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
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
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. Toe 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.
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.”
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
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
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
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
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
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, 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.”
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.
See a thread of live-tweets of today’s hearing here
Christian Grothoff: WikiLeaks did not publish unredacted cables first
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
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.
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
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
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
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
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.
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
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”
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.”
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.”
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
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.
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
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
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. LINKs. Rogers concluded that Assange’s views don’t fall into traditional liberal or conservative belief systems but are rather more libertarian, anti-war, and based on values of transparency and accountability.
On the stand, Rogers talked about how WikiLeaks put these values into practice with the war logs publications, and he contextualized the releases with changing opinions in America regarding the wars in Iraq and Afghanistan:
“Possibly the most important part of the whole thing,” he said, was that WikiLeaks’ releases showed 15,000 previously uncounted civilian casualties, “bringing to the American public a very disturbing aspect of the whole war.”
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.
“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
Journalism professor Mark Feldstein took the stand to continue his testimony which began yesterday, picking up where he left off on the long history of journalists using classified information in their reporting.
Feldstein confirmed that soliciting information is “standard journalistic behavior.” When teaching journalism, Feldstein talks about asking sources for evidence, actively seeking information, working with them to find documents that are newsworthy, and directing them as to what to find out. “It’s all routine,” he said.
Also routine are efforts to conceal sources’ identities. “Trying to protect your source is a journalistic obligation” Feldstein said, adding, “We use all kinds of techniques to protect them, including payphones, anonymity, encryption, removing fingerprints from documents, reporters do this all the time.”
Later, the prosecution would attempt to draw substantial differences between the New York Times and WikiLeaks, suggesting journalists don’t steal or unlawfully obtain information. While agreeing that journalists are not above the law, Feldstein says that it’s a “slippery slope” as to what constitutes “soliciting” information.
“We journalists are not passive stenographers,” he said. “To suggest receiving anonymously in the mail is the only way is wrong.”
Asked if he himself has published this type of information, he said, “Yeah, I didn’t publish a lot of classified documents but my entire career virtually was soliciting and publishing secret information.”
On the question of allegations that publishing names necessarily causes harm, Feldstein said that it’s easy for the government to claim possible harm because it’s impossible to prove. “Scant evidence that national security is harmed” by government disclosures, he said, and “national security is often used as a shield to hide” embarrassing or bad actions.
Feldstein used the Pentagon Papers as an example, where the government prosecutors at the time went to court alleging that these documents exposed war plans, identified CIA officials, and could even prolong the war. Prosecutors told the court that it would cause “immediate and irreparable harm,” and only years later did one such prosecutor admit he saw no harm from the releases. But why lie at the time? We now know that President Nixon himself instructed his attorney general to smear the New York Times as “disloyal,” in any way he could.
The Trump administration’s “politically motivated prosecution”
The prosecution made repeated efforts to characterize the investigation into WikiLeaks from 2010 to 2020 as one ongoing case, which just happened to finally result in charges with President Trump in power. But Feldstein testified to his view that the Obama administration explicitly decided not to prosecute Assange, citing this 2013 article on the Obama administration deciding not to prosecute, whereas “everything changed” under the Trump administration.
The 2013 piece begins, “The [Obama administration’s] Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists.”
In 2017, by contrast, the FBI wanted a “head on a pike”, President Trump wanted journalists in jail, then-CIA director Mike Pompeo called WikiLeaks a “non-state hostile intelligence agency”, and then-Attorney General Jeff Sessions made Assange’s arrest a “priority.”
Even in this administration, the decision was controversial. This 2019 Post article explicitly names James Trump and Daniel Grooms as federal prosecutors who disagreed with prosecuting Assange under the Espionage Act, because it was “so susceptible to First Amendment and other complicated legal and factual challenges.”
The prosecution attempted to show that WikiLeaks, Assange and his lawyers believed charges were still coming, but Feldstein said that while of course lawyers would protect their client, and while WikiLeaks would likely always fear charges, the “proof is in the pudding” that the Obama admin did not bring charges and Trump did, with no new evidence coming forward in between.
In answering closing questions, Feldstein was very clear as to why he believed the prosecution of Assange was politically motivated, citing several reasons: the unprecedented scope of these charges, the fact that a prosecution was rejected by the Obama administration, the framing of the superseding indictment, and President Trump’s “known vitriol toward the press.” Finally, he said, the only attempts to prosecute journalists in the past were “obviously highly political.”
The prosecution suggested Feldstein was speculating and returned to the idea that names published in the documents would cause harm and an objective grand jury could see that. Feldstein responded that if that was the real intention, the U.S. could have indicted Assange under the much narrower Intelligence Identities Protection Act of 1982, which criminalizes the exposure of certain intelligence figures.
Expanding on the dangers of this broad scope in the indictment, Feldstein said, “recruiting and conspiracy are scary terms, used for terrorists.” By contrast, journalists direct sources, say what they need, send back for more information. “So if that becomes criminalized, if that becomes conspiring, then most of what investigative journalists do would be criminal.”
Assange has been re-arrested, the previous extradition warrant has been withdrawn and the new warrant has been served.
NGOs access to Assange hearing revoked
Judge Vanessa Baraitser then announced that some 40 individuals were granted remove (video) access to the proceedings by mistake, and their access has been revoked. Courage has learned that those whose access was rescinded include representatives from Amnesty International and PEN Norway.
“I know that others are attending this hearing remotely and in an adjacent courtroom. I am allowing this to take place for social distancing and technology allows us to watch this remotely. Those who attend remotely are still bound to the usual rules relevant to court hearings. I remind you that it is a criminal offense to record or broadcast any part of this hearing, including screenshots on any device. As you know I am aware that a photograph has been taken of Mr Assange inside court and shared on social media in breach of these rules.
I have received a list of 40 people who wish to attend this remotely by cloud. This is something I can consider but only after I have received an application. I have granted a number of remote access to lawyers and a small number of people including lawyers who have acted for Mr Assange in closely related proceedings. In error, the court sent out to others who had sought access. During this pandemic, there have been changes about how people can access proceedings. I remain concerned about my ability to maintain the integrity of the court if they are able to attend remotely. Normally, I can see what is happening in the court room to ensure the integrity of courtroom is maintained. Once livestreaming takes place, the court cannot manage this breach even less when the person is outside the jurisdiction. I want to make it clear that the public interest and allowing remote access is unlikely to meet the interests of justice tests. There are many jurisdictions allowing travel to the UK during COVID, so lessening restrictions on travel. For those who consider they still not travel to the UK to attend the hearing, then they need to apply again and I will consider it.
I have regretfully refused the current remaining applications for access to the cloud access.”
WikiLeaks editor-in-chief Kristinn Hrafnnson explains that parliamentarians were denied access as well.
Debate over whether witness statements will be read in court
The defense has asked that the witnesses be permitted to be taken through their witness statements so that the court, Assange and the public will hear the evidence in full before cross examination starts. “To plunge into cross examination would not assist yourself, the public or Mr Assange and would not be fair.”
Prosecutor James Lewis QC opposes this, saying it is contrary to Divisional Court jurisprudence and that it would allow witnesses to give additional evidence beyond their written statements and require constant adjournments to allow the prosecution to consider the evidence given on the stand before cross examination can begin.
The judge decides,
“Each of the witness statements will be made public. Mr Assange has been given a copy of those witness statements. In my view there is no benefit whatsoever to allowing the witnesses give evidence in chief. I will give the witnesses time to settle and orientate themselves and will allow no more than 30 minutes.”
Superseding indictment comes well after proceedings were underway
Six months after opening submissions, 18 months before this hearing started and a matter of weeks before the matter was listed, the US announced a new indictment.
Defense counsel Mark Summers QC says,
“It is a curiosity that the US had, in previous hearings, been content for the hearings to go ahead in February and in May, presumably knowing that this was coming.”
It wasn’t immediately obvious what had changed. Of course the conduct outlined in it, but as far as the charges in it, it was difficult to discern what was going on….
“It became clear to everyone on 21 August, just over 2 weeks ago, whether or not we were justified in thinking the charges had changed. The material was expressly now not just background material but was being put before you as potential standalone basis for criminality, that is to say, that even if the US court rejects in their entirely the existing Manning allegations, Mr Assange can be extradited and potentially convicted for this conduct on its own and this is a resounding and new development in this case. The reason I am on my feet is of course the timing of this development.”
The defense also putlined the various other criminal allegations now included in the new indictment – including assisting a whistleblower attempting to evade arrest (Snowden).
“It would be extraordinary for this court to be beginning an extradition hearing in relation to allegations like that within weeks of their announcement without warning and even more extraordinary to do in circumstances where the defendant is in custody.”
To remedy this issue, the defense proposes the court excise the new conduct alleged in the newest indictment. “It impossible for the defense team to deal with the allegations being put to him and in relation to material for which you have been provided no explanation for their late arrival.”
“It is fundamentally unfair to introduce separate criminal allegations, without notice, without time to prepare evidence, where the defense cannot properly deal with the new aspects of the case.”
“What is happening here is abnormal, unfair and liable to create real injustice if it is allowed to continue.”
“The appropriate course is for the court to exercise its powers to excise the new allegations.”
Judge refuses to excise new conduct alleged in newest indictment
Judge Baraitser says the defense should have asked for more time despite Assange still being in custody. If conduct is to be excised, she says, it must be in context of a statutory bar or abuse of process argument. The judge refuses the defense proposal to excise any new conduct in the newest superseding indictment.
Defense requests adjournment
In light of the judge’s refusal to excise the new conduct alleged, the defense asks the court for an adjournment until January.
“This is an application that we do not make lightly because Mr Assange will bear the brunt of the consequences of it. In light of your ruling, we do apply for an adjournment to allow us to gather the evidence that we need to answer the new allegations.”
We have not been able to answer the allegations which have only been made in the last few weeks. This has been made worse because of the conditions we are all having to work under.
“I can say without fear of contradiction that no one in this case has been involved in a case of this magnitude dealing with the gathering of evidence at this late stage of the process.”
The defense explained why they haven’t made this application before today’s hearing:
“First, throughout that period, Mr Assange had not seen the new request. I have mentioned more than once that the only way he gets to see documents is by posting documents into Belmarsh. We have not had opportunity to meet and consult with him. He still hasn’t received, for example, the revised opening note and the documents which accompanied it and it was that document that made clear that we were dealing with conduct that was mere narrative as we had believed it to be but was standalone criminality capable of sustaining a conviction if accepted in its own right. Instructions taken from Assange on that basis could only have commenced on 21 August, which was last week, and we took the view that we had the ability to first apply to exclude that material. We have recognized that the solution, if there is one, is adjournment.
I could of course appraise you with more detail of the difficulties the defence team has been operating under the past few months.”
Acknowledging that they haven’t seen their client in person, the judge asks if the defense has been able to speak to Assange by phone. They respond yes, but only twice in very short conversations:
“It is not easy and even coherent on the phone. I don’t want to belabor the difficulties we have had in communicating with our client in the past week, but they have been very significant in the time period you are concerned with. He was, in essence, over that unsatisfactory medium, he was having to take in information from us on – any view – complex documents and to make him aware of the issues and to take a decision on them.”
The defense explained there is no videolink, only these short, difficult conversations by phone. The judge adjourned for 10 minutes to consider the defense’s application.
Judge denies defense request for adjournment
The judge says the defense had time to apply to adjourn previously and they did not do so. Rejecting the defense’s reasoning for applying now, she says she ruled not to excise new conduct now but this can’t have come as a surprise and the defense should have acted as if we would proceed. Judge denies defense application to adjourn.
Journalism professor begins testimony
Mark Feldstein, journalism historian and professor at the University of Maryland, gives testimony. See his witness statement here as to his determination that what Assange and WikiLeaks practice is journalism: Mark Feldstein witness statement
Feldstein testifies to the ubiquity of leaks of classified information:
“There are so many of them – thousands upon thousands – it is routine; every study in the last 60 years has said the leaks of classified information inform the public about government decision making but they also evidence government dishonesty….and they go back to George Washington’s presidency.”
Some journalists make a career of this?
Feldstein says, “Yes, Pulitzer prize winners and some of the most respected journalists in the nation.”
Would you expect publishers to be prosecuted for this criminal conduct?
“Well no…because the First Amendment protects a free press and it is vital that the press expise wrongdoing….not because journalists are somehow privileged but that the public has a right to be informed.”
Has there ever been a precedent of the prosecution of a publisher?
“There has always been a divide, the source-distributor divide….they have charged whistleblowers or sources, but have never charged a publisher, a journalistic or other news outlet.”
There have been other attempts to prosecute journalists before?
“There have been extraordinary efforts to punish presidential enemies…”
Presidents going after journalists but never to the point of a grand jury returning charges?
At this point, the court had technical issues with Prof. Feldstein’s videolink, and adjourned for the day. Court resumes tomorrow, 10am London time.