. Mr. Assange faces a 175-year sentence.
Two days before leaving office the Trump Administration appealed this decision, and appeal arguments were heard by the UK’s High Court on 27-28 October 2021. The High Court is due to rule on the U.S. appeal imminently. See Julian Assange’s full response to the U.S. appeal effort here.
The U.S. purports to give “assurances” about the treatment Julian Assange would face in a U.S. prison, in its attempt to overturn the district judge’s opinion. These “assurances” specifically allow the U.S. to inflict extreme isolation on Mr. Assange, explicitly asserting that the U.S. government can still impose the very prison conditions that the magistrate found would kill him. Amnesty International says these so-called assurances “leave Mr. Assange at risk of ill-treatment” are “inherently unreliable” and “should be rejected.”
The U.S. prosecution is entirely related to documents Julian Assange published in 2010 revealing war crimes and major human rights abuses. Mr. Assange faces a 175-year sentence if extradited.
The decision to prosecute Julian Assange has been universally condemned by all major free speech, human rights and media organizations as an unprecedented threat to the public’s right to know.
The ACLU and 24 other groups recently reiterated their opposition to Julian Assange’s prosecution as a “grave threat to journalists and freedom of the press” which the government should “drop immediately” following the extraordinary revelation that the CIA deployed a multipronged physical and informational operation against WikiLeaks which included plans to assassinate or kidnap Mr. Assange. Discussions over kidnapping or killing Mr. Assange occurred “at the highest levels” of the U.S. administration.
Julian Assange is being held as an unconvicted remand inmate at the high-security Belmarsh prison, where he has been since April 2019. Prior to this he spent seven years in effective detention in London’s Ecuadorian Embassy, having been granted political asylum. Mr. Assange has been in detention in one form or another since 2010. Mr. Assange’s fiancée Stella Moris, and their two young children who are British live in the UK. Mr. Assange is an Australian national who has worked in the UK for many years.
Reporters Without Borders and the UK National Union of Journalists say: “Our government must ensure the UK is a safe place for journalists and publishers to work. Whilst Julian Assange remains in prison facing extradition, it is not.”
Appeal hearing concludes as defense dismantles U.S. arguments
UK MP Jeremy Corbyn and Assange’s partner Stella Moris, outside court in London | Photo by Guy Smallman
On the second day of Julian Assange’s extradition appeal hearing, the defense laid out its arguments to uphold the District Judge’s ruling which barred Assange’s ruling on medical grounds. Yesterday, the prosecution attempted to undermine a renowned psychiatrist, admitted its prison assurances are “conditional,” and tried to downplay how harsh Assange’s US conditions would be.
Before the proceedings began, Assange’s fiancée Stella Moris clarified some misreporting about Julian’s condition. “Reports that Assange didn’t attend court in person due to medication are incorrect,” she wrote. “He asked to appear in person. The request was rejected. The medication interfering with his ability to follow has nothing to do with the fact he wasn’t permitted to attend court.”
Edward Fitzgerald, Barrister for the defense, addressed grounds 1, 3, and 4 of the U.S. appeal, all dealing with evidence surrounding Assange’s mental health and whether his psychiatric condition and prospective treatment are so oppressive so as to render an extradition unjust. In the afternoon, Mark Summers QC addressed grounds 2 and 5, comprising the U.S.’s claims of assurances that Assange wouldn’t be placed in the most severe and isolating conditions in a U.S. prison.
Fitzgerald argued that in her January 4, 2021 ruling, District Judge Vanessa Baraitser carefully weighed defense and prosecution testimony and evidence, applied the appropriate test based on relevant case law (Turner v. USA), and reasonably found overwhelming evidence supporting the finding that ordering his extradition would put him at grave risk of suicide. She found that Assange is severely depressed, that a “single-minded determination” resulting from his Asperger’s Syndrome would reduce his capacity to resist suicide, and that these factors combined with the prospect of an all-but-guaranteed oppressive prison regime and life sentence in the United States put him at grave risk of suicide should his extradition be ordered.
To highlight just how justified Assange’s fears have been, Fitzgerald also reminded the court of the recent Yahoo News revelations, based on conversations with more than 30 former government officials, that the CIA under the Trump Administration made serious plans to kidnap and even assassinate Julian Assange while he was in the Ecuadorian Embassy in London.
Because the prosecution spent such a considerable portion of yesterday’s proceedings homing in on the fact that Dr Michael Kopelman, the psychiatrist who evaluated Assange over the course of many in-person interviews, initially omitted the fact that Julian was in a relationship with Stella Moris, Fitzgerald again explained how misleading it is to call this deceptive. Kopelman made the court aware of this fact well before the September 2020 extradition case, the judge addressed this in her ruling, and she explicitly said that she “did not accept that Professor Kopelman failed in his duty to the court.”
Fitzgerald also countered the prosecution’s off-hand comment from yesterday suggesting Dr. Sondra Crosby’s testimony should be ignored because she “is just a GP and a friend of Assange’s.” He explained that Dr. Crosby is an expert on physical and psychological impact of torture who took an interest in the case due to its severe and unusual nature.
Finally, the prosecution said that Dr. Kopelman was the only doctor to find Assange is on the autism spectrum. The judge’s ruling directly contradicts that. Dr. Quinton Deeley, a consultant developmental neuropsychiatrist at the National Autism Unit at Bethlem Royal Hospital, “found that he met the diagnostic criteria for an autism spectrum disorder albeit that his was ‘a high functioning autistic case’ and Asperger’s syndrome disorder,” the judge wrote.
Assurances are inadequate and unreliable
After the lunch break, Summers argued for the defense that the prosecution’s “assurances” regarding the prison conditions Assange would face in a U.S. prison pre- and post-trial cannot be trusted, and are inadequate even if they could be.
The defense argues that the U.S. assurances regarding prison conditions:
are late, having been given after the District Judge ruling (after the evidentiary stage)
address only 2 of the 7 bases for the finding of a substantial risk of suicide
don’t even adequately address the limited issues they purport to address
can’t be considered in good faith when considering the U.S. vindictiveness, particularly the CIA’s vituperative plans
The prosecution has argued that the judge should have notified them ahead of time that she was “minded” to find Assange’s suicide risk to be too high, so that they could have provided these assurances during the evidentiary stage. But as Summers points out for the defense, Special Administrative Measures (SAMs), solitary confinement, and ADX Florence were continuously points of discussion throughout the extradition hearing. The U.S. could have taken them off the table at any time. The judge addressed this very point in her ruling, noting that “[US attorney and witness] Mr. Kromberg acknowledged that their imposition is possible.”
But even taking the assurances at their word, “The newly proffered and conditional assurances do not in fact remove the real risk of detention on SAMs or on ADX. They certainly do not remove the very real risk of detention in administrative segregation.”
The assurance that Assange wouldn’t be subject to SAMs actually “does not prevent the imposition of SAMs at all. It expressly reserves to the USA the power to impose SAMs on Mr Assange ‘in the event that, after entry of this assurance, he was to commit any future act that met the test for the imposition of a SAM.”
By focusing so narrowly on SAMs and the ADX Florence, the prosecution is attempting to skirt the fact that U.S. prisoners not in those conditions face isolation in many other ways. “The assurances attempt to address one notorious prison regime and one notorious prison,” the defense argues, “and say nothing about any of the other severely isolating prison regimes or other notorious prisons in the USA about which the DJ heard copious evidence.”
The prosecution would later attempt to counter this point by suggesting the U.S. Bureau of Prisons doesn’t practice solitary confinement. Administrative Segregation (AdSeg) can’t be considered solitary confinement, Lewis said, because Assange would be allowed to visit with his lawyers. But anyone with any familiarity with U.S. prison conditions sees past these euphemistic disguises. The National Immigrant Justice Center, a U.S.-based human rights organization, writes,
“The hole, AdSeg, protective custody, SMU, SHU—are all terms used to refer to solitary confinement, a form of incarceration where a prisoner is locked up for 23 hours a day with little or no human contact. Prisons often hide behind these rhetorical labels to avoid scrutiny under legal sanctions that prohibit indefinite placement in solitary confinement and require due process for those who are sentenced.”
The defense also notes that the ADX assurance “bizarrely promises not to detain at ADX ‘pre-trial’ – something which could never happen (ADX is a post-conviction establishment)” and “does not in fact prevent post-conviction detention at ADX.”
“The evidence is overwhelming that regardless of SAMs, and regardless of the ADX, if extradited, Julian Assange is surely headed for extreme isolation, pre- & post-trial,” Summers said. Even if acquitted, after pre-trial solitary confinement and a lengthy trial, Assange could be re-arrested and could face isolation all over again.
The prosecution has pointed to shorter sentences of Jeffrey Sterling (3.5 years), Daniel Hale (3.75 years), and Reality Winner (5.25 years) as evidence Assange might not get decades in jail. But the obvious corollary should be Chelsea Manning’s sentence, as she leaked the very documents Assange is charged with publishing and Assange is alleged to have conspired with her. Chelsea was sentenced to 35 years, which would amount to a life (or death) sentence for Julian.
This is particularly relevant to the US assurance that Assange could be transferred to an Australian prison. This assurance elides the fact that Assange’s U.S. case would very likely cycle through many appeals and span many years. “On the evidence,” the defense argues, “Mr Assange will most likely be dead before [this assurance] can have any purchase, if it ever could.”
But the U.S. cannot be trusted to keep the assurance about transferring Assange to an Australian prison even if it did have purchase. Summers cited the case of David Mendoza Herrarte, where a Spanish court was given assurances that Mendoza could serve his prison sentence in Spain if he were extradited to face trial in the United States first. In that case, the U.S. promised to send him to Spain, but when it came time to approve the prison transfer, the DOJ denied it. The Spanish court believed that the U.S. government was giving the assurance, but the U.S. then said that the prosecutor had only assured that Mendoza could apply for a transfer, and the DOJ reserved the right to deny it.
Assurance cannot be trusted, Summers said, when it is caveated, it is conditional, and it is insufficient.” Furthermore, assurances cannot be trusted from the same government that made serious plans to render, kidnap, and even discussed killing Julian Assange.
The appeal proceedings then adjourned, at 4:30pm London time, with the judges closing that both parties have “given [them] much to think about.” No timeline was given for a decision, but we expect it to take weeks if not months. We’ll report back here as we learn more.
Julia Quenzler / SWNS. Julian Assange’s extradition appeal hearing, Oct 27, 2021
Julian Assange’s extradition appeal hearing, which will turn in part on determinations about his health and risk of suicide, commenced with the news that Julian was too ill to even follow the proceedings by remote videolink from Belmarsh prison. Julian did enter the viewing box about midway through the morning’s session, but he appeared thin and unwell, and he could be seen leaving the room about an hour later.
Assange’s extradition was denied in January of this year when District Judge Vanessa Baraitser ruled that ordering his extradition would put him at such high risk of suicide so as to be “oppressive.” The U.S. is appealing that ruling to the UK’s High Court on the grounds that, it argues, the judge misapplied evidence as to Assange’s mental health, and the U.S. government can assure the court that Assange wouldn’t be held under the worst and most isolating conditions if sentenced to a U.S. prison.
Prosecution claims Assange won’t face isolation in U.S. prison
As the appealing party, the U.S. government argued first, led by James Lewis QC. Lewis broke up up its objections to each aspect of the judge’s finding — whether Assange’s mental health condition puts him at high risk of suicide, his personal capacity to resist that impulse, how prospective treatment affects that risk level. He began with the so-called “assurances” that Assange wouldn’t be placed in ADX Florence, the U.S.’s highest-security prison designed specifically to isolate its inmates, and that he wouldn’t be subject to Special Administrative Measures (SAMs), which are applied, often in national security cases, to even further restrict an inmate’s communication with the outside world. The U.S. worked to restrict all of the defense’s objections regarding prison conditions to ADX Florence and SAMs, attempting to narrow its burden of proof by arguing that if ADX Florence and SAMs were removed from the equation, Judge Baraitser would have ruled to extradite Assange.
Amnesty International has warned that assurances Assange wouldn’t be placed in ADX Florence and that SAMs wouldn’t be imposed are “inherently unreliable,” as they contain the crucial caveat that the U.S. can change its mind whenever it chooses, if it determines that Assange has done something to warrant isolation or SAMs. Lewis admitted that these assurances are indeed “conditional,” but he said that they must be, “otherwise it would give him a blank check to do whatever he’d like.”
Lewis argued against the defense’s contention that Assange would likely face solitary confinement in pre-trial detention by claiming that Assange would be allowed to visit with his lawyers whenever he would like. (Note that even in detention in the UK, Assange has gone for stretches of several months without being able to communicate with his legal team.) He also floated the possibility that Assange might not be convicted at all, despite the fact that more than 90% of U.S. federal cases result in guilty verdicts, and Assange would be tried in the U.S.’s harshest district, EDVA (a district that CIA whistleblower John Kiriakou, who has been convicted under the same Espionage Act of which Assange faces 17 counts, refers to as the “Espionage court”).
U.S. attempts to undermine renowned psychiatrist’s testimony
Press Association / Elizabeth Cook. Julian Assange’s extradition appeal hearing, Oct 27, 2021
The prosecution then moved to Assange’s mental health and the testimony of Professor Kopelman, the psychiatrist who examined and interviewed Assange and determined he would be at high risk of suicide if his extradition were ordered. The U.S. contends that the defense conflates criteria for breaching Article 3 of the European Convention on Human Rights, which says, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment,” and those for breaching Section 91 of the UK Extradition Act, which prevent extradition if “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.”
As it did in the evidentiary stage in September 2020, the U.S. attempted to elevate the opinion of its own psychiatrist, Dr. Nigel Blackwood. over that of Dr Kopelman. Dr. Blackwood “accepted there was some risk of a suicide attempt linked to extradition but this did not reach a ‘substantial risk’ threshold.” In October 2020, Declassified UKreported that Dr Blackwood “works for an academic institute that is funded by the UK Ministry of Defence and linked to the US Department of Defence.”
The U.S. spent considerable time in the afternoon session repeating its arguments from the evidentiary stage of the proceedings back in September 2020. Lewis reiterated the U.S.’s feeling that Dr. Kopelman misled the court in his first psychiatric report by omitting his awareness that Julian was in a relationship with Stella Moris. In her ruling, Judge Baraitser addressed the issue head-on:
“I did not accept that Professor Kopelman failed in his duty to the court when he did not disclose Ms. Morris’s relationship with Mr. Assange…. Professor Kopelman’s decision to conceal their relationship was misleading and inappropriate in the context of his obligations to the court, but an understandable human response to Ms. Morris’s predicament. He explained that her relationship with Mr. Assange was not yet in the public domain and that she was very concerned about her privacy. After their relationship became public, he had disclosed it in his August 2020 report. In fact, the court had become aware of the true position in April 2020, before it had read the medical evidence or heard evidence on this issue.”
The prosecution attempted to persuade the High Court that if it doesn’t find this renders Kopelman’s testimony inadmissible, it should at least find that it holds much less weight than Baraitser did. The U.S. argument boils down to this question of weight, rather than contestations of fact: which witnesses and statistics and pieces of evidence should be considered more seriously than others. Lewis complained that the judge didn’t adequately explain her reasoning for preferring Kopelman’s testimony.
Defense responds; judge preferred Kopelman
But as Edward Fitzgerald pointed out when responding to the prosecution in the final half hour of today’s session, the judge can’t explain in detail her reasoning for weighing every bit of evidence more than others, and in fact she was quite clear about how she reached her conclusion. “I preferred the expert opinions of Professor Kopelman and Dr. Deeley to those of Dr. Blackwood,” Baraitser wrote. “[Dr. Blackwood’s] summary of the notes was significantly less detailed than the summary provided by Professor Kopelman and he did not appear to have access to all relevant notes.” For example, Dr. Blackwood didn’t even know why Julian was in the healthcare ward at Belmarsh, that ”Mr. Assange was finding it hard to control his thoughts of self-harm and suicide.”
The prosecution argued that the present tense in the phrase barring extradition on the grounds that “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him” means that only a defendant’s present mental health conditions should be considered, as opposed to how future prospective prison conditions might impact the risk of suicide. But Fitzgerald responded that Dr. Kopelman addressed this as well, finding that the mere ordering of Assange’s extradition would trigger this grave risk, so this was considered an imminent issue rather than a hypothetical.
Court adjourned after Fitzgerald’s point-by-point response to the arguments the U.S. made in court today. Tomorrow, the defense will have the majority of the day to argue its own response to the full government submission. We’ll return at the same time tomorrow.
Today Britain’s High Court granted the U.S. government’s request to expand the scope of its appeal of Julian Assange’s extradition ruling. Assange’s appeal hearing has been scheduled for October 27-28, 2021.
In January of this year, the District Court blocked Assange’s extradition to the United States on the grounds that sending the WikiLeaks publisher to the harsh conditions of U.S. imprisonment would put him at grave risk of suicide. In the final days of the Trump administration, prosecutors acting on behalf of the U.S. filed an application to appeal that decision to the UK’s High Court, requesting permission to appeal on five lines of argument. A High Court judge granted the U.S. limited permission, on three of the five grounds for appeal, and today two separate High Court judges heard arguments over whether to allow the remaining two grounds.
These remaining lines of argument concern the testimony of Professor Michael Kopelman, the psychiatrist who evaluated Assange in prison and found that the combination of his Autism spectrum diagnosis and clinical depression put him at severe risk of suicide should his extradition be ordered. The U.S. wants to challenge whether Prof. Kopelman’s testimony should have been admissible and then whether the District Judge erred in her “overall assessment of the evidence going to the risk of suicide.”
Professor Kopelman provided two reports to the Magistrate, in December 2019 and August 2020, regarding his assessment of Assange’s mental health as it pertained to potential extradition, and he testified in court in September 2020. At issue is the fact that in his first report, Professor Kopelman did not disclose that he was aware that Assange was in a relationship with Stella Moris and that they had two children together, though he referred to Assange’s children in general terms as relevant to his fears of extradition. By the time of his second report, this information was public knowledge, because the relationship was disclosed when Julian’s defense applied for bail in April 2020, and so Professor Kopelman made reference to it subsequently.
The prosecution questioned Prof. Kopelman over this omission on cross-examination in September, and he explained that he had made the difficult decision to exclude this information to respect the Assange family’s privacy.
In her January ruling, District Judge Vanessa Baraitser recounted this chain of events and found that while Kopelman should have disclosed his knowledge of the relationship, the omission did not render his evidence inadmissible,
“I did not accept that Professor Kopelman failed in his duty to the court when he did not disclose Ms. Morris’s relationship with Mr. Assange….In my judgment Professor Kopelman’s decision to conceal their relationship was misleading and inappropriate in the context of his obligations to the court, but an understandable human response to Ms. Morris’s predicament.”
The U.S. appealed to the High Court on the grounds that Baraitser erred in this determination, contending that the omission should either render Kopelman’s testimony inadmissible or at the least should mean it is given “no, or far less, weight.” Edward Fitzgerald QC argued for the defense that, “it cannot be…that one lapse, no matter how reasonable given the human predicament, renders his whole submission inadmissible. It must be considered in context.”
The High Court’s came to the conclusion “that it is at least arguable” to challenge Kopelman’s testimony over this omission, noting Koeplman’s declaration that his duty to the court overrides any obligation to the defendant. Lord Justice Holroyde said, “To my mind, this goes more to the weight of the evidence than to its admissibility,” but the fact that it is “arguable” was enough to grant the U.S. request to appeal on the remaining two grounds.
The High Court scheduled Assange’s appealing hearing for October 27-28. Julian followed today’s proceedings by video-link from HMP Belmarsh and will be invited to do the same in October.
The United States government has been given limited permission to appeal the District Court’s decision to block the extradition of Julian Assange from the UK to the U.S. Britain’s High Court ruled that the U.S. government could appeal on some but not all of their requested points. Now a preliminary hearing has been scheduled for August 11th, at the Royal Courts of Justice in London, to argue the scope of that appeal, and whether the U.S. government will be allowed to appeal on its other two proposed lines of argument. Assange is expected to attend in person.
Following that hearing, the High Court will schedule a date to hear full appeal arguments.
Grounds for Appeal
The U.S. government set forth five lines of argument for its appeal of the extradition ruling, and two of them were denied. It will be allowed to argue that the judge misapplied section 91 of the 2003 Extradition Act, which says someone can’t be extradited if the “physical or mental condition of the person is such that it would be unjust or oppressive to extradite him,” and that the judge should have notified the prosecution that she found extradition would be unjust or oppressive so that it could have provided “assurances to the Court” ahead of time. Finally, the High Court will allow the U.S. to put forth said assurances in the appeal hearing.
The High Court denied the U.S. government’s request to appeal on the grounds that the testimony of Professor Michael Kopelman should have been ruled inadmissible. Professor Kopelman is a psychiatrist who evaluated Assange and determined that he would be at risk of suicide if his extradition were ordered. The court also denied the U.S. government’s request to argue that the judge erred in her overall assessment of evidence that Assange would be at risk of suicide.
On August 11th, the High Court will hold a preliminary hearing for the parties to argue these last two grounds.
Assange’s fiancé Stella Moris explained what the U.S. government is attempting to do with this move:
Any losing party, the US in this case, is allowed to attempt to have different judges review the grounds that they have lost on. But the US government’s attack on Dr. Kopelman is particularly vexatious. The US government will try to re-run arguments that have already been settled by two different judges. It is the latest move by the US government to try to game the British legal system. The US government’s handling of the case exposes the underlying nature of the prosecution against Julian: subverting the rules so that Julian’s ability to defend himself is obstructed and undermined while he remains in prison for years and years, unconvicted, and held on spurious charges. The “process” is the punishment.
However much the prosecution plays to the gallery on August 11th in its efforts to attack the reputation of one of the most well-respected neuropsychiatrists in Britain, the real substance of the appeal will take place when the main appeal hearing will be heard in full later this year. But the scope of that hearing, three or five grounds, will be determined on the 11th of August.
U.S. “Assurances”
The U.S. government purports to give “assurances” that if Assange is extradited to the United States, he won’t be placed in the highest-security prison, Supermax ADX Florence, and he won’t be subjected to Special Administrative Measures (SAMs). But these assurances include caveats that render them meaningless: according to its own filing, the United States can still use these measures if it decides that Assange “do[es] something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX.”
Amnesty International says, “Such latitude to alter the terms of the core assurances after Assange’s transfer to the US renders them irrelevant from the start since he would remain at risk of ill-treatment in US detention at the point of transfer and afterward.”
Julia Hall, Amnesty International’s Expert on Counter-Terrorism, Criminal Justice, and Human Rights, says, “Those are not assurances at all. It is not that difficult to look at those assurances and say: these are inherently unreliable, it promises to do something and then reserves the right to break the promise.”
Responding to the news of so-called “assurances,” Moris said, “What the US is proposing is a formula to keep Julian in prison effectively for the rest of his life.”
A Court has notified the parties involved in Julian Assange’s extradition case that the United States government’s appeal will be listed for a hearing.
The decision by the High Court simply gives permission for the US government to attempt to challenge the ruling, but it does not reflect the merits of the US arguments.
Permission has been granted on a limited basis, allowing only narrow, technical grounds to form the basis of the appeal. Crucially, the High Court did not allow the United States to appeal any of the factual findings concerning Assange’s condition. No date has been set for the hearing.
Assange’s extradition was blocked in January on the grounds that it would be “oppressive”, citing the circumstances of the extradition, as well as his clinical history and Autism Spectrum disorder diagnosis, which, combined, would drive him to suicide. The High Court affirmed Judge Vanessa Baraitser’s conclusions concerning his clinical condition, as well as the independent expert evidence on which she relied.
Assange faces a sentence of up to 175 years in prison if extradited.
The appeal was lodged by the Trump Administration, just two days before President Biden took office, but revelations reported last weekend dealt a new blow to the credibility of the Department of Justice case.
Icelandic investigative journalists revealed that the DoJ’s lead witness, an Icelandic man convicted of sex crimes against minors, fraud and embezzlement, who is also a diagnosed sociopath, now admits that he fabricated allegations against Assange in exchange for immunity from US prosecutors. Those discredited allegations form the basis of the Second Superseding indictment against Assange and were even cited in the extradition judgment delivered on January 4th.
Julian Assange’s fiancee, Stella Moris, said:
“Six months ago, Judge Vanessa Baraitser blocked the extradition of my partner, Julian Assange, because consigning him to the US prison system would have amounted to signing his death warrant. That should have been the end of it.
“The new revelations concerning the DoJ’s lead witness, Sigurdur Ingi Thordarson, confirm what we all knew: that the case against Julian has been built on lies. The case is rotten to the core, and nothing that the US government can say about his future treatment is worth the paper it is written on. This is a country whose agents plotted to kill Julian on British soil; who harried his solicitors and stole legal documents; who even targeted our six-month-old baby.
This entirely baseless, abusive, anti-First Amendment case was driven by the previous administration for nefarious reasons. The administration instrumentalised the law to pursue the political objective of disappearing Julian as a deterrent to journalists in the United States and elsewhere.
“I am appealing directly to the Biden government to do the right thing, even at this late stage. This case should not be dragged out for a moment longer. End this prosecution, protect free speech and let Julian come home to his family.
“The current administration admits that the Trump Department of Justice lacked independence. It seems inconceivable that President Biden would want to continue with this case – because Julian’s freedom is coupled to all our freedoms and no democratic society can ever make journalism a crime.
“If the Biden Administration does not end this now, the case will limp through the courts while Julian remains in prison indefinitely: unconvicted, suffering and isolated, while our young children are denied their father. Julian spent his 50th birthday on the 3rd of July behind bars in Belmarsh prison, where he has been on remand since April 2019. He is not a criminal. He is a journalist and a publisher, and he is being punished for doing his job.
“This case shows nothing but contempt for the First Amendment. Repressive regimes welcome the Biden administration’s prosecution of Julian because it signals that imprisoning the press and silencing political dissent is practised and endorsed by the United States. Bringing this shameful prosecution demeans the values that the United States says it stands for. It reduces trust in both the US and the UK legal systems.
“Julian’s prosecution is vigorously opposed by The New York Times and the Washington Post, as well as the National Union of Journalists, Amnesty International, Reporters Without Borders and virtually every press freedom and human rights organisation in the West, together with parliamentarians from around the world”.
Lawmakers in the United Kingdom, Germany, Italy and Australia have renewed their calls for the Biden Administration to abandon the prosecution as international political pressure grows. A group of German MPs have written to Chancellor Angela Merkel, asking her to raise the issue with President Biden during her forthcoming trip to Washington.
Two days after blocking Julian Assange’s extradition to the United States, District Judge Vanessa Baraitser has denied Assange’s bail application, keeping him in custody at HMP Belmarsh while the U.S. appeals the decision.
Lawyers for Assange today argued to release Assange immediately, saying he would accept stringent conditions including house arrest. Defense lawyer Ed Fitzgerald said the “natural consequences” of the judge’s ruling on Monday, which ordered Assange’s discharge, “must be that he regains his liberty, at least conditionally.”
Fitzgerald argued that since October 2019, Assange has been detained solely on the basis of the U.S. extradition request. Now that the judge has ruled against extradition, there is no more reason to keep him in prison. Fitzgerald noted that outgoing U.S. prosecutor Zachary Terwilliger, reacting to the blocking of Assange’s extradition, told the press yesterday that he wasn’t even sure if the incoming Biden administration intends to continue its prosecution of Assange.
“It will be very interesting to see what happens with this case,” Terwilliger said. “There’ll be some decisions to be made. Some of this does come down to resources and where you’re going to focus your energies.”
Fitzgerald also argued that Assange must be released for his own safety. Belmarsh has seen a spike in COVID19 cases in December, and a fellow inmate has recently committed suicide.
Finally, Fitzgerald said Assange should be freed for “broader reasons of humanity,” to finally be allowed physical contact with his family—his partner and their two young children.
Prosecutor Clair Dobbin, acting for the U.S., said that the denial of Assange’s extradition, based on mental health grounds — the judge ruled it would be unjust and oppressive” to extradite Assange due to the high risk of suicide — “hangs by a single thread.” Dobbin said that Assange’s seeking of asylum in the Ecuadorian Embassy in London shows his determination to avoid U.S. extradition, and she noted WikiLeaks’ assistance of whistleblower Edward Snowden as he sought asylum after disclosing NSA documents to journalists.
Judge Baraitser ruled that because the U.S. has signaled its intent to appeal the case, “As far as Mr Assange is concerned, this case is not yet resolved.” She noted Assange has previously shown willingness to “abscond”, and said she finds the conditions at Belmarsh “bear no resemblance” to those she found he would endure if sent to the United States. The judge denied Assange’s bail application and proceedings concluded.
The United States now has 13 more days to formally submit its appeal of the extradition decision, and the U.K.’s High Court will decide whether to hear the case.
Judge blocks the extradition of Julian Assange to the United States, ruling the abusive U.S. prison system could not protect him from suicide
In a ruling in which she accepted nearly every argument from U.S. government, Judge Vanessa Baraitser agreed with the defense’s claims that the U.S. prison conditions Assange would face if he were extradited, including solitary confinement, Special Administrative Measures, and extreme restrictions at ADX Florence, would drive Assange to suicide. She ruled it would therefore be unjust to extradite Assange to the U.S. and ordered his release.
The U.S. will appeal the decision.
Judge Baraitser summarized her lengthy opinion and the arguments at issue, siding with the prosecution at virtually every step, upholding dangerous arguments that would undermine the First Amendment protections of a free press. The judge ruled:
The U.K. Extradition Act should take precedence over the U.S.-U.K. Extradition Treaty, and the former removed the clause barring extradition for political offenses
The charges against Assange in the U.S. would be considered offenses in the U.S.
Assange’s conduct “went beyond that of a journalist” in agreeing to help Chelsea Manning crack a password and in telling her that “curious eyes never run dry,” encouraging her to leak more files
The release of unredacted cables was “indiscriminate”
Defense arguments about Assange’s political opinions were “extraneous”
There was insufficient evidence that the charges were “pressurized” by the Trump Administration and instead showed healthy internal debate
Though the intelligence community has harshly criticized WikiLeaks, it doesn’t speak for the administration
It isn’t the UK court’s place to comment on the case of UC Global spying on Assange in the Ecuadorian Embassy, as it doesn’t have access to court documents in the case against UC Global in Spain
Assange’s prospective jury pool in the Eastern District of Virginia would come from a large county, can’t prove it would only be ex-national security and ex-military officials
Challenges of the U.S. prosecution’s “overbroadness” and “vagueness” should be made in a U.S. court, not adjudicated here, no reason to think Assange wouldn’t have constitutional rights when tried in the U.S. — “This court trusts that a US court will properly consider Mr Assange’s constitutional right to free speech”
On whether it would be oppressive to extradite: I accepted Prof Kopelman opinion that Mr Assange suffers from a recurrent depressive disorder, that Assange has suicidal ideation, and would be ‘single-minded’ in attempt to end his life
Potential conditions in a US prison: CIA views Assange as hostile, still a security risk; Assange likely to be sent to ADX Florence, would be held in serious isolation
The purpose of Special Administrative Measures is to minimize communications, and prisoners have extreme limitations. These conditions were considered by all experts to have deleterious impact on Assange’s mental health
Mr Assange has the intellect and determination to follow through with suicidal ideation
Therefore I rule it would be unjust to extradite Mr Assange. The US has the right to appeal.
The judge has ruled Assange should be discharged. The U.S. government asks for him to be kept in custody while they appeal; the defense requests his immediate release.
Defense lawyer Ed Fitzgerald said that the judgement itself, ruling Assange should be discharged, constitutes the strongest grounds for granting bail. However he said the defense would like to put all of its arguments forward, including the deleterious conditions in Belmarsh prison, so the defense needs time to put together the formal bail application. Court is adjourned until Wednesday 10am GMT for the full bail application. Assange will be physically produced then and will be kept in HMP Belmarsh until then.
See our full extradition hearing coverage here, with daily reports from the courtroom.
See a guide to testimony here, from experts on the history of journalism to doctors who examined Assange.
See an overview of the legal case here, summarizing the main arguments the judge considered.
Lawyers, journalists, academics, and activists testified about the enormous importance of WikiLeaks’ 2010-11 publications. They explained how the Iraq and Afghan War Logs documented previously uncounted civilian casualties, war crimes and the true nature of modern warfare, how the State Department cables exposed backroom corruption and the U.S.’s global influence, and how the Guantanamo Bay files revealed the deceitful justifications used to keep prisoners in detention. These experts testified about using WikiLeaks’ releases in their own work, in crucial legal cases, and in informing the public about what their government was doing in secret.
Why this matters
The U.S. government is attempting to portray Julian Assange as a ‘hacker’ and as someone who wanted to harm the United States, rather than a journalist performing a public service. These experts debunk that smear and show how Julian Assange’s work carries out his ideals, using transparency to achieve justice.
Psychiatrists and doctors who have interviewed, visited, and treated Julian Assange testify that he has Asperger’s syndrome, clinical depression, and is at a high risk of suicide in the event of extradition. U.S. lawyers, prison experts and a former warden testified that if sent to the United States, Assange would be held in solitary confinement under communication-gagging Special Administrative Measures, would get an extremely long prison sentence, and would likely be held post-trial in the highest-security prison in the country, ADX Florence in Colorado.
Why it matters
Section 91 of the United Kingdom’s 2003 Extradition Act prohibits extradition if “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.” Article 3 of the European Convention on Human Rights says that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The prosecution of Julian Assange is political in nature because: Trump prosecuted after the Obama administration explicitly decided not to, the Trump admin is uniquely aggressive against journalism, the prosecution is essentially revenge for WikiLeaks embarrassing and exposing the U.S. government, Espionage is a classic “political offense”, and a conviction on these charges would set a dangerous new precedent.
Why it matters
Article 4 of the U.S.-U.K. Extradition Treaty says, “Extradition shall not be granted if the offense for which extradition is requested is a political offense.”
Two anonymous former employees of Spanish surveillance company UC Global testified that the company’s director David Morales secured a contract with top Trump financier Sheldon Adelson to spy on Julian Assange in the Ecuadorian Embassy in London, from 2017 until his eviction in April 2019, and fed the recordings to United States intelligence. The whistleblowers said Morales was particularly zealous about recording Assange’s conversations with his lawyers, and even discussed kidnapping or poisoning him.
Why it matters
The Nixon Administration’s case against Pentagon Papers whistleblower Daniel Ellsberg was dropped when the defense discovered that government officials had broken into Ellsberg’s psychiatrist and the FBI had intercepted some of his phone calls. James Goodale, the lawyer who defended the New York Times’ right to publish the Pentagon Papers, wrote, “For similar reasons, the case against Assange should be dismissed, if it reaches the U.S. courts.” The testimony about Republican Dana Rohrabacher’s visit is also relevant for the case that this prosecution is heavily politicized.
Journalists who worked with WikiLeaks on the Cablegate release testified about Assange’s redaction process, care to conceal names of those who might be at risk, and digital protection of the documents to prevent accidental release. Digital experts who reviewed online records testified that it was Guardian journalists Luke Harding and David Leigh’s publication of a password that ultimately led to the unredacted publication, that actually a different leak site published the unredacted cables first and haven’t been prosecuted, and that Assange attempted to mitigate any damage that could result from the release.
Why it matters
The three publishing counts under the Espionage Act — perhaps the charges most worrying to fellow journalists as a conviction for publishing would be unprecedented — only charge Julian Assange with publishing the unredacted State Department cables in September 2011 (as opposed to the redacted cables in late 2010 and early 2011). The government alleges that Assange published recklessly, without regard for the informants and sources named in the documents.
In the second superseding indictment, Count 2 is 18 U.S.C. § 371 Conspiracy to Commit Computer Intrusions. The government argues that US Army soldier Chelsea Manning chatted over Jabber with a user ‘Nathaniel Frank’, who the government alleges but hasn’t proven is Julian Assange, and asked for help cracking a “hash”, which is an encrypted portion of a password, she was attempting to gain increased access to government databases and to disguise her identity in doing so. It argues that Assange attempted to help Manning crack this password in order to obtain more classified documents to send to WikiLeaks.
What the expert witness said
Patrick Eller reviewed the indictments against Assange and the transcripts from Chelsea Manning’s court martial in 2013 to analyze the allegation that Assange and Manning engaged in a conspiracy to conceal Manning’s identity and steal more documents. Eller found several important inaccuracies and technological misunderstandings in the government’s indictment and found that what the government alleges isn’t technically possible and if it were, it wouldn’t have been for the purpose the government alleges.
Patrick Eller debunks Manning/Assange “conspiracy”
Fellow journalists, academics, and professors testified that the Espionage Act charges against Julian Assange are unprecedented and would mark the end of First Amendment protections on journalism everywhere. Assange is charged with obtaining, receiving, and publishing government documents, activity that investigative journalists engage in every day.
Why it matters:
To extradite someone from the U.S. to the U.K., the prosecution must prove “dual criminality,” that the crime alleged in the United States would also be an offense in the United Kingdom. Furthermore, Article 4 of the U.S.-U.K. Extradition Treaty says, “Extradition shall not be granted if the offense for which extradition is requested is a political offense.”
See a thread of live-tweets of today’s hearing here
Hearing concludes, ruling to come January 4th 2021
Stella Moris, Julian Assange’s partner, speaking outside the courtroom (@DEAcampaign)
The evidentiary phase of Julian Assange’s extradition hearing concluded today, with final witness statements summarized in court. Judge Vanessa Baraitser then announced that she will deliver her ruling on January 4, 2021.
Outside the court following the proceedings, Assange’s partner Stella Moris addressed supporters and the press.
“This is a fight for Julian’s life. It is a fight for press freedom,” she said. Moris spoke about Julian facing a 175 year prison sentence, and the prosecution admitting that no one has been proven to be harmed as a result of WikiLeaks’ releases.
“The U.S. prosecution is trying to make normal journalistic activities, which are entirely legal in this jurisdiction, an extraditable offense,” she said.
“The US says it can put any journalist anywhere in the world on trial in the US if it doesn’t like what they’re publishing.”
“This case is already chilling press freedom. It is a frontal assault on journalism, on the public’s right to know,” and on our ability to hold the powerful to account.
“Terrible crimes were committed in Iraq and Afghanistan. Terrible crimes were committed in Guantanamo Bay. The perpetrators of those crimes are not in prison. Julian is.”
Gareth Peirce: Embassy spying instilled “chilling effect” on legal defense
Defense lawyer Mark Summers summarized statements by Gareth Peirce, Julian Assange’s solicitor, regarding surveillance of legal visits in the Ecuadorian Embassy and the seizure of Assange’s property after his eviction and arrest.
Peirce recounted Assange’s application for asylum and Ecuador’s reason for giving it. She explained that she learned after the fact that her legal conversations with Assange in the Ecuadorian Embassy in London were spied on, and that this surveillance instilled a “chilling effect” on the whole legal defense team as they prepared for the hearings.
The judge then rejected a defense application to consider as evidence a recent speech by U.S. Attorney General William Barr made in the middle of these proceedings and a Washington Postarticle on the AG’s comments.
While Barr didn’t mention Assange or the case in his remarks to Hillsdale College on September 16, 2020, the speech is clearly relevant to the defense argument that this prosecution is “political” in nature. As the Post explained,
The attorney general said it was he, not career officials, who has the ultimate authority to decide how cases should be handled, and he derided less-experienced, less-senior bureaucrats who current and former prosecutors have long insisted should be left to handle their cases free from interference from political appointees.
“Under the law,” Barr said, “all prosecutorial power is invested in the attorney general.”
But the judge refused to accept the statement, arguing that it is a routine speech by an attorney general and not significantly dramatic or relevant to be included at this late stage.
In announcing the date of her ruling, Judge Baraitser explained that the defense gets four weeks to submit its closing arguments, and the prosecution then gets two weeks to submit its closing arguments in response. Then her ruling will be delivered in court on January 4th, 2021, at 10:00am.
The defense read several witness statements aloud in court today, including two statements from anonymous former employees of UC Global, the Spanish security company led by David Morales which spied on Julian Assange in the Ecuadorian Embassy in London. The witness statements testify to the particular zeal Morales had in recording conversations between Assange and his lawyers as well as his contract with an American company to report the recordings back to American intelligence officials.
Anonymous witness 1: UC Global secures contract with Trump financier Sheldon Adelson
Around July 2016, by which time UC Global was already providing security services under a contract with the Government of Ecuador in London, David Morales travelled to a security sector trade fair in Las Vegas, which I wished to accompany him on, but he insisted he had to travel alone. On this trip, Mr Morales showcased the company UC Global in the Las Vegas security sector trade fair.
… After his initial travels to the Unites States, UC Global obtained a flashy contract, personally managed by David Morales, with the company Las Vegas Sands, which was owned by the tycoon Sheldon Adelson, whose proximity to Donald Trump is public knowledge (at the time Trump was the presidential candidate).
… After returning from one of his trips to the United States, David Morales gathered all the workers in the office in Jerez and told us that “we have moved up and from now on we will be playing in the big league”. During a private conversation with David, I asked him what he was referring to when he said we had moved up into “the big league”. David replied, without going into further detail, that he had switched over to “the dark side” referring to cooperating with US authorities, and as a result of that collaboration “the Americans will get us contracts all over the world”.
In addition to the new contract, after Morales’s return from Las Vegas and his comments about “the big league” and switching to “the dark side”, I learned through my conversation with Davis Morales that he had entered into illegal agreements with U.S. authorities to supply them with sensitive information about Mr. Assange and Rafael Correa, given that UC Global was responsible for the embassy security where Mr. Assange was located.
UC Global agrees to send Embassy recordings to US intelligence
as a result of the parallel agreement that David Morales has signed with U.S. authorities, Morales commented that these reports would also be sent to “the dark side”. In order to do this, David Morales began making regular trips to the United States, principally to New York but also Chicago and Washington, he told me he was traveling to talk with “our American friends”. … At times, when I asked insistently who his “American friends” were, David Morales replied “U.S. intelligence”.
2017: Increasing Embassy surveillance
From 2017, with the victory of Donald Trump, I realized that David Morales’s trips to see “the American friends”, which he did not want anyone else at the company to take part in, began to escalate. More specifically, around June or July 2017 David Morales began to develop a sophisticated information collection system inside the embassy. He asked the employees who were physically inside the embassy to intensify and deepen their information collection. The employees also received the instruction from David Morales to change the internal and external cameras of the embassy. The interior ones recorded sound. I was also informed by the employees that David Morales instructed a team to travel regularly to London to collect the camera recordings.
… After this, in Jerez packages of information were configured so that David Morales would personally bring these to American authorities, with increased details and intrusion on the privacy of Mr Assange, his lawyers, doctors and other visitors.
He showed at times a real obsession in relation to monitoring and recording the lawyers who met with the “guest” (Julian Assange) because “our American friends” were requesting it.
Anonymous witness 2 corroborates UC Global’s U.S. ties
I remember that after David Morales had returned from the United States, at a meeting with the rest of the staff he affirmed that we were moving into “the premier league”. After this I became aware that David Morales was making regular trips to the United States, the context of which my boss, David Morales, repeated to his having “gone to the dark side”. … On 24 January 2017, once Donald Trump had acceded to the presidency of the United States, David Morales sent a message over Telegram in which he wrote, “Well, I want you to be alert because I am informed that we are being vetted, so everything that is confidential should be encrypted […] That’s what I’m being told. Everything relates to the UK issue. I am not worried about it, just be alert […] The people vetting are our friends in the USA”.
Audio recording of Assange’s meetings
In early December 2017, I was instructed by David Morales to travel with a colleague to install the new security cameras. I carried out the new installation over the course of several days. I was instructed by Morales not to share information about the specifications of the recording system, and if asked to deny that the cameras were recording audio. I was told that it was imperative that these instructions be carried out as they came, supposedly, from the highest spheres. In fact, I was asked on several occasions by Mr. Assange and the Political Counsellor Maria Eugenia whether the new cameras recorded sound, to which I replied that they did not, as my boss had instructed me to do. Thus, from that moment on the cameras began to record sound regularly, so every meeting that the asylee held was captured.
Providing recordings to the U.S.
Around June 2017, while I was sourcing providers for the new camera equipment, David Morales instructed that the cameras should allow streaming capabilities so that “our friends in the United States”, as Morales explicitly put it, would be able to gain access to the interior of the embassy in real time. … Morales instructed me to place a microphone in the meeting room, placed in the PVC holder of the fire extinguisher in the meeting room, where it was glued to a magnet and then concealed at the base of the PVC plastic.
Further to this, David Morales asked me to install a another microphone, in the toilet at the end of the embassy, a place that had become strategic because Mr. Assange, who suspected that he was the subject of espionage, maintained many of his meetings there in order to preserve confidentiality. … David Morales also indicated that the aim was that the surveillance, control of information and recordings should focus on the meetings of the asylee, especially those in which he was meeting with his lawyers, who were priority targets, so the security personnel that were physically deployed in the embassy were specifically asked to monitor these meetings of Assange with his lawyers, as this was required by our “US friends”.
Extreme privacy intrusions
David Morales asked me to steal a nappy of a baby which, according to the company’s security personnel deployed at the embassy, regularly visited Mr. Assange. Morales stated that I had to steal the nappy in order to establish whether the baby was a child of the asylee’s. On this occasion, Morales expressly stated that “the Americans” were the ones who wanted to establish paternity.
See a thread of live-tweets of today’s hearing here
Witnesses: UC Global spied on Assange’s conversations with lawyers
UC Global director David Morales
The defense read several witness statements aloud in court today, including two statements from anonymous former employees of UC Global, the Spanish security company led by David Morales which spied on Julian Assange in the Ecuadorian Embassy in London. The witness statements testify to the particular zeal Morales had in recording conversations between Assange and his lawyers as well as his contract with an American company to report the recordings back to American intelligence officials.
What follows are experts from other statements read aloud:
Patrick Cockburn: WikiLeaks showed the realities of war
Patrick Cockburn is an investigative reporter for The Independent. See his article ‘Julian Assange in Limbo‘ in the London Review of Books from earlier this year.
I was in Kabul when I first heard about the WikiLeaks revelations. which confirmed much of what I and others had suspected. The trove was immense: some 251,287 diplomatic cables. more than 400,000 classified army reports from the Iraq War and 90,000 from the war in Afghanistan. Rereading these documents now I’m struck again by the constipated military-bureaucratic prose, with its sinister dehumanising acronyms. Killing people is referred to as an EOF (‘Escalation of Force’), something that happened frequently at US military checkpoints when nervous US soldiers directed Iraqi drivers to stop or go with complex hand signals that nobody understood. What this could mean for Iraqis ls illustrated by brief military reports such as the one headed ‘Escalation of Force by 3/8 NE Fallujah: I CIV KIA, 4 CIV WIA’. Decoded, ii describes the moment when a woman In a car was killed and her husband and three daughters wounded at a checkpoint on the outskirts of Fallujah, forty miles west of Baghdad. The US marine on duty opened fire because he was unable to determine the occupants of the vehicle due to the reflection of the- sun coming off the windshield’. Another report marks the moment when US soldiers shot dead a man who was ·creeping up behind their sniper position’. only to learn later that he was their own unit’s Interpreter.
These reports are the small change of war. But collectively they convey its reality far better than even the most well-Informed journalistic accounts. Those two shootings were a thousand times repeated, though the reports were rare in admitting that the victims-were civilians. More usually, the dead were automatically identified as ‘terrorists’ caught in the act, regardless or evidence to the contrary.
On why WikiLeaks and Assange are persecuted
The Wikileaks documents exposed the way the US, as the world’s sole superpower, really conducted its wars – something that the military and political establishments saw as a blow to their credibility and legitimacy. There were some devastating revelations, the helicopter video among them, but many or the secrets uncovered were not particularly significant or indeed very secret. In my view, they do not themselves explain the degree of reaction that the Wikileaks revelations provoked from the US government and Its allies: I consider this to have been their response to a perceived assault on their monopoly control of sensitive state information, which they saw as an essential prop to their authority. Making such information public as Assange and Wikileaks had done weaponised freedom of expression: if disclosures of this kind went unpunished and became the norm, it would radically shift the balance of power between government and society – and especially the media – in favour of the latter. … Wikileaks did what all journalists should do, which is to make important information available fo the public, enabling people· to make evidence-based judgments about the world around them and, in particular, about the actions of their governments, and, of those actions more than any other those that reveal the gravest of state crimes. In my view steps taken against Assange for publishing information of such great importance betrays the true motivation behind the unprecedented steps being taken to criminalise his actions. In 2010 WikiLeaks won a great victory for freedom of expression and against state secrecy and the US government Is now making every effort to reverse it.
Ian Cobain: Only leaked docs confirm what governments cover up
Ian Cobain is an investigative journalist who was with The Guardian in 2010-11.
There is always the understanding – one that is so clear that it needs not be spoken – that anyone who has knowledge of state crimes, and who comes forward to corroborate allegations about those crimes, may face prosecution.
Evidence that would support such allegations is extraordinarily difficult to obtain from within governments with disciplined intelligence agencies and civil services, and where the penalties for unauthorised disclosure can include intrusion into family life, prosecution and imprisonment, loss of livelihood and loss of pension rights.
Cobain reported on British intelligence helping the CIA kidnap an entire family and render them to Libya where they were tortured.
Almost certainly, nothing of this case would have emerged into the public sphere were it not for the unique emergence of hundreds of documents relating to the Libyan security state. The documentary evidence emerged during a serendipitous moment in Tripoli during the 2011 Libyan revolution when filing cabinets full of documents belonging to the Libyan security apparatus fell into the hands of NGO workers and journalists.
… Had the documents not emerged in the way in which they did, the British government would no doubt have continued to maintain that “the UK does not participate in, solicit, encourage or condone the use of torture for any purpose”, a claim that is completely undermined by the documentary evidence now available in respect of this case. In the event the government apologised to the couple and made a payment to the wife. A case brought by the family was settled out of court.
… Under these circumstances, it could be argued that media scrutiny is more important than ever, and that leaks and whistle-blowers remain a vital means by which state crimes can be exposed.
Guy Goodwin-Gill: Spied on in the Embassy
“On 16 June 2016, I attended a meeting at the Ecuadorian Embassy in London to discuss the international legal aspects of the asylum accorded to Mr Julian Assange. Those attending included the Foreign Minister of Ecuador, senior Ecuadorian officials, and members of Mr Assange’s legal team. Before entering the ground floor meeting room, I left my passport, phone and tablet ‘at the door’, together with unlocked luggage (I was en route to give lectures in Italy).
I naturally assumed that, given the precautions taken before entry, such a legal conference would be secure and confidential. I was therefore somewhat shocked, to say the least, to learn in late 2019 that my name featured in papers lodged in connection with legal proceedings in Spain concerning the disclosure of confidential information, that the occasion of my visit and participation had been shared with various parties, and that my ‘electronic equipment’ may have been copied and the contents also shared. …
Mr Assange is not a citizen of the United States of America and that most of the charges levelled against Mr Assange are drawn from the US Espionage Act. Espionage is not defined in international law; it is neither an international crime nor a serious crime of international concern, and it is commonly considered to be a ‘purely’ political offence, which either would not be listed as an extradition offence, or is one for which surrender would be refused. … It is against this background and the political opinions involved, therefore, that the evidence of surveillance and the sharing of confidential, privileged information needs to be considered, and an assessment made of whether these factors indicate more clearly the political motivation, intent and purpose of the extradition request, or otherwise indicate the likelihood of prejudice, punishment, detention or other restrictions on liberty by reason of extraneous circumstances, as described above…”
Stefania Maurizi is an Italian journalist who worked with WikiLeaks to report on Italian documents within the State Department cables.
Assange and the war
On more than one occasion, Mr Assange expressed to me his view that if Wikileaks had existed before the US invaded Iraq and had published what it later published earlier (the “Collateral Murder” video with respect to Iraq, for example}, the war might have been avoided or would have come to an end sooner. The fact is that what had been and was being disseminated by the governments involved, in particular the USA, was largely false, and the true picture was not being allowed to be known.
Document security
I myself was given access to 4,189 cables which could be better assessed and understood with the assistance of a knowledgeable Italian partnership. I sat down with Mr Assange and went through the cables as systematically as possible. I was given an encrypted USB stick, and once I returned to Italy I was given the password that would then allow opening the file. Everything was done with the utmost responsibility and attention. I am aware of the password that David Leigh and Luke Harding of the Guardian subsequently published in their book: it was not the same password I myself was given at the time. … That was the first time I had ever worked in any publishing enterprise involving strict procedures of that kind. Even experienced internationalcolleagues found the procedures burdensome, involving protections considerably beyond those which any of them were accustomed to exercising.
Robert Boyle: Chelsea Manning was punished by grand jury
Robert Boyle is a U.S. attorney and an expert on grand juries. His statement recounts relevant portions of Chelsea Manning’s allocution statement made at her court martial and then discusses her imprisonment for refusing to testify to a secret grand jury.
Chelsea Manning’s allocution statement
Manning explained that due to her position as an intelligence analyst, she had access to information about United States military activities in Iraq. Some of those activities contradicted the stated goals of U.S. policy. She told the court:
“[the United States military] became obsessed with capturing/killing targets on lists and being suspicious and avoiding cooperation with our host nation partners and ignoring the second and third order effects of accomplishing short-term goals and missions.
I believe that if the general public, especially the American public, had access to the information … this could spark a domestic debate on the role of the military and our foreign policy, in general, as well as it related to Iraq and Afghanistan.”
A participant in an online chat pointed Manning to Wikileaks’ online submission system. Manning was somewhat familiar with Wikileaks. In her view the organization “seemed to be dedicated to exposing illegal activities and corruption [and had] received numerous awards and recognition for its reporting activities.”
[Regarding Collateral Murder] Manning told the court that she “wanted the American public to know that not everyone in Iraq and Afghanistan were targets that needed to be neutralized, but rather people who were struggling to live in the pressure cooker environment of what we call asymmetric warfare.”
Although I stopped sending documents to [WikiLeaks], no one associated with [WikiLeaks] pressured me into giving more information. The decisions I made to send documents and information to [WikiLeaks] were my own decisions and I take full responsibility for my actions.
Manning subpoenaed, refuses to testify, punished further
Manning filed a motion to quash the subpoena:
she argued that the subpoena was improper in that it was an effort by the government to punish her for the release of the information to Wikileaks. Manning also pointed out that the government had available to it her exhaustive sworn statement before the Military Court that was given at the time of her guilty plea and which truthfully set forth the full extent of her knowledge, including but not limited to her contacts with Wikileaks. Manning asserted that compliance with the subpoena would also enable the government to set a “perjury trap”. Should there be inconsistencies, even minor inconsistencies between her court martial testimony and grand jury testimony she could be criminally charged with committing perjury.
Manning was imprisoned for refusing to testify:
she was placed in solitary confinement “despite the stated concerns regarding the effects of prolonged isolation [that compound[ed] the trauma I suffered from my previous time of confinement.” Manning remained in isolation for 28 days, an experience that caused her “extraordinary pain.”
He quotes her own statement:
I understand that this grand jury [is] related to my disclosures of classified and unclassified information and records in 2010. I acted alone in these disclosures. The government is still preoccupied with punishing me, despite a court martial, sentence and presidential commutation nearly two years ago
Manning believed the U.S. government wanted information ahead of Assange’s hearing:
As Manning herself has stated “I suspect that [the government) [is] simply interested in previewing my potential testimony as a defense witness, and attempting to undermine my testimony … This justifies my theory that participating in this investigation functions simply to abuse the justice system for political ends.”
Andy Worthington
Andy Worthington is a UK-based activist and researcher who has studied the Guantanamo Bay prison for over a decade. See his first statement here and supplemental second statement here.
In its latest release of classified US documents, WikiLeaks is shining the light of truth on a notorious icon of the Bush administration’s “War on Terror” — the prison at Guantánamo Bay, Cuba, which opened on January 11, 2002, and remains open under President Obama, despite his promise to close the much-criticized facility within a year of taking office.
In thousands of pages of documents dating from 2002 to 2008 and never seen before by members of the public or the media, the cases of the majority of the prisoners held at Guantánamo — 765 out of 779 in total — are described in detail in memoranda from JTF-GTMO, the Joint Task Force at Guantánamo Bay, to US Southern Command in Miami, Florida, known as Detainee Assessment Briefs (DABs).
These memoranda, which contain JTF-GTMO’s recommendations about whether the prisoners in question should continue to be held, or should be released (transferred to their home governments, or to other governments) contain a wealth of important and previously undisclosed information, including health assessments, for example, and, in the cases of the majority of the 172 prisoners who are still held, photos (mostly for the first time ever). …
Crucially, the files also contain detailed explanations of the supposed intelligence used to justify the prisoners’ detention. For many readers, these will be the most fascinating sections of the documents, as they seem to offer an extraordinary insight into the workings of US intelligence, but although many of the documents appear to promise proof of prisoners’ association with al-Qaeda or other terrorist organizations, extreme caution is required.
The documents draw on the testimony of witnesses — in most cases, the prisoners’ fellow prisoners — whose words are unreliable, either because they were subjected to torture or other forms of coercion (sometimes not in Guantánamo, but in secret prisons run by the CIA), or because they provided false statements to secure better treatment in Guantánamo. …
Uncomfortable facts like these are not revealed in the deliberations of the Joint Task Force, but they are crucial to understanding why what can appear to be a collection of documents confirming the government’s scaremongering rhetoric about Guantánamo — the same rhetoric that has paralyzed President Obama, and revived the politics of fear in Congress — is actually the opposite: the anatomy of a colossal crime perpetrated by the US government on 779 prisoners who, for the most part, are not and never have been the terrorists the government would like us to believe they are.
On the indictment and Trump’s view toward journalism
The indictment of Mr. Assange poses a grave threat to press freedom in the United States. This case is the first in which the U.S. government has relied on the 1917 Espionage Act as the basis for the prosecution of a publisher. The indictment focuses almost entirely on the kinds of activities that national security journalists engage in routinely and as a necessary part of their work-cultivating sources, communicating with them confidentially, soliciting information from them, protecting their identities from disclosure, and publishing classified information.
The indictment’s implicit but unmistakable claim is that activities integral to national security journalism are unprotected by the U.S. Constitution and even criminal. … In my view, the indictment of Mr. Assange was intended to deter journalism that is vital to American democracy, and the successful prosecution of Mr. Assange on the basis of the activities described in the indictment would certainly have that effect.
On the wide breadth of the Espionage Act
These provisions are extremely broad, as many others have observed,7 and they criminalize a “wide range of activities that may bear little resemblance to classic espionage.”8 The Act exposes leakers to severe penalties without regard to whether they acted with the intent to harm the security of the United States.9 As it has been construed by the courts, the Act is indifferent to the defendant’s motives,10 and indifferent to whether the harms caused by disclosure were outweighed by the value of the information to the public. … By its terms, the Act also provides for the imposition of these same severe penalties on subsequent publishers-i.e., not just on leakers, and not just on the news organizations that first publish the leaks, but on anyone who later shares the leaked information through any channel, formal or informal.
On the importance of publishing government secrets
At least in the United States, informed public deliberation about matters relating to war and security would be impossible if the press did not publish classified information. … There are structural reasons why unauthorized disclosures of classified information are so vital to the public’s ability to understand, evaluate, and influence government policy relating to war and security. … lf the press did not publish classified information without authorization, public debate about war and security would take place in an information environment controlled almost entirely by executive branch officials.
Using the Espionage Act against a publisher
The government’s use of the Espionage Act against government insiders who supply classified information to the press poses a serious threat to the ability of the press to inform the public about matters relating to war and security. The government’s indictment of a publisher under the Act, however, crosses a new legal frontier. … The conviction of Mr. Assange under the Act for the activities described in the indictment would have a significant chilling effect on journalism that is vital to the proper functioning of American democracy. … Some government officials have argued that the indictment should not be understood as a threat to press freedom because Mr. Assange is not a journalist, or because WikiLeaks is not a member of the press. This argument misses the point. The indictment is mainly a description of Mr. Assange engaging in core journalistic activities.
See a thread of live-tweets of today’s hearing here
Former warden: Assange would get “desolate and degrading” Special Administrative Measures
Maureen Baird
Former prison warden Maureen Baird, who presided over the Metropolitan Correctional Center in New York and who worked in the U.S. prison system for more than 20 years, testified today about the Special Administrative Measures (SAMs) that she believes Julian Assange would be subjected to if he were extradited to the United States.
At issue are Assange’s potential pre-trial and post-trial prison conditions, because the U.K. cannot extradite if doing so would be “unjust or oppressive” or would subject the defendant to “inhumane or degrading treatment.”
What are Special Administrative Measures?
Special Administrative Measures are a layer of extreme gagging restrictions on a prisoner that render them effectively incommunicado. SAMs are an additional layer on top of an individual prison’s conditions, such as solitary confinement. SAMs are only imposed by the U.S. Attorney General after a determination is made with the input of an intelligence agency. Baird testified that in Assange’s case, it’s likely the CIA and the Department of Justice would be involved in the decision to place him under SAMs, and the the direction would come from Attorney General William Barr.
Baird testified about the inmates she oversaw who were under SAMs:
“Inmates were in solitary confinement, technically, for 24-hours per day. There was absolutely no communication, by any means, with other inmates. The only form of human interaction they encountered was when correctional officers opened the viewing slot during their inspection rounds of the unit, when institution staff walked through the unit during their required weekly rounds, or when meals were delivered through the secure meal slot in the door.”
Inmates are allowed 30 minutes of phone time per month, she testified, and all calls are monitored by an FBI agent and must be scheduled two weeks in advance.
The effects of SAMs
Baird testified that to call conditions under SAMs “unduly harsh” is an understatement, and that they afford no real avenue to challenge or appeal. In her statement to the court, Baird agreed with Joel Sickler’s description of conditions for SAMs inmates as “desolate and degrading” as well as Lindsay Lewis’ description of the “devastating effects caused by isolation.”
The conditions are so bad, she wrote, that she can’t believe they still exist:
“I am uncertain how the BOP has been able to continue with these types of isolation units, given all the studies, reports and findings of the horrific physical and psychological effects they have on inmates.”
SAMs at the Colorado Supermax
The defense and prosecution agree that if extradited, Assange would be held pre-trial at the Alexandria Detention Center in Virginia. The defense argues that post-trial, Assange would be held in ADX Florence in Colorado, the highest security prison in the United States which its former warden has called a “clean version of hell.” A former prison designator herself, Baird testified today that she believes it’s “very likely” that if Assange is placed under SAMs, he would be detained at the ADX in the segregated housing unit.
“As someone who spent the majority of her adult life working for the BOP and as a former Designator, who decided where inmates would serve their sentences, absent a medical requirement, or a protected Witness Security Case, I am not familiar with any alternative long-term options, aside from the ADX, for offenders under SAMs.”
While the prosecution claims they don’t know where Assange would be imprisoned if convicted, they have argued at length in court and by way of cross-examination that the ADX is a humane facility. Similarly, while the prosecution claims they don’t know whether Assange would be subject to SAMs, they have argued that SAMs are applied for good reason, that inmates can remove SAMs restrictions, and that SAMs inmates can sometimes reduce restrictions to be able to speak to other prisoners.
Baird’s testimony directly contradicts many of the assertions made by the prosecution’s chief witness, assistant U.S. attorney Gordon Kromberg, in his affidavits to the court. Kromberg listed many of the social and therapeutic programs offered at the ADX in Colorado. Baird replied,
“For anyone to suggest that an inmate assigned under SAMs would be able to participate in group counseling is baffling to me. The main premise of assigning SAMs is to restrict a person’s communication and the only way to accomplish this is through isolation.”
Kromberg also suggested that inmates under SAMs could challenge their conditions through an Administrative Remedy process. As Baird testified today, a prison warden has no ability to modify how SAMs are applied and they are applied equally to prisoners across the board.
“During my 28 years with the BOP, there were times that I was responsible for responding to Administrative Remedies. With certainty, I declare, for the purpose of challenging a SAMs, it would be a futile process. The BOP exercises no control/jurisdiction over SAMs imposed by the Attorney General. Wardens are bound to abide by the SAMs imposed on an inmate.” … “During my term as Warden at MCC New York, I have never seen an inmate have SAMs removed, only extended.”
Lindsay Lewis: Assange will “almost certainly” be placed under SAMs
Lindsay Lewis
The defense then called Lindsay Lewis, a U.S. attorney who has represented Abu Hamza (whose legal name is Mostafa Kamel Mostafa), a convicted terrorist who is detained at the ADX Florence in Colorado. Central to her testimony was the fact that when Hamza faced extradition from the United Kingdom to the United States, the U.S. gave assurances to both English courts and the European Court of Human Rights that he wouldn’t be held at ADX Florence without a medical exam to determine if he could survive daily activities. She said Assange would “almost certainly” be placed under Special Administrative Measures if extradited to the United States.
The U.K. courts operated, Lewis said, under the assumption that it was “impossible” that Hamza — a double amputee with diabetes and blindness in one eye — would pass such a test and therefore would not be detained at the ADX. Hamza has been imprisoned under SAMs and in solitary confinement for the last eight years and has been imprisoned at the ADX Florence since 2015.
Lewis explained in her witness statement that SAMs “limit [Hamza’s] contacts not just with the outside world, but also with his family, other inmates and even his attorneys.” She says the restrictions SAMs impose on her as his lawyer limit her own ability to describe his conditions to the court.
The restrictions are so absurd, she said, that Hamza was written up for violating SAMs when he “improperly tried to convey, in a letter to one of his sons, his love to his one year old grandson” because the grandson is not an approved contact for him to speak to.
Lewis also testified about the inability to redress grievances under SAMs. The prosecution’s witness Gordon Kromberg suggested that SAMs could be lifted if appealed and sometimes aren’t renewed after a year. Lewis testified, as Baird did earlier, that inmates must exhaust the “long, drawn-out” Administrative Remedy process before they can sue the Bureau of Prisons in court to try to get SAMs removed. Lewis said she’d never heard of any case in which an inmate successfully got SAMs removed through the Administrative Remedy process.
Anonymous witnesses to testify on Embassy spying
The judge granted anonymity to two witnesses from U.C. Global, who will testify about that company’s spying on Julian Assange in the Ecuadorian Embassy in London. El Pais reports that U.C. Global director David Morales traveled to Las Vegas where he secured a contract with a company working for top Trump financier Sheldon Adelson to spy on Assange and provide recordings to the CIA. The witness statements will be read aloud in court later this week.
See a thread of live-tweets of today’s hearing here
Assange would face solitary confinement and extreme restrictions if sent to the United States
Yancey Ellis
The final week of the testimony portion of Julian Assange’s extradition hearing began with Yancey Ellis, a former judge advocate in the U.S. Marines who practices in Alexandria, Virginia. Ellis has defended many clients who would be held at the Alexandria Detention Center (ADC) where Assange would be detained before trial if he were extradited.
At issue is whether extraditing Assange be “cruel or oppressive” and whether he would be subject to “torture or to inhuman or degrading treatment or punishment.”
Ellis believes it is “most likely” that Assange would be held in the X block at the ADC, the housing unit for administrative segregation (ad-seg) which he said constitutes solitary confinement. Assange would be held there due to a combination of his notoriety and his mental health condition, Ellis said.
Speaking from his experience visiting clients at the ADC, Ellis said that inmates on the X block live in 50’ square cells for 22-23 hours a day. They have no access to therapeutic or other programs and no interaction with other prisoners. In his witness statement, Ellis writes, “There is no outside recreational or exercise area at the Alexandria jail and I do not recall there being any windows in the ADSEG unit.”
The prosecution has submitted a witness statement from assistant U.S. attorney Gordon Kromberg, who wrote that inmates in ad-seg at the ADC can access prison programs and can speak through doors or windows to communicate from cell to cell. Ellis writes that “several assertions made by Mr. Kromberg are incorrect or incomplete” and has tried to communicate with a prisoner through cell doors and “you have to scream” to be heard.
“The whole point of this unit is to keep you away from other inmates,” he said.
These are all the basic minimum physical conditions of the X block, Ellis said, and Special Administrative Measures (SAMs) impose further restrictions on outside communications on top of that.
Ellis also spoke about mental and physical health care at the facility. The ADC doesn’t employ a doctor but contracts with part-time psychiatrists. Ellis said that many of his clients needing their medication to be modified would go several weeks between psychiatric visits.
Ellis writes that inmates at risk of self-harm are placed in a “suicide prevention suit that immobilize the arms away from the body, removing shoe strings and sheets, etc.”
“The extent of mental health care is that a social worker or counselor comes around to check on you every once in a while to ensure basic functioning,” he said.
Joel Sickler: Assange would get little to no health care
Joel Sickler
Next the defense called Joel Sickler, a prison advocate for more than 40 years who founded the Justice Advocacy Group in Virginia. Sickler has been to the Alexandria Detention Center (ADC) dozens of times and has many clients detained there, and he testified about his experiences there. He also discussed his knowledge of the ADX Florence in Colorado, the Supermax federal prison where Assange is likely to be imprisoned post-trial if extradited and convicted.
Sickler testified that he believes that pre-trial in the ADC, Assange will be housed in ad-seg on the X block. He agreed with Ellis’ characterization of the prison cells there as about the “size of a parking space.”
Sickler also noted that AUSA Kromberg claims that inmates in ad-seg at ADC can communicate with each other but that “in practice, that’s ridiculous.”
“He absolutely won’t have communication with other inmates,” he said.
Inmates on this unit have very limited access to the outside world, Sickler said. “You’re twiddling your thumbs. You’ll have access to reading material, but your whole world is the four corners of that room.”
He also testified about the lack of health care at the Alexandria facility:
”Mr. Assange should expect to receive only the most limited medical services at the ADC. Any suggestion to this Court that he will be fully evaluated and assessed for medical or mental health conditions is misleading.”
Furthermore, Sickler said that legal opportunities to challenge your status under SAMs are incredibly small. “It’s a well-known fact here that even the most minor administrative appeals by inmates are denied,” he said. “I’ve probably filed 1,000 or more appeals, winning a dozen at most.” The chances of appealing SAMs are “remote to nil.”
The prosecution then spent the afternoon taking Sickler through Bureau of Prison policies and claims about their staffing, health care provisions, and the ADX’s levels of housing through which inmates can work to reduce their restrictions and ultimately get off of SAMs.
But time and again, Sickler would acknowledge that while what the BOP claims on paper is far different than what happens in practice. He said that the Marshall Project’s reports on the ADX Florence are “spot on.”
Prosecutor Clair Dobbin cited the case of Cunningham v BOP, in which inmates sued the Bureau of Prisons and ultimately agreed to a settlement which led to mentally ill inmates being moved out of the ADX. Sickler addressed that case in his own statement, noting that just three years after that settlement was upheld, “that same Court would find that the health care in ADX failed to meet basic standards of care for inmates.”
Dobbin also cited the fact that Umar Farouk Abdulmutallab, a convicted terrorist at the ADX, has said he could see family members while detained there. But as the New York Timesreported in 2017, Abdulmutallab “sued the Justice Department, arguing that prison officials are violating his rights by holding him in solitary confinement, restricting his communication with relatives and force-feeding him when he goes on a hunger strike to protest.”
Responding again to Dobbin’s reading through BOP policies as to the care they provide, Sickler said, “What I see ongoing in practice is entirely different.”
See a thread of live-tweets of today’s hearing here
Judge admits political nature of Assange’s case
Before testimony began today, Judge Baraitser acknowledged the political dimensions in the case against Julian Assange for the first time. Amid discussion of when closing arguments will be submitted, and how much time is needed to prepare them after testimony concludes next week, the judge asked the defense whether the U.S. presidential election would impact the defense’s case.
Lawyer Ed Fitzgerald said, “Much of what we say about Mr. Trump personally goes to why this was initiated, that will all remain good,” and, “Much of what we say about the fate which awaits Mr. Assange remains good because it’s about systemic faults in the prisons and his underlying conditions.” But “the situation would be all the worse” if Trump were to win re-election, he said.
The judge said that she had hoped to give her ruling or at least have closing arguments in before the U.S. election on November 3rd. But in granting the defense four weeks to submit closing arguments after testimony and the government a further two weeks to respond, she said her ruling will have to come in the new year.
WikiLeaks editor-in-chief Kristinn Hrafnsson reacted to these comments immediately:
In asking the defense how the outcome of the U.S. presidential election would affect its case and indicating that she had hoped to issue a ruling before election day, District Judge Vanessa Baraitser has acknowledged what has been clear since even before the first indictment against Julian Assange was unsealed, that this is a politically motivated prosecution.
Article 4 of the U.S.-U.K. Extradition Treaty says, “Extradition shall not be granted if the offense for which extradition is requested is a political offense.”
Jakob Augstein: Assange “feared for the safety of informants”
The defense then read a brief witness statement from Jakob Augstein, editor of the German weekly Der Freitag, which in 2011 published an article indicating that the book by Guardian journalists Luke Harding and David Leigh had revealed a password that could be used to decrypt files containing the unredacted State Department cables. The article was titled “Leak at WikiLeaks,” referring to former WikiLeaks staffer Daniel Domscheit-berg, who fell out with Assange in 2010 and took files with him to attempt to start a new leak site.
Augstein’s statement alludes to the fact that it was a mirror created or controlled by Domscheit-berg that contained the file that could be decrypted with this password.
It also confirms that Julian Assange had contacted Augstein in advance of the article’s publication to express that he “feared for the safety of informants.” As we’ve reported, the government’s publishing charges are only for the unredacted State Department cable publications and they hinge on their claim that Assange didn’t care about the release of sources’ names.
Patrick Eller debunks Manning/Assange “conspiracy”
Today’s first live witness was digital forensic expert Patrick Eller, who served in the US Army for 20 years as a criminal investigator. Ellis is now president of Metadata Forensics, which provides digital investigation and forensic examination in both civil and criminal cases.
Eller reviewed the indictments against Assange and the transcripts from Chelsea Manning’s court martial in 2013 to analyze the allegation that Assange and Manning engaged in a conspiracy to conceal Manning’s identity and steal more documents. The argument goes that when Manning chatted over Jabber with a user ‘Nathaniel Frank’ (who the government alleges but hasn’t proven is Julian Assange) and asked for help cracking a “hash”, which is an encrypted portion of a password, she was attempting to gain increased access to government databases and to disguise her identity in doing so.
Eller’s testimony establishes several key points:
The attempted cracking of the password hash was not technologically possible in 2010, when the conversation happened
First, some background on how encrypting a password works: an algorithm turns plaintext (a regular password with numbers, letters, and special characters) into a “hash value” (a unique jumble of characters written in a hexadecimal, a numbering system that uses 16 characters) and stored in a Security Accounts Manager (SAM) database, and then encrypted with a key, which itself is stored in both the SAM file and a System file. This means one needs both the SAM file and System file to crack a password. Ellis explains:
“Manning only retrieved the encrypted hash value from the SAM file. She did not have the System file or the portions of the SAM file that are required to reconstruct the decryption key for the hash. This decryption step is necessary before the hash can be cracked and it is a separate process from cracking the hash by guessing difference password values with rainbow tables. At the time, it would not have been possible to crack an encrypted password hash such as the one Manning obtained.”
Even if it were feasible, the purpose would not have been to conceal Manning’s identity
“The government allegation that there was an attempt to gain anonymity is greatly undermined by the tracking system which identified users.” The government says that Manning wanted to crack the password to be able to log in to a ‘ftpuser’ account, which it says would make her look like an administrator, rather than her Bradley.manning account she was given as an intelligence analyst. But the military tracked computers based on IP addresses, not account details, so even if she were to login with the admin account, it would still be traced back to her identifiable computer.
Even if it were feasible, it would not have given Manning any increased access to government databases
The March 2010 jabber chat about hash cracking came after Manning had already leaked the Guantanamo Bay Detainee Assessment Briefs, the Iraq and Afghan war logs, and the Rules of Engagement, so the only documents left are the State Department cables, which are stored in a government-wide intranet (an internal version of an internet) called SIPRNet. Accessing this network does not require login information, so she already had access to it well beforehand. Furthermore, Eller testified, everyone tasked with using secret government documents would have had access to this database. Asked to give an estimate as to how many people had SIPRNet access, Eller said it was “in the millions.”
What is far more likely, Eller testified, is that Manning wanted to use the admin account in order to download movies, music, and computer games onto her computer. The type of account to which Manning would have gained access would have had administrative privileges making it much easier to access the T-Drive, a shared database where other users uploaded these kinds of files.
Eller’s testimony also established that he and the U.S. government both have no way of proving that ‘Nathaniel Frank’ was actually Julian Assange.
Proceedings resume on Monday at 10:00am London time.
See a thread of live-tweets of today’s hearing here
Cryptome published unredacted cables first; medical testimony continues
At the very end of today’s proceedings, the defense read aloud an important and consequential witness statement from John Young, host of cryptome.org.
“I published on Cryptome.org unredacted diplomatic cables on September 1, 2011 under the URL https://cryptome.org/z/z.7z and that publication remains available at present. … Since my publication on Cryptome.org of the unredacted diplomatic cables, no US law enforcement authority has notified me that this publication of the cables is illegal, consists or contributes to a crime in any way, nor have they asked for them to be removed.”
The statement is a critical piece of evidence against the U.S. government’s indictment of Assange for publishing the unredacted diplomatic cables in 2011. The prosecution must prove “dual criminality,” that Assange’s alleged offenses in the U.S. would be a crime in the U.K. as well. Republishing classified documents is not a crime under the U.K.’s Official Secrets Act the way that publishing them is.
This witness statement corroborates previous testimony from John Goetz and others on the chronology of events, that WikiLeaks was not the first to publish the unredacted cables and in fact took great care to prevent names from being disclosed.
The defense also read a statement from Christopher Butler of the Internet Archive, also known as the Wayback Machine, a U.S.-based historical internet record based on snapshots of websites over time. Butler confirms that the Internet Archive still to this day hosts records of WikiLeaks’ publications and that the U.S. government has never attempted to take this data offline.
Medical experts on the dangers of extradition
Today’s proceedings mostly consisted of live testimony from Dr. Nigel Blackwood, the prosecution’s psychiatrist who interviewed Assange in prison, and Dr Sondra Crosby, who visited Assange multiple times in the Ecuadorian Embassy and again in Belmarsh. Once again, because this testimony dealt with Julian’s personal medical condition and history, we’ll try to summarize the relevant portions rather than provide every detail.
Dr Nigel Blackwood is a consultant forensic psychiatrist with the NHS, and he produced a report for the prosecution on Assange’s mental health and his suicide risk in the event of extradition. Dr. Blackwood has previously provided testimony supporting extradition in the case of Korcala v Polish Judicial Authority in 2017.
Medical testimony is used to establish whether “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him”, as that would violate Section 91 of the U.K.’s 2003 Extradition Act, and to prevent violation of Article 3 of the European Convention on Human Rights, which states “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Dr. Blackwood determined Assange to be “moderately depressed” and acknowledged, “There is undoubtably some risk of suicide attempt in the event of extradition,” but he doesn’t feel that it rises to a “high risk.” Blackwood relied on the standard established in USA v Turner, that the person facing extradition must be “capable of controlling” their own risk of suicide, and he found that Assange, whom he called a “very resilient” and “resourceful” man, would be capable of doing so.
In addition to USA v Turner, there is also relevant precedent in USA v Lauri Love, in which the U.K.’s High Court overturned the lower court judge’s ruling that Love could be extradited because the judge relied too heavily on the assurances that the U.S. Bureau of Prisons could provide adequate mental health care and prevent suicide in prison.
Defense lawyer Ed Fitzgerald therefore asked Dr. Blackwood for his to comment as to whether the conditions Assange would be detained under in the United States could be said to be “broadly equivalent” to those in the U.K. At issue are both pre-trial conditions and prospective post-trial conditions. The defense and prosecution agree that if extradited, Assange would be held before trial at Alexandria Detention Center (ADC) in Virginia. The defense argues that if convicted, Assange would be sent post-trial to ADX Florence, a Supermax prison in Colorado. The prosecution doesn’t confirm that Assange would be sent there but provides evidence regarding the facility to respond to the defense’s arguments.
In court, Dr. Blackwood admitted that he made his determination relying on the U.S. government’s supportive affidavit from assistant U.S. attorney Gordon Kromberg, wherein Kromberg argued that “there is no solitary confinement” at the ADC in Virginia. He made his statement before seeing the witness submission of Eric Lewis, lawyer for Reprieve who testified about his clients’ experience under SAMs and in solitary at the ADC. Dr. Blackwood would only say that he accepts there is a range of opinion as far as solitary confinement, but he agreed broadly that placing Assange in solitary confinement under SAMs, which would virtually bar him from communicating with the outside world, would be “deleterious” to his mental health. Dr. Blackwood also agreed that the question should be dealt with by experts on U.S. prisons, which he is not.
Dr. Crosby: “very high risk” of suicide if Assange is extradited
Dr. Sondra Crosby
This afternoon we heard testimony from defense witness Dr. Sondra Crosby, an associate professor of medicine and public health at Boston University and an expert on the physical and psychological impact of torture, who visited Assange in the Ecuadorian Embassy in London, beginning in October 2017.
As clinicians with a combined experience of four decades caring for and about refugees and other traumatised populations, we recently spent 20 hours, over three days, performing a comprehensive physical and psychological evaluation of Mr Assange. While the results of the evaluation are protected by doctor-patient confidentiality, it is our professional opinion that his continued confinement is dangerous physically and mentally to him, and a clear infringement of his human right to healthcare.
Dr. Crosby has also written that her February 2019 visit in the embassy was spied on and her medical notes were taken. “Mr. Assange’s right to doctor-patient confidentiality was violated, and his confidential information had been breached,” she said.
Testifying by remote video, Dr. Crosby today said that in the embassy, Assange described symptoms of PTSD and psychological distress, and he complained of a number of physical symptoms that Dr Crosby found “very worrisome” but she had no way of performing a necessary physical evaluation at the time.
On the question of whether it would be unjust to send Julian to the United States, Dr. Crosby said, “Assange is at a very high risk of completing a suicide if he were to be extradited.”
Proceedings continue tomorrow at 10:00am London time.
See a thread of live-tweets of today’s hearing here
Warning: this post discusses suicidal ideation. As mentioned yesterday, for Assange’s privacy we won’t report every detail of today’s testimony, dealing with Assange’s very personal private, social, and medical history.
Today Dr. Quinton Deeley, National Health Service psychiatrist who specializes in autism, ADHD, & other mental health issues, took the stand to discuss Julian Assange’s diagnosis of Asperger’s syndrome, an autism spectrum disorder (ASD). Dr. Deeley interviewed Assange several times over a period of several months, and he spoke to Assange’s partner, mother, and friends to corroborate his findings and prepare a report. Dr. Deeley also agreed with what Dr. Kopelman testified to yesterday, that Assange would be a “high risk” of suicide if he were ordered to be extradited.
Dr. Deeley explained that Assange had taken two ADOS tests leading to his diagnosis, and he observed “obsessive rumination” and “rigidity of thought”, typical ASD symptoms. In brief defense questioning, Dr. Deeley also spoke about the high rate of suicides in solitary confinement and the dangers of isolating Assange in both UK and US prisons.
The prosecution then spent nearly its entire cross-examination questioning this diagnosis, attacking Dr. Deeley’s findings and impartiality.
Prosecutor James Lewis suggested that the fact that Assange has hosted a televised interview show, written books and articles, and given speeches indicate his sociability and contradict the diagnosis of Asperger’s. Lewis even played a video of Assange speaking at the Frontline Club in 2010 by Skype, answering questions about WikiLeaks’ releases, redacting to protect informants, and partnering with fellow media organizations.
Dr. Deeley rejected the idea that these activities contradict a diagnosis at all. On the contrary, they show Assange in his comfort zone, he said, speaking at length on issues of which he has substantial interest and knowledge in a well-defined setting. In these interviews and Q&A sessions, Assange is an “expert on the material” and knows the expectations of format, so he doesn’t have to pay attention to social etiquette or make small talk.
Lewis said the fact that Assange has sole custody of a child was “inconsistent” with the diagnosis, suggesting that “no court” would give custody to someone who had “difficulty developing peer relationships.” He also said that those on the autism spectrum “lack empathy,” and his mother described him as an “extraordinarily selfless father”, suggesting these are “inconsistent” as well.
Dr. Deeley rejected this idea too, saying that those on the autism spectrum can be parents, and it isn’t unusual for them to be “dutiful, principled,” and moved by the idea of suffering in general.
Lewis questioned Dr. Deeley’s impartiality, asking if he was trying to “excuse” behavior or confirm a diagnosis. Dr. Deeley said he was giving a comprehensive summary, and that trying to drill down on one item of supportive evidence for the diagnosis misses the full picture. Lewis said that Dr. Deeley himself often looked at the ceiling when giving answers in court, rather than making eye contact, insinuating that eye contact isn’t relevant to a diagnosis and even saying “we all do that.” Dr. Deeley seemed taken aback, saying that he didn’t think he would score highly on an ADOS test (meaning he wouldn’t be found on the autism spectrum), that he was presenting to the defense, the judge, the prosecution; eye contact alone isn’t a definitive indicator.
On final defense re-examination, Dr. Deeley confirmed his corroboration of the diagnosis. “It is clear to my mind that Julian Assange is on the autistic spectrum,” he said.
Prosecution’s first witness, Seena Fazel
The prosecution called its first witness this afternoon, as scheduling issues disrupted the defense witness list which will continue tomorrow. The prosecution called Seena Fazel, Professor of Forensic Psychiatry at the University of Oxford, who specializes in prison suicide. Fazel interviewed Assange this summer, notably after what doctors agree was his most severe period of depression at the end of 2019.
Fazel testified that he found Assange to be “moderately depressed,” but accepts that he was “severely depressed” in late 2019 and was treated with medication, and that Assange’s depression intensity is “episodic” and liable to fluctuate dependent on his circumstances. However, he said, he doesn’t find Assange’s mental capacity such that he is unable to manage his own suicidal risk.
Fazel agreed that Assange has “autistic-like traits” but that he would be in the milder end of the autism spectrum.
In defense cross-examination, Fazel conceded that he is not an expert in U.S. prisons, which have a 6-7 times larger inmate population. This means, the defense established, that he’s not aware of Alexandria Detention Center where Assange would be held in pre-trial confinement nor the full effect of Special Administrative Measures (SAMs), to which Assange would be subjected, nor is he aware of ADX Florence in Colorado, where Assange is likely to be sent post-trial if convicted, and where conditions under SAMs have been described by a former warden there as a “clean version of hell” and “unfit for human habitation.” U.S. prison experts will be called to testify about those facilities, likely later this week.
Discussing solitary confinement and lengthy prison sentences, Fazel said that “hopelessness is an important risk factor” for suicide, that Assange’s risk increases if he feels he has “bleak prospects.”
Prosecution questioning attempted to undermine the definition of solitary confinement and to paint a rosier view of Supermax imprisonment, as prosecutor James Lewis read off a long list of amenities allegedly offered at the federal facility in Colorado, such as “13-inch televisions” and “arts and crafts.” The defense noted that this description does not apply to housing unit H, where Assange would be held.
See a thread of live-tweets of today’s hearing here
Psychiatrist: High risk of suicide if Assange is extradited
Dr. Michael Kopelman
Dr. Michael Kopelman, Emeritus Professor of Neuropsychiatry at the Institute of Psychiatry at King’s College London, took the stand today to testify about his visits with Julian Assange in prison and his medical evaluations. Out of respect for Julian’s privacy, we won’t share all details that were discussed in court but will summarize the most relevant portions. Most pertinently, Dr. Kopelman said that Assange, who has been diagnosed with clinical depression and Asperger’s syndrome, would be at a high risk of suicide if he were extradited to the United States.
Dr. Kopelman has observed in Julian “loss of sleep, loss of weight, a sense of pre-occupation and helplessness as a result of threats to his life, the concealment of a razor blade as a means to self-harm and obsessive ruminations on ways of killing himself.”
“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,” he wrote in written submissions to the court.
Section 91 of the United Kingdom’s 2003 Extradition Act prohibits extradition if “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.” Section 91 of the 2003 Extradition Act prohibits extradition if “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.”
Article 3 of the European Convention on Human Rights says that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Having investigated this case in my capacity as the #UN#SRTorture, I am absolutely convinced that, if extradited to the USA, #Assange will be exposed to an unfair trial & conditions of detention amounting to #Torture or other cruel, inhuman or degrading treatment or punishment. pic.twitter.com/fELnEVT8LT
Both section 91 and article 3 were cited in Lauri Love’s case, in which the high court ruled against extraditing Love, a U.K.-based computer science student who also has Asperger’s syndrome, to the United States over alleged computer crimes. That court ruled in Love’s favor on two grounds, the forum bar (meaning the U.S., instead of the U.K., was the wrong venue in which to try him) and the conditions he would face in a U.S. prison. “We come to the conclusion that Mr Love’s extradition would be oppressive by reason of his physical and mental condition,” the court found.
The court specifically cited the lack of adequate mental health care in the U.S. prison system. “Suicide watch is not a form of treatment; there is no evidence that treatment would or could be made available on suicide watch for the very conditions which suicide watch itself exacerbates.”
Lauri Love spoke about his case and how it relates to Julian’s in our online panel, “What would Julian Assange face in the United States?” which also included Assange’s U.S. attorney Barry Pollack and CIA whistleblower Jeffrey Sterling, who discussed his imprisonment after being convicted under the Espionage Act.
Dr. Kopelman testified in Love’s case as well. In that case, he said today, he was given reassurances that U.S. prisons protect against suicide. But since then, he noted, Jeffrey Epstein has killed himself in prison, and Chelsea Manning has attempted suicide in the very facility where Assange would be held in pre-trial detention. “Those reassurances were not so reassuring,” he said.
“Isolation he would experience in North America would be far worse than anything experienced in embassy or Belmarsh”
But before getting to U.S. prison conditions, the defense is establishing Assange’s current mental state and medical evaluations. Dr. Kopelman testified about meeting with Assange on several occasions, finding that he has severe depression and he has been making end-of-life preparations.
Dr. Kopelman reviewed Assange’s personal, medical ,and family history as factors in his determination as well as observations he made in these visits. He also noted that renowned Autism expert Dr. Simon Baron-Cohen has found that suicide is nine times more likely in patients with Asperger’s syndrome.
Cross examining the doctor, prosecutor James Lewis attempted to undermine Dr. Kopelman’s expertise on the subject, suggesting that as a neuropsychiatrist he deals with the interaction between brain disease and mental health and therefore isn’t sufficiently qualified to comment on this case. Insulted, Dr. Kopelman said he is not “just” a neuropsychiatrist, and actually, Lewis himself has requested Dr. Kopelman’s psychiatric services for a different case, “so it’s a bit rich” for Lewis to question his qualifications.
Lewis then suggested that Dr. Kopelman is “more of an advocate than a psychiatrist” to which Dr. Kopelman replied that he would like to respond to that with an “unparliamentary word.”
Lewis also tried repeatedly to insinuate that Assange is “malingering” or exaggerating his symptoms to induce a diagnosis and avoid extradition. Dr. Kopelman said he was well aware of this possibility and knows to look out for signs of this, which he didn’t find.
Lewis then argued that Julian’s comments in court, including his response to whether he agreed to be extradited (“No”) and his comments from the dock amid witness testimony, indicate his ability to follow the proceedings and therefore indicate that he doesn’t suffer from serious depression (earlier he tried to establish with Dr. Kopelman that severe depression means an inability to function in work and social activities).
Dr. Kopelman reiterated that he primarily evaluated Assange from May-December of 2019, as well as a visit this spring, but he doesn’t find these comments to preclude a diagnosis of severe depression. If anything, he said, these comments in the middle of court proceedings appear to Dr. Kopelman as evidence toward the diagnosis of Asperger’s syndrome.
The next three days will be very difficult for us. The court will hear medical evidence of Julian's physical and mental condition and his likelihood of survival if he is extradited to face 175 years in a US prison.
Please treat Julian with dignity and humanity. #MentalHealth
See a thread of live-tweets of today’s hearing here
Christian Grothoff: WikiLeaks did not publish unredacted cables first
Christian Grothoff
The first witness this week was German computer science professor Christian Grothoff, who testified about his research into the timeline of events surrounding the 2011 publication of the unredacted State Department cables. Three of the 18 counts against Assange charge him specifically for publishing the unredacted cables, and Grothoff’s testimony establishes that WikiLeaks was not the first outlet to publish that archive, that others published it first and have not been prosecuted for doing so, and that WikiLeaks took care to encrypt the file but actions outside of Assange’s control led to its release.
Grothoff went through the timeline in his statement and on the stand. In the summer of 2010, WikiLeaks shared the diplomatic cables with The Guardian journalist David Leigh via an encrypted file on a temporary website along with a strong passphrase to decrypt it. Assange had written just part of the passphrase down on paper.
WikiLeaks and its media partners began publishing the redacted cables in November 2010, in the release known as Cablegate. WikiLeaks was then subject to Distributed Denial of Server attacks which took the site down or made it very difficult to access, so it encouraged supporters to create mirrors of the site, replications of site data on different servers, and hundreds of people did so.
In February 2011, Leigh and fellow Guardian reporter Luke Harding published a book on working with WikiLeaks and Assange in which one chapter title was the full passphrase which could be used to decrypt the file containing the set of unredacted cables.
On August 25, 2011, German weekly Der Freitag published an article explaining that the password Leigh and Harding revealed could be paid with an encrypted file to find the documents — the article doesn’t say exactly what the password is or where exactly the file could be found, but it provided enough clues that sufficiently tech-savvy readers could figure it out. Der Speigel then confirmed the story, and on August 31, Nigel Parry published, ‘Guardian Investigative Editor David Leigh publishes top secret Cablegate password revealing names of U.S. collaborators and informants… in his book’, in which he says exactly what the passphrase was.
When WikiLeaks discovered that this information was public, Assange and fellow WikiLeaks staff member Sarah Harrison called the State Department to warn them that the cables were online unredacted — those warnings were ignored.
Cryptome, a US-based leak site well-known in the tech community, published a file containing the full unredacted cables — Cryptome has never been prosecuted for publishing that file. Later that day, WikiLeaks posted an editorial, ‘Guardian journalist negligently disclosed Cablegate passwords.’, and on September 2nd WikiLeaks published the unredacted cables.
As Glenn Greenwald wrote that day,
“Once WikiLeaks realized what had happened, they notified the State Department, but faced a quandary: virtually every government’s intelligence agencies would have had access to these documents as a result of these events, but the rest of the world — including journalists, whistleblowers and activists identified in the documents — did not. At that point, WikiLeaks decided — quite reasonably — that the best and safest course was to release all the cables in full, so that not only the world’s intelligence agencies but everyone had them, so that steps could be taken to protect the sources and so that the information in them was equally available.”
On cross-examination, the prosecution attempted to suggest that WikiLeaks shared the full archive with all 50 media partners that it worked with on Cablegate, but Grothoff said there is no evidence for that, and he suggested the prosecution “didn’t do [their] homework” as far as the chronology of publication. He pointed to David Leigh’s book, in which it’s clear that Assange was “reluctant” to hand over the unredacted archive to The Guardian. Leigh had to repeatedly badger Assange for the full archive and initially Assange suggested giving only half of the dataset. Other media partners were only given subsets of the data, relevant to their experience or geographical region.
Cassandra Fairbanks: High-level plan to revoke Assange’s asylum
Cassandra Fairbanks
This afternoon, the defense read a witness statement from Cassandra Fairbanks, a DC-based journalist who supports both President Trump and Julian Assange. In 2018-19, Fairbanks was in a Direct Message group on Twitter which included “multiple people who either worked for President Trump or were close to him”, such as German Ambassador Richard Grenell, and Arthur Schwartz, “a wealthy GOP donor who does communications for the Ambassador and works as an informal adviser to Donald Trump Jr.”
On October 30, 2018, Fairbanks posted an interview with Assange’s mother in the group chat, “hoping that someone would see it and be moved to help.” Schwartz, “outraged,” called her shortly after and “repeatedly insisted that I stop advocating for WikiLeaks and Assange, telling me that “a pardon isn’t going to fucking happen.”
“He knew very specific details about a future prosecution against Assange that were later made public and that only those very close to the situation then would have been aware of. He told me that it would be the ‘Manning’ case that he would be charged with and that it would not involve the Vault 7 publication or anything to do with the DNC. He also told me that they would be going after Chelsea Manning. I also recollect being told, I believe, that it would not be before Christmas. Both of these predictions came true just months later.”
Grenell brokers deal to evict and arrest Assange
Schwartz also knew in advance of plans to revoke Assange’s political asylum granted by Ecuador:
“He also told me that the US government would be going into the Embassy to get Assange. I responded that entering the embassy of a sovereign nation and kidnapping a political refugee would be an act of war, and he responded ‘not if they let us.’
I did not know at the time that Ambassador Grenell himself had that very month, October 2018, worked out a deal for Assange’s arrest with the Ecuadorian government.”
Fairbanks began to cry on the phone with Schwartz, which led to him “softening his tone and saying that Assange would ‘probably’ only serve life in prison.”
In January 2019, Fairbanks visited Assange in the Embassy and
“informed him of everything I had been told. I know that he was concerned about being overheard or spied on and he had a little radio to cover up the conversation. I had also met with Chelsea Manning in person and told her that I feared that they might come after her again.”
Two months later, in March 2019, she visited Assange again, but she said, “This visit was very different. I was shocked at the way in which both Assange and I were treated.” Fairbanks was “locked in a cold meeting room for an hour while Embassy staff demanded Assange be subjected to a full body scan with a metal detector before allowing him in the room.”
“I considered at the time ‘it seemed our government was getting what they wanted from Ecuador, as a former senior State Department official told Buzzfeed in January “As far as we’re concerned, he’s in jail”’. I noted ‘[i]n an interview with El Pais in July, President Moreno also said his “ideal solution” is that Assange may “enjoy” being ‘extradited’ if the UK promises that the US will not kill him.”
Fairbanks then messaged Schwartz, asking what he knew about the rumors that Assange may be evicted, and Schwartz called her and made clear that “knew I had told Assange what he had told me.” This appears to be corroborating evidence that Assange’s private conversations in the embassy were surveilled and that recordings were sent back to the U.S.
Assange was evicted from the embassy and arrested on April 11, 2019. Four days later, ABC Newsreported, ‘US gave verbal pledge of no death penalty for Assange: Sources’
The process of moving Assange out of the Ecuadorian Embassy started a year ago, on March 7, 2018, when the Ecuadorians made their first request to the U.K.: a letter asking for written assurances that the U.K. would not extradite Assange to a country where he could face the death penalty, according to the Ecuadorian Interior Minister Maria Paula Romo.
Ecuador’s direct outreach to the U.S. came six months later, through the country’s ambassador to Germany, Manuel Mejia Dalmau, according to U.S. and Ecuadorian officials. Dalmau sought a private “emergency meeting” in Berlin with the U.S. Ambassador to Germany, Richard Grenell, viewed as one of President Donald Trump’s closest envoys in Europe, the officials said.
… During one meeting, Dalmau asked whether the U.S. would commit to not putting Assange to death, according to a senior US. official.
Grenell then contacted the U.S Justice Department to see if he could provide assurances that the U.S. government would not seek the death penalty. According to the senior U.S. official, Deputy Attorney General Rod Rosenstein consented. That enabled Grenell to make the pledge. The agreement between the U.S. and Ecuador was a verbal one, according to a source in the Ecuadoran government.
Direct “orders from the President”
Finally, Fairbanks said,
Schwartz informed me that in coordinating for Assange to be removed from the Embassy, Ambassador Grenell had done so on direct “orders from the President”. I believed this connected President Trump to those who have been reported as having secured the deal to arrest Assange. I believed Schwartz’s statement to be correct because his close personal ties to both President Trump and Grenell are well-known. … The other persons who Schwartz said might also be affected included individuals who he described as “lifelong friends”. Arthur Schwartz is very well known and is publicly reported to be a right hand man or “fixer” for Donald Trump Junior and part of a circle extremely close to the White House which includes Richard Grenell, Sheldon Adelson and others. I am aware that Schwartz has frequented the White House all the time (his presence is recorded on many videos there) and is extremely close to the inner circle of people who are very close to the President.
In May 2020, The Grayzone’s Max Blumenthal reported “new details on the critical role Sheldon Adelson’s Las Vegas Sands played in an apparent CIA spying operation targeting Julian Assange.”
Following Assange’s imprisonment, several disgruntled former employees eventually approached Assange’s legal team to inform them about the misconduct and arguably illegal activity they participated in at UC Global. One former business partner said they came forward after realizing that “David Morales decided to sell all the information to the enemy, the US.” A criminal complaint was submitted in a Spanish court and a secret operation that resulted in the arrest of Morales was set into motion by the judge. … Throughout the black operations campaign, US intelligence appears to have worked through Adelson’s Las Vegas Sands, a company that had previously served as an alleged front for a CIA blackmail operation several years earlier. The operations formally began once Adelson’s hand-picked presidential candidate, Donald Trump, entered the White House in January 2017.
https://youtu.be/Lj0C0rqSZVw
Court resumes tomorrow morning, 10:00am London time.
New Zealand investigative journalist Nicky Hager took to stand to testify about using WikiLeaks documents in his work. Hager published Other People’s Wars, New Zealand in Afghanistan, Iraq and the war on terror, and said that WikiLeaks-released military and diplomatic files “greatly increased my understanding of the conduct of the war. It would have been impossible to write the book without these confidential and leaked sources.”
In his written testimony, Hager explained,
“It is in general impossible to research and write about war to a useful standard without access to sources that the authorities concerned regard as sensitive and out of bounds — and all the more so with the subject of war crimes.”
“In the case of war, information which is classified is essential to allow journalism to perform its roles of informing the public, enabling democratic decision making and deterring wrongdoing.”
Further commenting on the importance of WikiLeaks’ releases specifically, Hager compared the publication of the Collateral Murder video, in which U.S. gunmen can be heard saying “Look at those dead bastards”, to the video of the police killing George Floyd and his words “I can’t breathe” for their contribution to “world opinion about the misuse of state power.”
Hager worked with WikiLeaks to report on the State Department cables, and he was called to testify about WikiLeaks’ redaction process. One of his jobs was to “identify any [cables] that should not be released for reasons such as personal safety of the named people.” Hager said he found WikiLeaks staff “to be engaged in a careful and responsible process.”
On Assange specifically, Hager said that he spent a lot of time with Julian, and “The person I got to know was very different from the image portrayed in the US media.”
During cross-examination, the prosecution sought Hager’s opinion on the release of the unredacted embassy cables in 2011. Hager said, “My understanding is that the information came out before Wikileaks made that decision,” referring to the fact that cables were published on Cryptome and had already been mirrored on several other websites beforehand. “WikiLeaks made strenuous efforts to keep it secret, and it was released elsewhere first.”
Pressed further about the releases, Hager said that he was “glad that the redacted cables were out so long, that there was a 9-month period to warn any informants who could’ve been named.” Because WikiLeaks had first published redacted cables beginning in late 2010, the U.S. government was on notice as to whom it should alert. Although the cables were ultimately published without redactions, that lead time, Hager said, is probably why there were no deaths as a result of WikiLeaks’ releases.
Jennifer Robinson: Trump offered pardon for Assange in exchange for sources
Congressman Dana Rohrabacher
The defense then read a statement from Jennifer Robison, a barrister in London who has advised Assange since 2010.
Robinson’s testimony recounted a meeting she observed between U.S. Congressman Dana Rohrabacher and Charles Johnson in the Ecuadorian Embassy. Congressman Rohrabacher made clear that he had come to the embassy on behalf of President Trump and they would “have an audience” with Trump upon their return to Washington D.C.
Rohrabachr explained that he wanted “to resolve the ongoing speculation about Russian involvement” in WikiLeaks’ publication of the Democratic National Committee leaks in 2016.
He said ongoing speculation was “damaging to US-Russian relations, that it was reviving old Cold War politics, and that it would be in the best interests of the US if the matter could be resolved.” Rohrabacher explained that information from Assange about the source of the DNC leaks would be of “interest, value and assistance to President.”
Rohrabacher proposed that Assange identify the source for the 2016 election publications “in return for some form of pardon, assurance or agreement which would both benefit President Trump politically and prevent US indictment and extradition.”
Assange did not provide any source information to Rohrabacher, and instead Assange and Robinson urged the Congressman to raise the First Amendment implications of any U.S. indictment with President Trump.
The defense revealed this pardon offer to demonstrate the politicized nature of Assange’s prosecution. The fact that it could be dropped if Assange provided source information, and the fact that it was brought after Assange declined to provide that information, belies claims of a desire to simply prosecute a crime.
Khaled el-Masri, kidnapped and tortured by the CIA
Khaled el-Masri (click for source)
The defense then summarized a statement from Khaled el-Masri. As John Goetz outlined in his testimony on Wednesday, el-Masri was kidnapped and tortured by the CIA. El-Masri’s statement has been the subject of contention, because the prosecution (operating on instruction from the U.S. government) objected to admitting the statement as evidence.
Amid debate over whether to hear from el-Masri live by video or to read his statement aloud, the prosecution said, “We see no utility whatsoever in having Mr. el-Masri in court.” Julian spoke up from the dock: “I will not censor a torture victim’s statement to this court,” he said. “I will not accept that.”
The prosecution ultimately agreed to allow the “gist” of the summary to be read as long as it was understood that the prosecution does not stipulate that el-Masri was tortured by the U.S. government.
An innocent German citizen, el-Masri was rendered to a CIA black site, where he was sodomized, force-fed through a tube through his nose, and subjected to total sensory deprivation. You can read his harrowing statement here.
The German state prosecutor issued an arrest warrant for the 13 CIA agents responsible. As Goetz explained, WikiLeaks documents revealed that the U.S. had pressured the German prosecutor to issue the warrant in a jurisdiction where the perpetrators didn’t live, threatening “repercussions” otherwise.
A court ruled his detention and rendition were unjustified, but there has been no justice for the U.S., he said. El-Masri cited U.S. State Secretary Mike Pompeo threatening the family members of any International Criminal Court officials who cooperate with an investigation into U.S. crimes.
Carey Shenkman: Espionage Act instills a “chilling effect”
Shenkman and prosecutor Clair Dobbin continued a lengthy exchange about case law on the Espionage Act. Dobbin read through several rulings on Espionage Act cases, arguing that the Act allows for prosecution of journalists, that it has been refined by judicial interpretation, and that challenges to its “overbreadth” have been tried and failed.
But Shenkman explained that these cases have dealt with government insiders, not members of the media, so the language used in those cases doesn’t necessarily apply here.
He said here’s dispute in the scholarship as to whether these judicial interpretations could be called refinement. In fact “if anything,” he said, “some of these terms have been broadened,” such as the fact that “national defense information” doesn’t just mean classified information but instead includes anything the government considers sensitive.
The prosecution attempted to argue that the use of the Espionage Act has historically demonstrated “restraint” on the part of the government, but Shenkman said he doesn’t think any scholar on the issue would agree.
Shenkman explained that simply bringing forward an indictment under the Espionage Act against a journalist, even if the prosecution isn’t successful, combined with the law’s “breadth and overuse,” instills a “significant chilling effect” throughout the media. The effect pervades beyond journalists too, he noted, because the law is written so broadly that it could be used against anyone who even reads or retweets national defense information.
On the common threads running through all attempts to bring prosecution under the against the media, Shenkman said that in all cases, the journalists accused don’t support the administration’s policies, are revealing misconduct, or are revealing information contrary to what the administration is revealing.
Reuters journalist Dean Yates: Assange told us what US wouldn’t
Dean Yates (click for source)
Finally, the defense read portions of a witness statement from Dean Yates, who was the Baghdad bureau chief for Reuters at the time of the incidents depicted in Collateral Murder. In the video, taken in July 2007, U.S. gunmen shoot and kill two Reuters journalists, Namir Noor-Eldeen and Saeed Chmagh, among other civilians.
Yates recounted his efforts to find out what happened that day and the U.S. efforts to stonewall him, including rejecting a Freedom of Information Act request for the video. The military showed him part of the video but not the whole thing. He explained that Assange’s release of the video, along with the Rules of Engagement accompanying it, proved that the U.S. had lied to him.
“When I had first been shown a part of the video in 2007 by the US military it had been burnt into my mind that the reason the helicopter opened fire was because Namir was peering the corner. I came to blame Namir, thinking that the helicopter fired because he had made himself look suspicious and it just erased from my memory the fact that the order to open fire had already been given. the one person who picked this up was Assange. On the day he released the tapes he said the helicopter opened fire because it sought permission and was given permission. He said something like, ‘If that’s based on the rules of engagement then the rules of engagement are wrong.’”
Yates said he found it “impossible to grapple with the moral injury” of unfairly blaming Namir.
“I was devastated at having failed to protect my staff by uncovering the Rules of Engagement in the US military before they were shot — and for not disclosing earlier my understanding of the extent to which the US had lied. I was profoundly affected.”
The U.S. government knows how powerful the video is too, Yates said.
“The US knows how devastating Collateral Murder is, how shameful it is to the military — they are fully aware that experts believe the shooting of the van was a potential war crime. They know that the banter between the pilots echoed the language that kids would use on video games.”
On the importance of the release, to the victims and to the rest of the world, Yates said,
“I know Namir and Saeed would have remained forgotten statistics in a war that killed countless human beings, possibly hundreds of thousands of civilians. Had it not been for Chelsea Manning and Julian Assange the truth of what happened to Namir and Saeed, the truth of what happened on that street in Baghdad on July 12, 2007, would not have been brought to the world. What Assange did was 100% an act of truth-telling, exposing to the world what the war in Iraq in fact was and how the US military behaved and lied. The video was picked up by thousands of news organizations worldwide, sparking global outrage and condemnation of US military tactics in Iraq.”
See a thread of live-tweets of today’s hearing here
WikiLeaks’ Iraq War Logs exposed 15,000 civilian casualties
WikiLeaks’ Iraq War Logs
John Sloboda, co-founder of Iraq Body Count, an independent NGO devoted to continuously counting killings civilians in Iraq, testified today about working with Julian Assange and WikiLeaks on the Iraq War Logs, released in October of 2010.
Sloboda started Iraq Body Count to give “dignity to the memory of those killed”,” because knowing how loved ones die is a “fundamental human need,” and to aid in “processes of truth, justice, and reconciliation.”
The Iraq War Logs, a compendium of 400,000 Significant Activity reports filed by the U.S. Army, constituted “the single largest contribution to public knowledge about civilian casualties in Iraq”, Sloboda testified. The logs revealed an estimated 15,000 previously unknown deaths.
Most of these deaths were the results of small incidents, meaning 1-3 deaths at a time, “the kinds of incidents that attract the least reporting” he said in his statement.
Redaction process
Iraq Body Count + WikiLeaks releases (click for source)
WikiLeaks invited Iraq Body Count to join the media partners and given pre-publication access to the material. Assange imposed a “very stringent redaction process” in order to protect named sources from potential harm. Sloboda explained that because the necessary redactions would have taken a team of hundreds to do this manually, an automated process was developed to scan the files and redact every word that wasn’t in a standard English dictionary, to automatically remove any names. Then the files were scanned to remove occupations, like “doctor” or “driver”, so as to further protect identities.
Redacting the logs took “weeks”, Sloboda said, calling it a “painstaking process.”
The other journalists in the partnership wanted to hurry to publication. “There was considerable pressure on Wikileaks because the partners wanted to publish faster,” Sloboda said, but WikiLeaks continuously rejected this pressure, insisting that redactions must take place. Some media partners had redacted a small number of documents by hand and wanted to publish those first, but “Assange and WikiLeaks wanted the entire database to be released together.”
Many people who used the war logs would agree they were over-redacted, Sloboda said, but the agreed stance was to be overcautious first and then to take a closer look afterward, to possibly unredact something if it was agreed it could be revealed.
On the importance of the releases, Sloboda writes in his witness statement that 10 years on, the Iraq War Logs “remain the only source of information regarding many thousands of violent civilian deaths in Iraq between 2004 and 2009,” and it is Iraq Body Count’s position that “civilian casualty data should always be made public.” While the U.S. government often claims that the disclosure could have endangered Iraqi or U.S. lives, it “has never been able to demonstrate that a single individual has been significantly harmed by the release of these data. This is not least because the War Logs were highly redacted prior to their release by Wikileaks.”
“It could well be argued, therefore, that by making this information public Manning and Assange were carrying out a duty on behalf of the victims and the public at large that the US government was failing to carry out.”
Carey Shenkman: Espionage Act is an “extraordinarily broad” political offense
Carey Shenkman
The defense then called Carey Shenkman, an American human rights attorney and constitutional historian who is writing a book on historical analyses of the Espionage Act, to testify by video link from the United States. Shenkman has worked for the late Michael Ratner, President Emeritus at the Center for Constitutional Rights, which advised Assange and WikiLeaks prior to Ratner’s passing.
Shenkman’s witness statement gives a history of the use of the Espionage Act, created in 1917 under President Woodrow Wilson, in what Shenkman refers to as “one of the most politically repressive [periods] in the nation’s history.” The act was used against a range of dissidents, and Shenkman says he provides this history to show how widely it can be used and to show that the act is “extraordinarily broad” and one of the U.S.’s most divisive laws.
Shenkman explained two key points about the law: first, it is written to criminalize the disclosure of not sure “national security information” but all “national defense” information, which means it encompasses even information that isn’t classified, and second, the act does not include a “public interest” defense, meaning defendants can’t argue that disclosures were made to benefit the public.
In 2015, Shenkman wrote about the use of the act against whistleblowers in an article for the Huffington Post, ‘Whistleblowers Have a Human Right to a Public Interest Defense, And Hacktivists Do, Too.”
“Not a single one of those prosecuted has been allowed to argue that their actions served the public good…Whistleblowers cannot argue that their actions had positive effects, known as a “public interest defense.” The United States treats disclosures to the press as acts of spying — no matter what good they lead to.”
Also in 2015, Shenkman and Ratner wrote, ‘CCR to UN: Whistleblower Protections Must Include Publishers Like WikiLeaks and Julian Assange’
“the ultimate effect of prosecuting and censoring publishers is the unacceptable chilling on the free flow of information, rights to access information, and freedom of expression.”
Because of just how controversial the Espionage Act is, Shenkman testified, there has never been a prosecution like the one against Assange.
“There has never, in the century-long history of the Espionage Act, been an indictment of a U.S. publisher under the law for the publication of secrets. Accordingly, there has never been an extraterritorial indictment of a non-U.S. publisher under the Act.”
Therefore, Shenkman told the court, journalists have generally felt comfortable that their activity was protected. This changed briefly in 2010, when the Obama administration began using the Espionage Act against sources and even named journalist James Rosen as an unindicted co-conspirator in an Espionage Act case, and fellow reporters began to get nervous. But Shenkman says, that anxiety was dialed back when then-Attorney General Eric Holder announced, upon his resignation in 2014, that naming Rosen as a co-conspirator in that case was his greatest regret in office.
But the Trump administration’s escalation from prosecuting the sources to prosecuting the publisher has signaled a major shift that carries a widespread chilling effect. Shenkman writes:
“What is now concluded, by journalists and publishers generally, is that any journalist in any country on earth—in fact any person—who conveys secrets that do not conform to the policy positions of the U.S. administration can be shown now to be liable to being charged under the Espionage Act of 1917.”
“Highly politicized prosecution”
On cross-examination, prosecutor Clair Dobbin attempted to get Shenkman to concede that in 2015, he felt that the U.S. still may bring charges against Julian Assange. This is part of the prosecution’s effort with most witnesses to attempt to undermine the 2013 Washington Postarticle reporting that the Obama Administration would not be bringing Espionage Act charges against Assange. This is a key factor in the extradition proceedings, because the US-UK Extradition Treaty bars extradition for “political offenses”, and a clear decision not to prosecute by one administration followed by a 180º shift to a decision to prosecute by the following administration would appear plainly politicized.
Shenkman testified that he took the 2013 article at face value, that he believed the Obama DOJ had decided not to prosecute. Asked about the investigation into WikiLeaks continuing across administrations, Shenkman said, “oftentimes these things are left to simmer, but ultimately an indictment wasn’t brought.” Furthermore, he argued, if Obama and Holder truly wanted to prosecute, wouldn’t they have been eager to do so? Wouldn’t Obama have wanted to write in his memoirs that he was the one to prosecute WikiLeaks?
Asked again about the ongoing investigation, Shenkman said, “Using the Espionage Act like this is extremely contentious,” something he thought would be an apt assignment for law school students to debate and explore because it’s so contentious.
“I’ve never thought we would see something like [this indictment], he said, adding that most legal scholars agree that this use of the Espionage Act is “truly extraordinary.” Furthermore, he said, the way the charges are framed and the timing of the indictment “really point to a highly politicized prosecution.” He began to comment on the politicized nature of the way the 3 “pure publication” charges are written, but the prosecution stopped him, saying they’d go through the indictment later.
In a long back-and-forth, the prosecution attempted to get Shenkman to comment on agreed legal principles in the U.S. Shenkman repeatedly explained that these are contentious issues dependent on the circumstances.
“Do you agree that a government employee who steals national security or national defense information is not entitled to use the First Amendment as a shield?” Dobbins asked.
“It’s a highly fact-specific inquiry,” Shenkman said, and it “depends on what you mean by ‘steal.” For example, Shenkman noted that the 9th circuit appeals court recently ruled on Edward Snowden’s NSA disclosures, and “they credited Mr Snowden with those disclosures even though he was a government employee accused of stealing these things.”
Shenkman and Dobbin had a similar disagreement over the use of “hacking” — asked, “Are you saying that hacking government databases is protected under the First Amendment?”, Shenkman said he’d have to ask what she means by “hacking”, because the Computer Fraud and Abuse Act doesn’t actually use the term, instead it deals with “exceeding unauthorized access.”
Phrases like “crack a password” and “hack a computer” sound “scary”, Shenkman said, but there are many nuances and interpretations to consider. “So yes I think there are ways the First Amendment could be relevant.”
Failing to get a yes or no answer, Dobbin asked, so shouldn’t these matters be decided in a U.S. court?
Shenkman responded, “No,” saying that his testimony was about the application of the Espionage Act, and whether the way they are written in the indictment against Assange is “political.”
It became clear we would need more than another hour for Shenkman’s cross-examination and closing questions by the defense, so court was adjourned for the day, and Shenkman will return to the stand tomorrow afternoon.
See a thread of live-tweets of today’s hearing here
See today’s video about Redactions and War Crimes here
John Goetz on WikiLeaks’ “very rigorous redaction process”
Journalist John Goetz
American journalist John Goetz, who has worked in Germany for the last 30 years, testified today about his experiences as a media partner on WikiLeaks’ releases in 2010. Working for Der Spiegel, Goetz had already been reporting on Iraq and Afghanistan when he joined the partnership to report the Afghan War Diaries, the Iraq War Logs, and the State Department cables.
Goetz was involved in early discussions and testified that Wikileaks spearheaded a “very rigorous redaction process,” beginning with the Afghanistan files. He said Assange himself was “very concerned with the technical aspect of trying to find the names in this massive collection of documents” so that “we could redact them, so they wouldn’t be published, so they wouldn’t be harmed.” He testified that Assange continually reminded the media partners to use secure communications, encrypted phones and apps, and while he seemed paranoid at the time, this is now standard journalistic practice.
Goetz also testified about WikiLeaks and the media partners’ conversations with the U.S. government ahead of publication. At one point the partners were on a conference call with the State Department in which U.S. officials would provide numbers of documents that they especially didn’t want published. They didn’t give specific names to redact but rather were indicating politically sensitive areas — when they realized that they were just calling attention to stories the journalists would be interested, they stopped.
The media partners also sent a delegation of New York Times reporters, who already had an office in Washington DC, to the White House to discuss the release ahead of time. As the Times’ Eric Schmitt emailed to Goetz immediately after the meeting, the media delegation passed on to the U.S. government that WikiLeaks would not be publishing some 15,000 documents within the Afghan War Diaries, and they asked the White House for any technical assistance they could provide to assist with redactions. That request, Goetz said, was met with “derision.”
As Goetz testified, Der Spiegelinterviewed Assange in 2010 about his harm-minimization process
Assange: The Kabul files contain no information related to current troop movements. The source went through their own harm-minimization process and instructed us to conduct our usual review to make sure there was not a significant chance of innocents being negatively affected. We understand the importance of protecting confidential sources, and we understand why it is important to protect certain US and ISAF sources.
SPIEGEL: So what, specifically, did you do to minimize any possible harm?
Assange: We identified cases where there may be a reasonable chance of harm occurring to the innocent. Those records were identified and edited accordingly.
Iraq War Logs: WikiLeaks redacted more than the U.S. gov’t
Though he personally wasn’t as involved in later releases, Goetz testified that with future releases, WikiLeaks’ harm-minimization process developed over time, and he said that the organization “overshot” with the Iraq War Logs, and “ended up redacting more than the Defense Department did. Some of the files had been declassified and released under FOIA requests, so one could compare redactions and see that WikiLeaks had concealed more names than the U.S. government had.
WikiLeaks docs confirm CIA torture& escaping accountability
Giving an example of the types of stories that WikiLeaks releases assisted with, Goetz explained had been investigating the story of Khalid el-Masri, a German citizen who was kidnapped by the CIA in Macedonia, extraordinarily rendered to a black site in Afghanistan where he was detained and tortured in 2004. This wasn’t known at the time, so Goetz searched the documents for el-Masri’s name, saw that he had been brought to Afghanistan, and found the CIA kidnappers “who’d forced el-Masri onto a military plane, sodomized him and sent him” to Afghanistan.
Goetz tracked down the CIA agents responsible in the United States, interviewed them, and reported the story. Following that broadcast, a Munich state prosecutor issued an arrest warrant for the 13 CIA agents. But, Goetz said, “It turns out the arrest warrant was never actually issued to the United States.” When he saw the State Department cables, he discovered that the U.S. had pressured the German prosecutor to issue the warrant in a jurisdiction where the perpetrators didn’t live, threatening “repercussions” otherwise.
Following Goetz’s testimony, the defense wanted to read a statement from Khalid el-Masri himself into the court record. The prosecution objected, suggesting that el-Masri isn’t in the charges against Assange and therefore is irrelevant and shouldn’t be considered admissible. While still objecting, prosecutor James Lewis said the defense could read the statement “if it wants to waste half an hour of the court’s time.” The judge warned Lewis that the way he was objecting, he was going “down a risky path” that could involve accepting the defense’s evidence “unchallenged.”
The remote press video went down at this time, but journalists inside the court reported that discussion of el-Masri’s statement continued, with the government objecting because it didn’t want to imply that allowing his evidence to be read that the prosecution would stipulate that el-Masri was tortured by the U.S. government. The statement wasn’t read aloud and it appears the matter is yet to be resolved.
See this BoingBoing video from 2010 on ‘WikiLeaks and the el-Masri case’ in which el-Masri relates his experiences: “El-Masri’s futile efforts at receiving justice in the U.S. are well-known, but cables recently leaked by Wikileaks reveal that the U.S. also warned German authorities not to allow a local investigation into his kidnapping.”
Also see ‘El-Masri v. Macedonia‘, ‘Extraordinary Renditions: The Right to the Truth.’
Unredacted Cables Falsely Blamed on WikiLeaks
A central argument in the U.S. government’s case is that WikiLeaks published documents which, the government alleged, it knew would cause harm. Time and again the prosecution alerts witnesses to the fact that Assange is only charged with publishing on the internet the unredacted cables containing the names of sources who could have been harmed. The claim is misleading about the charges and was contradicted by both witnesses today.
While the three “pure publication” counts do indeed deal with the 2011 publication of unredacted cables, the 15 other charges, which charge Assange with “soliciting” “obtaining” and “receiving” the documents, deal with the full datasets of Iraq and Afghan war logs, the State Department cables, and the Guantanamo Bay detainee assessment briefs. The charges work in unison, relying on each other, and so the full set of documents must be discussed together. Furthermore, all of the documents — and any conduct that the judge deems relevant even if not in the charges — would be considered at sentencing, where the court considers factors to be mitigating or aggravating.
But even on the facts of it, today’s witnesses strongly disputed the government’s claims. Asked about the 2011 publication of unredacted cables, John Goetz explained what really happened: in February 2011, Guardian reporters David Leigh and Luke Harding published a book with a password to the unencrypted file set as the title of a chapter. German magazine Die Freitag published this information, which allowed eagle-eyed observers to use that password to unlock the files and publish them online in full. Most notably, they were released on Cryptome, a “rival leak site” as described by the government, but they were also mirrored on several other sites, so they could not be taken down and they were out of WikiLeaks’ hands.
Assange and other WikiLeaks staff called the State Department’s emergency phone line at the time (as you can see in this video clip) warning that sources had been named, but they were ignored.
The prosecution pointed to a Guardianarticle from September 2011, in which the media partners condemn WikiLeaks’ release of the unredacted cables (though they concede in the article that the material was first published by Cryptome). Goetz testified, however, that the media partners did not know the true chain of events at this time, it was only later put together that the password in Leigh and Harding’s book was to blame for the material being released.
Goetz also said that Assange had tried to stop Die Freitag from publishing information that would lead to the release of unredacted files.
Daniel Ellsberg: “I totally disagree with the ‘good Ellsberg / bad Assange’ theory”
Next the defense called Pentagon Papers whistleblower Daniel Ellsberg to testify about Assange’s motivations, Ellsberg’s own experience being prosecuted under the Espionage Act, and his view on the unredacted publication of State Department cables.
Ellsberg explained in his witness statement that he copied and released the Pentagon Papers, comprising 7,000 Top Secret files, to the New York Times in 1971 because they demonstrated that the United States government had “started and continued” the Vietnam War “with the knowledge that it could not be won” and successive presidential administrations lied to Congress and the public about it.
“My own actions in relation to the Pentagon Papers and the consequences of their publication have been acknowledged to have performed such a radical change of understanding. I view the WikiLeaks publications of 2010 and 2011 to be of comparable importance.”
In court, Ellsberg testified about Julian Assange’s political opinions, his opposition to war and believe that justice is brought about by transparency and accountability. He and Assange both felt that both the Afghan and Iraq wars were wrong and that it was “clear even to the layman” that the Iraq war was a “crime.” an “aggressive war” as defined by the United Nations. He compared the war in Afghanistan to the war in Vietnam, the former a “rerun” of the latter, as perpetrators of both knew that they could only result in a seemingly endless “stalemate.”
What had changed, Ellsberg said, was that in Afghanistan (and in Iraq), horrific abuses, illegal killings and war crimes had become normalized, so much so that they appeared in “low-level field reports.” The Iraq and Afghanistan War Logs are marked up to Secret, whereas the Pentagon Papers were all Top Secret. Ellsberg said he “would’ve been astonished to see similar reports in Vietnam” in low-level classification. They are now so routine, he said, that they appear in the leaked logs as just the normal course of war.
The famous ‘Collateral Murder’ video illustrates this further. The title of the video, taken from a U.S. Army Apache helicopter and documenting the gunning down of civilians including journalists, children, and their rescuers, was controversial when it was released in 2010. Assange was criticized for labeling the actions “murder,” but to Ellsberg, the title caught his eye for a different reason:
“There was no question to me that what I was witnessing at the time was murder. In fact, the problematic word in the title was ‘Collateral’, implying that it was unintended. This was murder, and a war crime. So I was very glad that the American public was confronted with this.”
Ellsberg spoke of the decision to leak them:
“I was very impressed that the source of these documents, Chelsea Manning, was willing to risk her liberty and even her life to make this information public. It was the first time in 40 years I saw someone else doing that, and I felt kinship toward her.”
Ellsberg and the Espionage Act
Asked if he was able to explain his own motivations when he was charged under the Espionage Act by the Nixon administration, Ellsberg said,
“No, absolutely not…I had withheld, in the nearly 2 years between the revelations and their release, discussion as to what led me to do that in the hopes that I could testify under oath, with sufficient solemnity and credibility.”
But at his 1973 trial, when his lawyer asked Ellsberg on the stand to explain his motivation, the government objected that the question was irrelevant, and the judge agreed. This established the Espionage Act as a “strict liability offense,” with every prosecution under the law in the years since handled in the same way.
“The Espionage Act does not allow for whistleblowing, to allow you to say you were informing the polity. So I did not have a fair trial, no one since me had a fair trial on these charges, and Julian Assange cannot remotely get a fair trial under those charges if he were tried.”
False Dichotomy
On cross-examination, the prosecution attempted to draw out a distinction between Ellsberg and Assange by citing Floyd Abrams, who along with James Goodale argued for the New York Times’ right to publish the Pentagon Papers, as Abrams has written that he believes WikiLeaks is different from the Ellsberg’s release. But Ellsberg said Abrams “doesn’t understand my motives or Julian’s” since he didn’t actually read through all the Pentagon Papers and didn’t discuss Ellsberg’s motivations with him.
Ellsberg added that this false dichotomy isn’t limited to Abrams. “And I’d say people who criticize Ed Snowden, Chelsea Manning, Julian Assange, they don’t want to criticize me — it is entirely misleading,” he said.
Ellsberg said at the time of his releases, he was harshly criticized, the way Snowden and Manning and Assange are now. Then for a long time he was ignored. And now that these new releases have come out, WikiLeaks’ in 2010 and Snowden’s NSA revelations in 2013, all of a sudden commentators were contrasting them with him, referring to Ellsberg positively “to draw some contrast between us.”
“I totally disagree with the ‘good Ellsberg / bad Assange’ theory,” he said. “Except for the computer aspects which didn’t exist back then, I see no difference between the charges against me and the charges against Assange.”
In addition to the personalities involved, the prosecution also attempted to draw a contrast between Assange’s and Ellsberg’s releases, in particular by highlighting the harm the government alleges was caused by WikiLeaks disclosures.
Prosecutor James Lewis cited the fact that Ellsberg withheld 4 volumes of documents from the media, though he gave the full set of files to the Senate, as well as the fact that Abrams quoted Ellsberg as having said, “I don’t want to get in the way of diplomacy,” whereas, Abrams says, Assange clearly does. The prosecution painted this as Ellsberg wanting to protect his country from harm. But Ellsberg clarified that at the time of his release, the U.S. and Vietnam had been engaged in peace negotiations. They were not progressing very well, but the talks were taking place, and Ellsberg didn’t want the release to be used as a pretext for withdrawing from peace talks.
Ellsberg recalls his own full quote: “I want to get in the way of the war, I don’t want to get in the way of negotiations.”
This is also the reason Ellsberg didn’t redact a single word of his releases, even allowing the publication of the name of a clandestine CIA agent (who he knew was already known in Vietnam). He didn’t want the public to think that the files had been edited or interfered with. He wanted to show there was no adequate justification for the killings in Vietnam, and he didn’t want to allow any implication that something he redacted covered up such a justification.
WikiLeaks did not cause harm
Lewis still attempted to get Ellsberg to concede that WikiLeaks’ documents were more harmful.
“Are you saying no one was placed in grave danger?”, he asked.
“It appears not, as there was no harm, as shown by the Defense Department,” Ellsberg said, referring to the fact that in Chelsea Manning’s court-martial, the government was forced to admit that it could not point to a single death that resulted from WikiLeaks’ releases.
Lewis then spent several minutes reading aloud from an affidavit from assistant U.S. attorney Gordon Kromberg on the government’s allegations of harm caused by WikiLeaks releases. These included many allegations and claims that were already attempted in Manning’s trial, such as the fact that WikiLeaks files were found in Osama Bin Laden’s compound, or the Taliban saying they would read through the datasets for informants to punish. These arguments were put forward in the government’s attempt to prosecute Manning for “aiding the enemy” — she was acquitted on that charge.
At one point, Ellsberg interrupted the prosecutor to ask if he would ever get the chance to respond to them. At the end of Lewis’ recitation, Ellsberg said, “I find the government recounting of these allegations to be cynical. Am I right in that none of these people actually suffered physical harm?”
Lewis responded, “The rules are that you do not get to ask the questions.”
Ellsberg reminded the court that the U.S. government was specifically asked to help redact the documents and declined to do so. Furthermore, he said, if there really was massive harm caused by the releases, he would have expected the government to show something far more concrete, or the Taliban to have pointed to actual informants they punished rather than merely talking about it.
Lewis spoke about some named informants having to flee their countries or their posts.
“I understand the anxiety that these people named might be harmed. And that anxiety is caused by the refusal to help WikiLeaks redact. But aside from that, people having to leave the country, must be put in the context of Mr Assange trying to end a war that has caused 37 million refugees and over a million deaths.”
See a thread of live-tweets of today’s hearing here
See yesterday’s videos about the effects of Julian Assange’s imprisonment here and one about freedom of the presshere
Eric Lewis: Under Trump, Justice Dept. is Prosecutorial Hand of the President
Attorney Eric Lewis
Continuing testimony that began yesterday, U.S. lawyer Eric Lewis explained that under President Trump, the Department of Justice is not an independent agency but rather one that takes its direction from the top down. Lewis said that he isn’t questioning the integrity of lower-level prosecutors, but they are taking direction from their Attorney General.
Lewis cited comments from Jeff Sessions, who was US Attorney General at the time Assange’s indictment was brought, in which he called Assange’s arrest a “priority.” The top-down approach continued under William Barr, Lewis said, citing more than a thousand former federal prosecutors who co-signed a statement condemning President Trump’s “obstruction of justice.”
“Jeff Sessions pressured the Eastern District of Virginia to bring the case. I’m not saying individual prosecutors are acting in bad faith, I’m saying the department is highly politicized and many Americans would agree with that sentiment.”
The comments came amid cross-examination, as U.S. prosecutors are attempting to undermine the dense claim that the prosecution of Assange is politically motivated. Lewis pointed again to the fact that the Obama administration made a clear decision not to prosecute Assange in 2013. The facts of the case are from 2010 and 2011 but the U.S. didn’t indict until 2018; the only difference between then and now is who is in the White House.
“This case was dormant when the Trump administration began,” Lewis said. “The evidence hasn’t changed. Witnesses haven’t changed. The First Amendment hasn’t changed.”
175 years in prison
The prosecution also attempted to cast doubt on the claim that Assange would face up to 175 years in prison if he is extradited to the United States. But Lewis said there is significant reason to believe that a judge would sentence him extremely aggressively. Assange would be tried in the Eastern District of Virginia under District Judge Claude M Hilton, who Lewis said is known as a “tough sentencer” and who threw Chelsea Manning in prison for contempt of court when she refused to testify in a WikiLeaks grand jury. Furthermore, U.S. officials have described WikiLeaks’ releases as the biggest leak publications in history and has attempted to argue that U.S. adversaries benefited from the releases. Upon Chelsea Manning’s conviction of 10 counts under the Espionage Act (whereas Assange faces 17), Lewis noted, the government asked for a 60-year sentence, and she was sentenced to 35.
The prosecution attempted to invoke the Espionage Act cases of whistleblowers Terry Albury, Reality Winner, and Jeffrey Sterling as evidence that these cases often result in shorter sentences. But Sterling himself tweeted in response,
–
In February, Sterling wrote, “Reject Using My Unjust Conviction Against Julian Assange.”
Lewis noted that the U.S. Dept of Justice has made several adjustments to the second superseding indictment that it brought in June 2020. Despite adding no new charges, the indictment adds new language that, Lewis explained, increases the likelihood of a higher sentence. These added factors include other co-conspirators the government alleged were under Assange’s direction, reference to a ‘Teenager’ among those (this refers to Siggi Thordarson, Icelandic informant), “special skills” (here could refer to Assange’s alleged computer capabilities), and the fact that the State Department cables allegedly included names of U.S. government employees (at embassies around the world). These all lead Lewis to believe the newest superseding indictment substantially increases a potential sentence for Assange.
Abusive conditions await Assange
Finally, Lewis testified to the conditions Assange would be likely to face in a U.S. prison, both pre- and post-trial. Pre-trial, Assange would be held at the Alexandria Detention Center, and Lewis believes he would be held under both SAMs, which gags a defendant and permits monitoring of attorney-client communications, and the Classified Information Procedures Act (CIPA), which curtails the defendant’s ability to review classified documents in his/her case.
It’s also highly likely Assange would be held in administrative segregation (‘ad-seg), due to his notoriety and mental health issues, and the combination of ad-seg and SAMs would be tantamount to solitary confinement and extremely dangerous to Assange’s psychological health. Lewis testified that two-thirds of all incidents of suicide and self-harm among inmates take place in segregated housing.
Tom Durkin: Assange would not get a fair trial in the United States
Thomas A Durkin (JTF Guantanamo file photo by Petty Officer 2nd Class Nat Moger)
Next, the defense called Thomas Durkin, a criminal defense attorney from Chicago, to discuss how a trial against Assange would play out in the U.S. if he were extradited.
“I don’t believe he would be able to get what I would consider to be a fair trial in the U.S.”, Durkin said, because the case is the result of a highly politicized prosecution, CIPA restrictions would severely hamper the defense, and there would be huge pressure to accept a plea deal simply to avoid an exorbitant prison sentence.
Durkin corroborated what several witnesses have said thus far, that the Obama administration’s decision not to prosecute contrasted with the Trump administration’s decision to prosecute several years later, without new evidence, is clear evidence that the case is political.
The CIPA restrictions, he said, would mean Assange would not be able to view classified documents in the case, contrary to what U.S. assistant attorney Gordon Kromberg argued in submissions for the prosecution.
As for the pressure for a plea deal, Durkin testified that there is a built-in incentive to take a plea, in that a “timely guilty plea” automatically takes the sentence down a level within sentencing guidelines, which Durkin referred to as “draconian.” This is commonly referred to as a “trial tax,” meaning defendants are punished for taking their own cases to trial rather than pleading ahead of time.
Durkin said that the prosecution appears to argue that Assange is more liable than Chelsea Manning, indicating the government would seek a longer sentence than the 60 years it sought for Manning.
Furthermore, Durkin testified that any plea deal would require “full cooperation,” meaning the government would very likely require Assange to reveal WikiLeaks’ sources in order to obtain a plea agreement.
Tomorrow, former Der Spiegel journalist John Goetz and Pentagon Papers whistleblower Daniel Ellsberg are scheduled to testify.
See a thread of live-tweets of today’s hearing here
Eric Lewis: Julian Assange shouldn’t be extradited, would face solitary confinement in the United States
Attorney Eric Lewis (click for source)
Paused last week due to a COVID19 scare, Julian Assange’s extradition hearing resumed today with witness testimony from Eric Lewis, chairman of the board of Reprieve and a lawyer who “represents Guantanamo and Afghan detainees in litigation, seeking redress and accountability for torture and religious abuse while in US custody.”
Lewis confirmed that before being asked to provide expert testimony on this case, he opined in the press that he believes Assange shouldn’t be extradited or prosecuted, and while he handled the facts objectively in providing his witness statement, those are still his views today. In May 2019, Lewis wrote, “As an American lawyer, I don’t want to see Julian Assange extradited to my country.”
While Lewis’ testimony largely deals with his experience defending clients in the US federal justice system and the conditions they face, he first spoke about the significance of the Trump administration deciding to prosecute Assange in contrast to the Obama administration’s decision not to. Echoing previous witnesses, Lewis singled out comments from then-CIA director Mike Pompeo and then-US Attorney General Jeff Sessions in April 2017 evincing particular zeal in prosecuting Assange. Pompeo castigated WikiLeaks and Assange and declared he would be allowed no First Amendment rights, while Sessions announced that Assange’s arrest was a “priority” of his. Lewis noted that this meant Sessions was specifically directing federal prosecutors to take another look at a case in which the Obama Administration had explicitly decided not to bring charges.
The fact that WikiLeaks documents would be “essential” in war crimes prosecutions in the International Criminal Court (ICC), according to Lewis, may also play a factor here, as President Trump, former Sec. of Defense John Bolton, and Sec. of State Mike Pompeo have all criticized the ICC. Furthermore, President Trump has issued an ‘Executive Order on Blocking Property Of Certain Persons Associated With The International Criminal Court.’
Lewis also remarked on the superseding indictment against Assange, adding 17 counts to the previous single charge. Lewis said these charges under the Espionage Act could easily have been all charged together, but separating them out in this way indicates a desire to maximize Assange’s potential jail time, as each new count carries up to 10 years in prison.
Lewis then spoke about the conditions Assange would be likely to endure, including Special Administrative Measures (SAMs) and solitary confinement.
The Center for Constitutional Rights has documented the effects of SAMs in a 2017 report, “The Darkest Corner: Special Administrative Measures and Extreme Isolation in the Federal Bureau of Prisons”:
“SAMs are the darkest corner of the U.S. federal prison system, combining the brutality and isolation of maximum security units with additional restrictions that deny individuals almost any connection to the human world. They prohibit prisoners who live under them from contact or communication with all but a handful of approved individuals, and impose a second gag on even those few individuals. The net effect is to shield this form of torture in our prisons from any real public scrutiny.”
The CCR has also written ‘Solitary Confinement: Torture in U.S. Prisons’ — the report provides background context for Lewis’ testimony on solitary, which the Bureau of Prisons conceals by referring to it as Administrative Segregation.
Lewis and the prosecution engaged in a long back-and-forth about how SAMs and solitary are applied, what conditions are required, whether they are ‘arbitrary’ and whether they violate the European Convention on Human Rights. Lewis disagrees with the prosecution particularly on whether the US Bureau of Prisons fairly applies SAMs and solitary, finding it extremely likely they’d be applied here due to the likely invocation of “national security interests.” He explained the “unique difficulties” presented under both SAMs and solitary in attorney-client defense preparation, particularly in a case of this magnitude.
Technical issues with Lewis’ videolink before the lunch break and continued afterward. The court decided to adjourn for the day to attempt to resolve them, so court will resume with Lewis’ testimony tomorrow at 10am London time.
Julian Assange’s extradition hearing was abruptly paused today when the court was notified that a member of the prosecution had come down with COVID19-like symptoms. As Kevin Gosztola notes, the scare came amid a new spike in the United Kingdom.
Because members of the defense and Assange himself are at heightened risk, the defense asked the judge to pause the hearings as we await the prosecutor’s test results. Those results ultimately came back negative, so we are scheduled to resume proceedings on Monday , September 14.
In the meantime, catch up with a video recap of the first week of hearings here:
Professor Paul Rogers on Trump’s politically motivated prosecution
Paul Rogers, Emeritus Professor of Peace Studies at Bradford University, took the stand by video link to testify about Julian Assange’s political views and how they factor into the Trump administration’s prosecution of Assange for publishing.
Rogers reviewed Assange’s speeches, including an anti-war speech in 2011 in London and a speech to the UN following the release of Iraq and Afghan war logs, as well as Mairead Maguire’s nomination of Assange for the Nobel Peace Prize in 2019. Rogers concluded that Assange’s views don’t fall into traditional liberal or conservative belief systems but are rather more libertarian, anti-war, and based on values of transparency and accountability.
On the stand, Rogers talked about how WikiLeaks put these values into practice with the war logs publications, and he contextualized the releases with changing opinions in America regarding the wars in Iraq and Afghanistan:
“Possibly the most important part of the whole thing,” he said, was that WikiLeaks’ releases showed 15,000 previously uncounted civilian casualties, “bringing to the American public a very disturbing aspect of the whole war.”
The political objective of seeking to achieve greater transparency in the workings of governments is clearly both the motivation and the modus operandi for the work of Mr Assange and the organisation WikiLeaks. Its manifestation, as is set out in the study by Professor Benkler, has constituted a wholesale alteration of accessing and making available for public information, the secrets that governments wish to remain unknown to their general populations. The subject matter of the charges Mr Assange currently faces involve strong examples of the clash of these positions both in their content and scope, and in the reaction of government.
In his oral testimony, Rogers explained that these views and motivations put him in contrast with successive U.S. administrations but particularly in contrast with the Trump administration.
It is clear that Assange is being opposed because of the success of WikiLeaks in bringing information to the public, he said. This is dangerous to the Trump administration: “the root of it is that Assange and what he stands for represents a threat to normal political endeavor.” In addition to opposing Assange’s words and views, the fact that Obama didn’t prosecute should to some extent be considered in why Trump is prosecuting.
Prosecutor James Lewis QC sought to undermine Assange’s political views by bringing up his views on corporations and NGOs, but Rogers explained that “political opinion” isn’t just about government leaders, that the definition of political opinion has changed significantly in the last 50 years, and that Assange has a view on “transnational elites.”
Asked if simply being a journalist necessitated political opinions, Rogers explained that it’s a complex question, that deciding what to publish and what not to constitutes a political opinion, but Lewis complained that his answers were too long, not yes or no.
Lewis further sought to portray Rogers as biased toward Assange and the defense. He asked why Rogers didn’t include in his statement, in which he referenced views of other experts like Noam Chomsky and Carey Shenkman, the views of assistant U.S. attorney Gordon Kromberg, which defended the prosecution of Assange as a criminal matter, not a political one.
Rogers responded that he takes it as read that federal prosecutors at the lower level act in good faith, that they do as they’re instructed in accordance with the law, but that the wider political context — namely that the Obama administration didn’t prosecute and the Trump admin did, and the Trump administration represents a marked shift in the U.S. political situation — far outweighs the statements of a U.S. attorney.
The prosecution then suggested that the Obama administration may not have prosecuted Assange because he was in the Ecuadorian Embassy at the time:
Lewis: Was it possible to arrest Mr Assange in 2013?
Rogers: Is it necessary to be able to arrest someone to bring a prosecution?
Lewis: What would be the point if he’s hiding in the embassy?
Rogers: Well, to put pressure on him. It would have made very good sense to bring it at that time, to show a standing attempt to bring Mr Assange to justice.
Lewis reviewed the same items as he did with Feldstein yesterday, including WikiLeaks’ lawyer and editor suggesting they still believed charges were possible, but again and again Rogers brought the discussion back to the wider context, and the fact that the Trump administration’s views more broadly have to be considered. Statements by then-CIA director Mike Pompeo, then-Attorney General Jeff Sessions and others have to be part of the determination. Rogers also referenced Obama’s commutation of Chelsea Manning’s sentence. The Trump administration wasn’t happy about that, but a commutation can’t be reversed by a subsequent administration, so this could be Trump’s way of responding to that.
Rogers hammered home that by calling this a “politically motivated prosecution,” he isn’t saying that lower-level federal prosecutors are acting in bad faith. Rather, he said, the influence comes from the top down.
Court is in recess for lunch. Trevor Timm of the Freedom of the Press Foundation will testify after the break.
Trevor Timm: These charges would ‘radically rewrite’ the First Amendment
Founder of the Freedom of the Press Foundation, which advocates for reporters’ rights and tracks violations to press freedom across the United States, Trevor Timm took the stand by videolink this afternoon to talk about the dangers the indictment against Assange poses to journalists and their sources.
Timm objects to the indictment on the grounds that it threatens to criminalize source protection and the passive receipt of government documents as well as pure publication. He concluded that “It would be a radical rewrite of the First Amendment if the government were to go forward with these charges.”
“The decision to indict Julian Assange on allegations of a “conspiracy” between a publisher and his source or potential sources, and for the publication of truthful information, encroaches on fundamental press freedoms.”
Freedom of the Press Foundation has helped many news organizations adopt SecureDrop, an anonymous and secure submission system for sources to safely send documents to journalists undetected. While a largely unused practice when WikiLeaks pioneered it before 2010, major news outlets around the world make use of SecureDrop, and some of them explicitly ask for leaks of government documents.
The way this indictment is written, particularly the charge alleging Assange engaged in a conspiracy with source Chelsea Manning to crack a military computer password in order to remain anonymous, would make this extremely common news gathering illegal. “I don’t think it’s an exaggeration to say this indictment would criminalize national security journalism.”
“Materials journalists often write about and print do not magically land on their desks,” he said. They talk to sources, ask for clarification, ask for more information. “This is standard practice for journalists.”
News outlets and press freedom observers agree. Timm said,
“This is almost a consensus opinion among press freedom groups and media lawyers who have looked at this indictment. This is why newspapers, even those who have criticized Mr Assange, have condemned this indictment.”
Espionage Act: over-broad and over-used
Beyond the effort to criminalize source-protection and news gathering, Timm is extremely concerned about the other charges in the Assange indictment under the Espionage Act of 1917. Some charges criminalize publishing and for soliciting information, and some of the charges are even more broad. “Just the mere thought of obtaining these documents,” Timm said, “the US government is saying is potentially criminal.”
Timm discussed previous efforts to go after journalists under the Espionage Act, efforts which have failed under legal scrutiny. “In each and every case,” Timm said, “the government concluded or was forced to conclude” that an Espionage Act prosecution would violate First Amendment protections, including the Obama administration’s’s 2013 determination not to prosecute WikiLeaks.
Each Espionage Act charge carries 10 years in prison, allows no public interest defense, and only requires the government prove harm could “possibly” have been caused by leaking or publishing.
James Lewis QC, cross-examining Timm for the prosecution, highlighted Timm’s claim in his witness statement that Trump is waging a “war on journalism.” He sought to undercut the claim by pointing out that the U.S. Department of Justice has explicitly said that they do not consider Assange to be a journalist and that they aren’t going after journalists.
Timm responded, “In the US, the First Amendment protects everyone. Whether you consider Assange a journalist doesn’t matter, he was engaging in journalistic activity.”
Lewis tried again, emphasizing that the DOJ specifically went “out of its way” to say they don’t target journalists.
Timm said,
“My opinions are not based on a Justice Department press release but on what is actually contained in the indictment. There are several charges that deal with the mere fact that WikiLeaks had these in their possession. You say there are three charges dealing with publication just of documents with unredacted names, but the rest of the charges deal with all of these document sets, and this criminalizes journalism.
The aspect of criminalizing publication worries me greatly, but there are many other charges that are as worrying or more so, that could criminalize journalistic practice whether you consider Mr Assange a journalist or not.”
Lewis tried to get Timm to comment on the 2011 unredacted publication of the State Department cables, but Timm made clear that whether WikiLeaks has “perfect editorial judgment” shouldn’t matter as to whether the action is illegal. Furthermore, he said, “I certainly don’t think the US Government should be the one to determine whether this was good editorial judgment.”
Trump: Modern-day Nixon
“Trump has the most confrontational approach to the media since Nixon,” Timm said. He referenced Trump tweeting 2,200 times about the press, including calling them the “enemy of the people.” Timm said, “This case is the perfect opportunity for him to create a precedent to punish the rest of the media.
“To me it’s very telling that Trump’s is the first one to try to bring a case like this since the Nixon administration.”
Assange’s Extradition Hearing Resumes: 8 September 2020
See our report from Day 1of these proceedings here. Yesterday, the judge rejected the defense’s request to proceed without the new allegations in the U.S.’s extremely late superseding indictment, then rejected the defense’s request for more time to prepare to deal with these new allegations. Professor Mark Feldstein began his testimony on investigative journalism. Likely to testify today are journalists Patrick Cockburn and Nicolas Hager, and Pentagon Papers whistleblower Daniel Ellsberg. See live-tweeted coverage of today’s hearing in one thread.
Clive Stafford-Smith explains using WikiLeaks docs in legal cases
Clive Stafford Smith, a U.S.-U.K. dual national and the founder of Reprieve, which defends prisoners detained by the U.S. at Guantánamo Bay and others in secretive detention localities around the world, testified about the importance of WikiLeaks material in their litigation. He first discussed the utility of WikiLeaks disclosures in litigation in Pakistan relating to drone strikes and the “seachange” in attitudes towards US drone strikes in Pakistan.
Regarding rendition, assassinations, torture exposed in WikiLeaks documents, Stafford-Smith said, “Speaking as a U.S. citizen, it is incredibly important that it stopped … I feel that my country’s reputation was undermined and criminal offenses were taking place.”
“The litigation in Pakistan would have been very, very difficult and different” if it weren’t for WikiLeaks disclosures.
“The most disturbing thing is that the assassination program with respect to terrorists leaked over to narcotics….they were targeting people for death for their involvement in drug trade because it was seen as funding terrorism. I could go on…”
Assassination programs “are not only unlawful but morally and ethically reprehensible,” he said, and journalists being targeted in war zones by the US is “deeply troubling, a monumental criminal offense.”
The defense questioning then turned to the importance of WikiLeaks releases on Guantanamo.
“It is difficult and hostile sometimes – this is one of the cases I have received death threats for representing these people…but your problem is always two-fold, the prisoners in Guantanamo don’t know what they are charged with….second, unfortunately people never get to meet prisoners in Guantanamo and judge their credibility, so proving what happened involved more than just saying it but travelling round the world and gathering proof”
Stafford-Smith explained that it’s complicated as to whether the GTMO releases are positive or negative in his view:
“Those leaks are the very worst that the US authorities confect about the prisoners I have represented. But on the other hand, they are really important because the world didn’t know the allegations that were being made against my client.”
The best example I am able to give you,I was frustrated when I first read those WikiLeaks documents because I thought they would leak what I get to see….what was useful was the 13 pages that the US government alleged against my client, which up until that point I couldn’t discuss it with anyone, and finally I was able to declassify their assertions and prove that each of their allegations was total nonsense. No one has been ordered for release in America but it was certainly helpful to be able to disprove it.”
“I found it immensely frustrating that the world didn’t know about the unreliability of the evidence against my clients…what others have done by taking the WikiLeaks documents, and I credit here Andy Worthington, is to analyze the number of times certain informants were the named basis for detaining prisoners.”
“While it is important representing the client, and it doesn’t show the world what is actually going on there. My experience with Guantanamo is that if we can open it up to public inspection to see what is really happening there, then they will close it down because its just not what it is advertised as.”
“I say this more in sadness than in anger. Before 2001, I would never have believed that my government would do what it did. We are talking about criminal offenses of torture, kidnapping, rendition, holding people without the rule of law and, sad to say, murder.”
On enhanced interrogation techniques:
“I have had a project of comparing the methodologies that my government uses on my clients to what they used in Spanish Inquisition…hanging people by the wrist while their shoulders slowly dislocate….the first thing I do is to apologize.”
“As you go through the documentation Wikileaks leaked, there are all sorts of things identified, including where people are taken and renditioned…and that was the case in Binyam’s case.”
Clive Stafford-Smith says WikiLeaks and those associated could be subjected to U.S. sanctions under the new ICC sanctions regime because of the role Wikileaks has played in the accountability efforts of U.S. officials involved in war crimes.
“To threaten and impose sanctions is unlawful, and what you are doing here today could justify sanction under the terms of the Executive Order.”
Anyone can be sanctioned who is seeking to assist in an investigation which could lead to ICC investigation, which is what Wikileaks does, so that is covered by the US sanction regime.”
Prosecution cross-examination misleads on the charges
U.S. prosecutor James Lewis repeatedly tried to get Stafford-Smith to concede that none of the WikiLeaks cables mentioned in his witness statement are the subject of charges. Lewis is trying to establish that the indictment of Assange only deals with cables that name specific names of informants. But the defense points out that the prosecution is incorrectly stating that there is no reference to publishing – Assange is in fact being charged for “communicating” and “obtaining” classified information, and these charges capture all the documents, not just specific cables referenced in the pure publication counts.
Furthermore, Stafford-Smith repeatedly explained to the prosecutor that Lewis doesn’t understand how the U.S. prosecutes these cases — just because they aren’t in the indictment they will be used against him. Lewis kept saying that he’s only charged with naming names so the other cables released are irrelevant.
Fed up with this back and forth, Assange himself spoke from the dock to say, “This is nonsense,” the US pretense that he’s not being charged with publishing classified information, just naming names, is “nonsense.”
“Apparently my role is to sit here and legitimate what is illegitimate by proxy,” Assange said.
The judge interrupted Assange to reprimand him for speaking out of turn.
“I understand of course you will hear things most likely many things that you do not like and you would like to intervene but it is not your role.
“Your remaining in court is something the court would wish for. But the court could proceed without you.”
The prosecution closed its cross-examination by citing David Leigh’s book with reference to Assange’s comments on informants, asks if Stafford-Smith agrees with Leigh’s or Assange’s view of informants. Stafford-Smith says he wouldn’t judge anyone based on a book.
Feldstein gives historical context for WikiLeaks’ journalism
Mark Feldstein/ University of Maryland Merrill College of Journalism
Journalism professor Mark Feldstein took the stand to continue his testimony which began yesterday, picking up where he left off on the long history of journalists using classified information in their reporting.
Feldstein confirmed that soliciting information is “standard journalistic behavior.” When teaching journalism, Feldstein talks about asking sources for evidence, actively seeking information, working with them to find documents that are newsworthy, and directing them as to what to find out. “It’s all routine,” he said.
Also routine are efforts to conceal sources’ identities. “Trying to protect your source is a journalistic obligation” Feldstein said, adding, “We use all kinds of techniques to protect them, including payphones, anonymity, encryption, removing fingerprints from documents, reporters do this all the time.”
Later, the prosecution would attempt to draw substantial differences between the New York Times and WikiLeaks, suggesting journalists don’t steal or unlawfully obtain information. While agreeing that journalists are not above the law, Feldstein says that it’s a “slippery slope” as to what constitutes “soliciting” information.
“We journalists are not passive stenographers,” he said. “To suggest receiving anonymously in the mail is the only way is wrong.”
Asked if he himself has published this type of information, he said, “Yeah, I didn’t publish a lot of classified documents but my entire career virtually was soliciting and publishing secret information.”
On the question of allegations that publishing names necessarily causes harm, Feldstein said that it’s easy for the government to claim possible harm because it’s impossible to prove. “Scant evidence that national security is harmed” by government disclosures, he said, and “national security is often used as a shield to hide” embarrassing or bad actions.
Feldstein used the Pentagon Papers as an example, where the government prosecutors at the time went to court alleging that these documents exposed war plans, identified CIA officials, and could even prolong the war. Prosecutors told the court that it would cause “immediate and irreparable harm,” and only years later did one such prosecutor admit he saw no harm from the releases. But why lie at the time? We now know that President Nixon himself instructed his attorney general to smear the New York Times as “disloyal,” in any way he could.
The Trump administration’s “politically motivated prosecution”
The prosecution made repeated efforts to characterize the investigation into WikiLeaks from 2010 to 2020 as one ongoing case, which just happened to finally result in charges with President Trump in power. But Feldstein testified to his view that the Obama administration explicitly decided not to prosecute Assange, citing this 2013 article on the Obama administration deciding not to prosecute, whereas “everything changed” under the Trump administration.
The 2013 piece begins, “The [Obama administration’s] Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists.”
In 2017, by contrast, the FBI wanted a “head on a pike”, President Trump wanted journalists in jail, then-CIA director Mike Pompeo called WikiLeaks a “non-state hostile intelligence agency”, and then-Attorney General Jeff Sessions made Assange’s arrest a “priority.”
Even in this administration, the decision was controversial. This 2019 Post article explicitly names James Trump and Daniel Grooms as federal prosecutors who disagreed with prosecuting Assange under the Espionage Act, because it was “so susceptible to First Amendment and other complicated legal and factual challenges.”
The prosecution attempted to show that WikiLeaks, Assange and his lawyers believed charges were still coming, but Feldstein said that while of course lawyers would protect their client, and while WikiLeaks would likely always fear charges, the “proof is in the pudding” that the Obama admin did not bring charges and Trump did, with no new evidence coming forward in between.
In answering closing questions, Feldstein was very clear as to why he believed the prosecution of Assange was politically motivated, citing several reasons: the unprecedented scope of these charges, the fact that a prosecution was rejected by the Obama administration, the framing of the superseding indictment, and President Trump’s “known vitriol toward the press.” Finally, he said, the only attempts to prosecute journalists in the past were “obviously highly political.”
The prosecution suggested Feldstein was speculating and returned to the idea that names published in the documents would cause harm and an objective grand jury could see that. Feldstein responded that if that was the real intention, the U.S. could have indicted Assange under the much narrower Intelligence Identities Protection Act of 1982, which criminalizes the exposure of certain intelligence figures.
Expanding on the dangers of this broad scope in the indictment, Feldstein said, “recruiting and conspiracy are scary terms, used for terrorists.” By contrast, journalists direct sources, say what they need, send back for more information. “So if that becomes criminalized, if that becomes conspiring, then most of what investigative journalists do would be criminal.”
Assange has been re-arrested, the previous extradition warrant has been withdrawn and the new warrant has been served.
NGOs access to Assange hearing revoked
Judge Vanessa Baraitser then announced that some 40 individuals were granted remove (video) access to the proceedings by mistake, and their access has been revoked. Courage has learned that those whose access was rescinded include representatives from Amnesty International and PEN Norway.
“I know that others are attending this hearing remotely and in an adjacent courtroom. I am allowing this to take place for social distancing and technology allows us to watch this remotely. Those who attend remotely are still bound to the usual rules relevant to court hearings. I remind you that it is a criminal offense to record or broadcast any part of this hearing, including screenshots on any device. As you know I am aware that a photograph has been taken of Mr Assange inside court and shared on social media in breach of these rules.
I have received a list of 40 people who wish to attend this remotely by cloud. This is something I can consider but only after I have received an application. I have granted a number of remote access to lawyers and a small number of people including lawyers who have acted for Mr Assange in closely related proceedings. In error, the court sent out to others who had sought access. During this pandemic, there have been changes about how people can access proceedings. I remain concerned about my ability to maintain the integrity of the court if they are able to attend remotely. Normally, I can see what is happening in the court room to ensure the integrity of courtroom is maintained. Once livestreaming takes place, the court cannot manage this breach even less when the person is outside the jurisdiction. I want to make it clear that the public interest and allowing remote access is unlikely to meet the interests of justice tests. There are many jurisdictions allowing travel to the UK during COVID, so lessening restrictions on travel. For those who consider they still not travel to the UK to attend the hearing, then they need to apply again and I will consider it.
I have regretfully refused the current remaining applications for access to the cloud access.”
WikiLeaks editor-in-chief Kristinn Hrafnnson explains that parliamentarians were denied access as well.
Debate over whether witness statements will be read in court
The defense has asked that the witnesses be permitted to be taken through their witness statements so that the court, Assange and the public will hear the evidence in full before cross examination starts. “To plunge into cross examination would not assist yourself, the public or Mr Assange and would not be fair.”
Prosecutor James Lewis QC opposes this, saying it is contrary to Divisional Court jurisprudence and that it would allow witnesses to give additional evidence beyond their written statements and require constant adjournments to allow the prosecution to consider the evidence given on the stand before cross examination can begin.
The judge decides,
“Each of the witness statements will be made public. Mr Assange has been given a copy of those witness statements. In my view there is no benefit whatsoever to allowing the witnesses give evidence in chief. I will give the witnesses time to settle and orientate themselves and will allow no more than 30 minutes.”
Superseding indictment comes well after proceedings were underway
Six months after opening submissions, 18 months before this hearing started and a matter of weeks before the matter was listed, the US announced a new indictment.
Defense counsel Mark Summers QC says,
“It is a curiosity that the US had, in previous hearings, been content for the hearings to go ahead in February and in May, presumably knowing that this was coming.”
It wasn’t immediately obvious what had changed. Of course the conduct outlined in it, but as far as the charges in it, it was difficult to discern what was going on….
“It became clear to everyone on 21 August, just over 2 weeks ago, whether or not we were justified in thinking the charges had changed. The material was expressly now not just background material but was being put before you as potential standalone basis for criminality, that is to say, that even if the US court rejects in their entirely the existing Manning allegations, Mr Assange can be extradited and potentially convicted for this conduct on its own and this is a resounding and new development in this case. The reason I am on my feet is of course the timing of this development.”
The defense also putlined the various other criminal allegations now included in the new indictment – including assisting a whistleblower attempting to evade arrest (Snowden).
“It would be extraordinary for this court to be beginning an extradition hearing in relation to allegations like that within weeks of their announcement without warning and even more extraordinary to do in circumstances where the defendant is in custody.”
To remedy this issue, the defense proposes the court excise the new conduct alleged in the newest indictment. “It impossible for the defense team to deal with the allegations being put to him and in relation to material for which you have been provided no explanation for their late arrival.”
“It is fundamentally unfair to introduce separate criminal allegations, without notice, without time to prepare evidence, where the defense cannot properly deal with the new aspects of the case.”
“What is happening here is abnormal, unfair and liable to create real injustice if it is allowed to continue.”
“The appropriate course is for the court to exercise its powers to excise the new allegations.”
Judge refuses to excise new conduct alleged in newest indictment
Judge Baraitser says the defense should have asked for more time despite Assange still being in custody. If conduct is to be excised, she says, it must be in context of a statutory bar or abuse of process argument. The judge refuses the defense proposal to excise any new conduct in the newest superseding indictment.
Defense requests adjournment
In light of the judge’s refusal to excise the new conduct alleged, the defense asks the court for an adjournment until January.
“This is an application that we do not make lightly because Mr Assange will bear the brunt of the consequences of it. In light of your ruling, we do apply for an adjournment to allow us to gather the evidence that we need to answer the new allegations.”
We have not been able to answer the allegations which have only been made in the last few weeks. This has been made worse because of the conditions we are all having to work under.
“I can say without fear of contradiction that no one in this case has been involved in a case of this magnitude dealing with the gathering of evidence at this late stage of the process.”
The defense explained why they haven’t made this application before today’s hearing:
“First, throughout that period, Mr Assange had not seen the new request. I have mentioned more than once that the only way he gets to see documents is by posting documents into Belmarsh. We have not had opportunity to meet and consult with him. He still hasn’t received, for example, the revised opening note and the documents which accompanied it and it was that document that made clear that we were dealing with conduct that was mere narrative as we had believed it to be but was standalone criminality capable of sustaining a conviction if accepted in its own right. Instructions taken from Assange on that basis could only have commenced on 21 August, which was last week, and we took the view that we had the ability to first apply to exclude that material. We have recognized that the solution, if there is one, is adjournment.
I could of course appraise you with more detail of the difficulties the defence team has been operating under the past few months.”
Acknowledging that they haven’t seen their client in person, the judge asks if the defense has been able to speak to Assange by phone. They respond yes, but only twice in very short conversations:
“It is not easy and even coherent on the phone. I don’t want to belabor the difficulties we have had in communicating with our client in the past week, but they have been very significant in the time period you are concerned with. He was, in essence, over that unsatisfactory medium, he was having to take in information from us on – any view – complex documents and to make him aware of the issues and to take a decision on them.”
The defense explained there is no videolink, only these short, difficult conversations by phone. The judge adjourned for 10 minutes to consider the defense’s application.
Judge denies defense request for adjournment
The judge says the defense had time to apply to adjourn previously and they did not do so. Rejecting the defense’s reasoning for applying now, she says she ruled not to excise new conduct now but this can’t have come as a surprise and the defense should have acted as if we would proceed. Judge denies defense application to adjourn.
Journalism professor begins testimony
Mark Feldstein, journalism historian and professor at the University of Maryland, gives testimony. See his witness statement here as to his determination that what Assange and WikiLeaks practice is journalism: Mark Feldstein witness statement
Feldstein testifies to the ubiquity of leaks of classified information:
“There are so many of them – thousands upon thousands – it is routine; every study in the last 60 years has said the leaks of classified information inform the public about government decision making but they also evidence government dishonesty….and they go back to George Washington’s presidency.”
Some journalists make a career of this?
Feldstein says, “Yes, Pulitzer prize winners and some of the most respected journalists in the nation.”
Would you expect publishers to be prosecuted for this criminal conduct?
“Well no…because the First Amendment protects a free press and it is vital that the press expise wrongdoing….not because journalists are somehow privileged but that the public has a right to be informed.”
Has there ever been a precedent of the prosecution of a publisher?
“There has always been a divide, the source-distributor divide….they have charged whistleblowers or sources, but have never charged a publisher, a journalistic or other news outlet.”
There have been other attempts to prosecute journalists before?
“There have been extraordinary efforts to punish presidential enemies…”
Presidents going after journalists but never to the point of a grand jury returning charges?
“That’s correct”
At this point, the court had technical issues with Prof. Feldstein’s videolink, and adjourned for the day. Court resumes tomorrow, 10am London time.
