SEPTEMBER 18, 2020
- See previous daily reports here and a video recap of last week’s proceedings here
- See an overview of USA v. Julian Assange here
- See a thread of live-tweets of today’s hearing here
- See today’s video about the Suppression of Truth here
Nicky Hager: Assange’s redactions protected informants
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.”
The hearings resume on Monday.