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”

Following el-Masri’s statement, historian and attorney Carey Shenkman continued his testimony on the historical applications of the Espionage Act.

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.

SEPTEMBER 16, 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 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.

WikiLeaks’ Harm-Minimization Withheld 15,000 documents

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 Spiegel interviewed Assange in 2010 about his harm-minimization process

Assange: The Kabul files contain no information related to current troop movements. The source went through their own harm-minimization process and instructed us to conduct our usual review to make sure there was not a significant chance of innocents being negatively affected. We understand the importance of protecting confidential sources, and we understand why it is important to protect certain US and ISAF sources.

SPIEGEL: So what, specifically, did you do to minimize any possible harm?

Assange: We identified cases where there may be a reasonable chance of harm occurring to the innocent. Those records were identified and edited accordingly.

Iraq War Logs: WikiLeaks redacted more than the U.S. gov’t

Though he personally wasn’t as involved in later releases, Goetz testified that with future releases, WikiLeaks’ harm-minimization process developed over time, and he said that the organization “overshot” with the Iraq War Logs, and “ended up redacting more than the Defense Department did. Some of the files had been declassified and released under FOIA requests, so one could compare redactions and see that WikiLeaks had concealed more names than the U.S. government had.

WikiLeaks docs confirm CIA torture & escaping accountability

Giving an example of the types of stories that WikiLeaks releases assisted with, Goetz explained had been investigating the story of Khalid el-Masri, a German citizen who was kidnapped by the CIA in Macedonia, extraordinarily rendered to a black site in Afghanistan where he was detained and tortured in 2004. This wasn’t known at the time, so Goetz searched the documents for el-Masri’s name, saw that he had been brought to Afghanistan, and found the CIA kidnappers “who’d forced el-Masri onto a military plane, sodomized him and sent him” to Afghanistan.

Goetz tracked down the CIA agents responsible in the United States, interviewed them, and reported the story. Following that broadcast, a Munich state prosecutor issued an arrest warrant for the 13 CIA agents. But, Goetz said, “It turns out the arrest warrant was never actually issued to the United States.” When he saw the State Department cables, he discovered that the U.S. had pressured the German prosecutor to issue the warrant in a jurisdiction where the perpetrators didn’t live, threatening “repercussions” otherwise.

Following Goetz’s testimony, the defense wanted to read a statement from Khalid el-Masri himself into the court record. The prosecution objected, suggesting that el-Masri isn’t in the charges against Assange and therefore is irrelevant and shouldn’t be considered admissible. While still objecting, prosecutor James Lewis said the defense could read the statement “if it wants to waste half an hour of the court’s time.” The judge warned  Lewis that the way he was objecting, he was going “down a risky path” that could involve accepting the defense’s evidence “unchallenged.”

The remote press video went down at this time, but journalists inside the court reported that discussion of el-Masri’s statement continued, with the government objecting because it didn’t want to imply that allowing his evidence to be read that the prosecution would stipulate that el-Masri was tortured by the U.S. government. The statement wasn’t read aloud and it appears the matter is yet to be resolved.

• See this BoingBoing video from 2010 on ‘WikiLeaks and the el-Masri case’ in which el-Masri relates his experiences: “El-Masri’s futile efforts at receiving justice in the U.S. are well-known, but cables recently leaked by Wikileaks reveal that the U.S. also warned German authorities not to allow a local investigation into his kidnapping.”
• Also see ‘El-Masri v. Macedonia‘, ‘Extraordinary Renditions: The Right to the Truth.’

Unredacted Cables Falsely Blamed on WikiLeaks

A central argument in the U.S. government’s case is that WikiLeaks published documents which, the government alleged, it knew would cause harm. Time and again the prosecution alerts witnesses to the fact that Assange is only charged with publishing on the internet the unredacted cables containing the names of sources who could have been harmed. The claim is misleading about the charges and was contradicted by both witnesses today.

While the three “pure publication” counts do indeed deal with the 2011 publication of unredacted cables, the 15 other charges, which charge Assange with “soliciting” “obtaining” and “receiving” the documents, deal with the full datasets of Iraq and Afghan war logs, the State Department cables, and the Guantanamo Bay detainee assessment briefs. The charges work in unison, relying on each other, and so the full set of documents must be discussed together. Furthermore, all of the documents — and any conduct that the judge deems relevant even if not in the charges — would be considered at sentencing, where the court considers factors to be mitigating or aggravating.

But even on the facts of it, today’s witnesses strongly disputed the government’s claims. Asked about the 2011 publication of unredacted cables, John Goetz explained what really happened: in February 2011, Guardian reporters David Leigh and Luke Harding published a book with a password to the unencrypted file set as the title of a chapter. German magazine Die Freitag published this information, which allowed eagle-eyed observers to use that password to unlock the files and publish them online in full. Most notably, they were released on Cryptome, a “rival leak site” as described by the government, but they were also mirrored on several other sites, so they could not be taken down and they were out of WikiLeaks’ hands.

Assange and other WikiLeaks staff called the State Department’s emergency phone line at the time (as you can see in this video clip) warning that sources had been named, but they were ignored.

• See Julian Assange’s Emergency Call to Hillary Clintons Office 

The prosecution pointed to a Guardian article from September 2011, in which the media partners condemn WikiLeaks’ release of the unredacted cables (though they concede in the article that the material was first published by Cryptome). Goetz testified, however, that the media partners did not know the true chain of events at this time, it was only later put together that the password in Leigh and Harding’s book was to blame for the material being released.

Goetz also said that Assange had tried to stop Die Freitag from publishing information that would lead to the release of unredacted files.

Daniel Ellsberg: “I totally disagree with the ‘good Ellsberg / bad Assange’ theory”

Next the defense called Pentagon Papers whistleblower Daniel Ellsberg to testify about Assange’s motivations, Ellsberg’s own experience being prosecuted under the Espionage Act, and his view on the unredacted publication of State Department cables.

Ellsberg explained in his witness statement that he copied and released the Pentagon Papers, comprising 7,000 Top Secret files, to the New York Times in 1971 because they demonstrated that the United States government had “started and continued” the Vietnam War “with the knowledge that it could not be won” and successive presidential administrations lied to Congress and the public about it.

“My own actions in relation to the Pentagon Papers and the consequences of their publication have been acknowledged to have performed such a radical change of understanding. I view the WikiLeaks publications of 2010 and 2011 to be of comparable importance.”

In court, Ellsberg testified about Julian Assange’s political opinions, his opposition to war and believe that justice is brought about by transparency and accountability. He and Assange both felt that both the Afghan and Iraq wars were wrong and that it was “clear even to the layman” that the Iraq war was a “crime.” an “aggressive war” as defined by the United Nations. He compared the war in Afghanistan to the war in Vietnam, the former a “rerun” of the latter, as perpetrators of both knew that they could only result in a seemingly endless “stalemate.”

What had changed, Ellsberg said, was that in Afghanistan (and in Iraq), horrific abuses, illegal killings and war crimes had become normalized, so much so that they appeared in “low-level field reports.” The Iraq and Afghanistan War Logs are marked up to Secret, whereas the Pentagon Papers were all Top Secret. Ellsberg said he “would’ve been astonished to see similar reports in Vietnam” in low-level classification. They are now so routine, he said, that they appear in the leaked logs as just the normal course of war.

The famous ‘Collateral Murder’ video illustrates this further. The title of the video, taken from a U.S. Army Apache helicopter and documenting the gunning down of civilians including journalists, children, and their rescuers, was controversial when it was released in 2010. Assange was criticized for labeling the actions “murder,” but to Ellsberg, the title caught his eye for a different reason:

“There was no question to me that what I was witnessing at the time was murder. In fact, the problematic word in the title was ‘Collateral’, implying that it was unintended. This was murder, and a war crime. So I was very glad that the American public was confronted with this.”

Ellsberg spoke of the decision to leak them:

“I was very impressed that the source of these documents, Chelsea Manning, was willing to risk her liberty and even her life to make this information public. It was the first time in 40 years I saw someone else doing that, and I felt kinship toward her.”

Ellsberg and the Espionage Act

Asked if he was able to explain his own motivations when he was charged under the Espionage Act by the Nixon administration, Ellsberg said,

“No, absolutely not…I had withheld, in the nearly 2 years between the revelations and their release, discussion as to what led me to do that in the hopes that I could testify under oath, with sufficient solemnity and credibility.”

But at his 1973 trial, when his lawyer asked Ellsberg on the stand to explain his motivation, the government objected that the question was irrelevant, and the judge agreed. This established the Espionage Act as a “strict liability offense,” with every prosecution under the law in the years since handled in the same way.

“The Espionage Act does not allow for whistleblowing, to allow you to say you were informing the polity. So I did not have a fair trial, no one since me had a fair trial on these charges, and Julian Assange cannot remotely get a fair trial under those charges if he were tried.”

False Dichotomy

On cross-examination, the prosecution attempted to draw out a distinction between Ellsberg and Assange by citing Floyd Abrams, who along with James Goodale argued for the New York Times’ right to publish the Pentagon Papers, as Abrams has written that he believes WikiLeaks is different from the Ellsberg’s release. But Ellsberg said Abrams “doesn’t understand my motives or Julian’s” since he didn’t actually read through all the Pentagon Papers and didn’t discuss Ellsberg’s motivations with him.

Ellsberg added that this false dichotomy isn’t limited to Abrams. “And I’d say people who criticize Ed Snowden, Chelsea Manning, Julian Assange, they don’t want to criticize me — it is entirely misleading,” he said.

Ellsberg said at the time of his releases, he was harshly criticized, the way Snowden and Manning and Assange are now. Then for a long time he was ignored. And now that these new releases have come out, WikiLeaks’ in 2010 and Snowden’s NSA revelations in 2013, all of a sudden commentators were contrasting them with him, referring to Ellsberg positively “to draw some contrast between us.”

“I totally disagree with the ‘good Ellsberg / bad Assange’ theory,” he said. “Except for the computer aspects which didn’t exist back then, I see no difference between the charges against me and the charges against Assange.”

In addition to the personalities involved, the prosecution also attempted to draw a contrast between Assange’s and Ellsberg’s releases, in particular by highlighting the harm the government alleges was caused by WikiLeaks disclosures.

Prosecutor James Lewis cited the fact that Ellsberg withheld 4 volumes of documents from the media, though he gave the full set of files to the Senate, as well as the fact that Abrams quoted Ellsberg as having said, “I don’t want to get in the way of diplomacy,” whereas, Abrams says, Assange clearly does. The prosecution painted this as Ellsberg wanting to protect his country from harm. But Ellsberg clarified that at the time of his release, the U.S. and Vietnam had been engaged in peace negotiations. They were not progressing very well, but the talks were taking place, and Ellsberg didn’t want the release to be used as a pretext for withdrawing from peace talks.

Ellsberg recalls his own full quote: “I want to get in the way of the war, I don’t want to get in the way of negotiations.”

This is also the reason Ellsberg didn’t redact a single word of his releases, even allowing the publication of the name of a clandestine CIA agent (who he knew was already known in Vietnam). He didn’t want the public to think that the files had been edited or interfered with. He wanted to show there was no adequate justification for the killings in Vietnam, and he didn’t want to allow any implication that something he redacted covered up such a justification.

WikiLeaks did not cause harm

Lewis still attempted to get Ellsberg to concede that WikiLeaks’ documents were more harmful.

“Are you saying no one was placed in grave danger?”, he asked.

“It appears not, as there was no harm, as shown by the Defense Department,” Ellsberg said, referring to the fact that in Chelsea Manning’s court-martial, the government was forced to admit that it could not point to a single death that resulted from WikiLeaks’ releases.

Lewis then spent several minutes reading aloud from an affidavit from assistant U.S. attorney Gordon Kromberg on the government’s allegations of harm caused by WikiLeaks releases. These included many allegations and claims that were already attempted in Manning’s trial, such as the fact that WikiLeaks files were found in Osama Bin Laden’s compound, or the Taliban saying they would read through the datasets for informants to punish. These arguments were put forward in the government’s attempt to prosecute Manning for “aiding the enemy” — she was acquitted on that charge.

At one point, Ellsberg interrupted the prosecutor to ask if he would ever get the chance to respond to them. At the end of Lewis’ recitation, Ellsberg said, “I find the government recounting of these allegations to be cynical. Am I right in that none of these people actually suffered physical harm?”

Lewis responded, “The rules are that you do not get to ask the questions.”

Ellsberg reminded the court that the U.S. government was specifically asked to help redact the documents and declined to do so. Furthermore, he said, if there really was massive harm caused by the releases, he would have expected the government to show something far more concrete, or the Taliban to have pointed to actual informants they punished rather than merely talking about it.

Lewis spoke about some named informants having to flee their countries or their posts.

“I understand the anxiety that these people named might be harmed. And that anxiety is caused by the refusal to help WikiLeaks redact. But aside from that, people having to leave the country, must be put in the context of Mr Assange trying to end a war that has caused 37 million refugees and over a million deaths.”

SEPTEMBER 15, 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 yesterday’s videos about the effects of Julian Assange’s imprisonment here and one about freedom of the press here

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.

The prosecution attempted to invoke the Espionage Act cases of whistleblowers Terry Albury, Reality Winner, and Jeffrey Sterling as evidence that these cases often result in shorter sentences. But Sterling himself tweeted in response,

–

In February, Sterling wrote, “Reject Using My Unjust Conviction Against Julian Assange.”

Lewis noted that the U.S. Dept of Justice has made several adjustments to the second superseding indictment that it brought in June 2020. Despite adding no new charges, the indictment adds new language that, Lewis explained, increases the likelihood of a higher sentence. These added factors include other co-conspirators the government alleged were under Assange’s direction, reference to a ‘Teenager’ among those (this refers to Siggi Thordarson, Icelandic informant), “special skills” (here could refer to Assange’s alleged computer capabilities), and the fact that the State Department cables allegedly included names of U.S. government employees (at embassies around the world). These all lead Lewis to believe the newest superseding indictment substantially increases a potential sentence for Assange.

Abusive conditions await Assange

Finally, Lewis testified to the conditions Assange would be likely to face in a U.S. prison, both pre- and post-trial. Pre-trial, Assange would be held at the Alexandria Detention Center, and Lewis believes he would be held under both SAMs, which gags a defendant and permits monitoring of attorney-client communications, and the Classified Information Procedures Act (CIPA), which curtails the defendant’s ability to review classified documents in his/her case.

It’s also highly likely Assange would be held in administrative segregation (‘ad-seg), due to his notoriety and mental health issues, and the combination of ad-seg and SAMs would be tantamount to solitary confinement and extremely dangerous to Assange’s psychological health. Lewis testified that two-thirds of all incidents of suicide and self-harm among inmates take place in segregated housing.

Tom Durkin: Assange would not get a fair trial in the United States

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.

SEPTEMBER 9, 2020

• See our report from Day 1 and our report from day 2
• See the live-tweeted coverage of today’s hearing in one thread

Professor Paul Rogers on Trump’s politically motivated prosecution

Paul Rogers, Emeritus Professor of Peace Studies at Bradford University, took the stand by video link to testify about Julian Assange’s political views and how they factor into the Trump administration’s prosecution of Assange for publishing.

Rogers reviewed Assange’s speeches, including an anti-war speech in 2011 in London and a speech to the UN following the release of Iraq and Afghan war logs, as well as Mairead Maguire’s nomination of Assange for the Nobel Peace Prize in 2019. LINKs. Rogers concluded that Assange’s views don’t fall into traditional liberal or conservative belief systems but are rather more libertarian, anti-war, and based on values of transparency and accountability.

On the stand, Rogers talked about how WikiLeaks put these values into practice with the war logs publications, and he contextualized the releases with changing opinions in America regarding the wars in Iraq and Afghanistan:

“Possibly the most important part of the whole thing,” he said, was that WikiLeaks’ releases showed 15,000 previously uncounted civilian casualties, “bringing to the American public a very disturbing aspect of the whole war.”

As Rogers puts it in his statement,

The political objective of seeking to achieve greater transparency in the workings of governments is clearly both the motivation and the modus operandi for the work of Mr Assange and the organisation WikiLeaks. Its manifestation, as is set out in the study by Professor Benkler, has constituted a wholesale alteration of accessing and making available for public information, the secrets that governments wish to remain unknown to their general populations. The subject matter of the charges Mr Assange currently faces involve strong examples of the clash of these positions both in their content and scope, and in the reaction of government.

In his oral testimony, Rogers explained that these views and motivations put him in contrast with successive U.S. administrations but particularly in contrast with the Trump administration.

It is clear that Assange is being opposed because of the success of WikiLeaks in bringing information to the public, he said. This is dangerous to the Trump administration: “the root of it is that Assange and what he stands for represents a threat to normal political endeavor.”  In addition to opposing Assange’s words and views, the fact that Obama didn’t prosecute should to some extent be considered in why Trump is prosecuting.

Prosecutor James Lewis QC sought to undermine Assange’s political views by bringing up his views on corporations and NGOs, but Rogers explained that “political opinion” isn’t just about government leaders, that the definition of political opinion has changed significantly in the last 50 years, and that Assange has a view on “transnational elites.”

Asked if simply being a journalist necessitated political opinions, Rogers explained that it’s a complex question, that deciding what to publish and what not to constitutes a political opinion, but Lewis complained that his answers were too long, not yes or no.

Lewis further sought to portray Rogers as biased toward Assange and the defense. He asked why Rogers didn’t include in his statement, in which he referenced views of other experts like Noam Chomsky and Carey Shenkman, the views of assistant U.S. attorney Gordon Kromberg, which defended the prosecution of Assange as a criminal matter, not a political one.

Rogers responded that he takes it as read that federal prosecutors at the lower level act in good faith, that they do as they’re instructed in accordance with the law, but that the wider political context — namely that the Obama administration didn’t prosecute and the Trump admin did, and the Trump administration represents a marked shift in the U.S. political situation — far outweighs the statements of a U.S. attorney.

The prosecution then suggested that the Obama administration may not have prosecuted Assange because he was in the Ecuadorian Embassy at the time:

Lewis: Was it possible to arrest Mr Assange in 2013?

Rogers: Is it necessary to be able to arrest someone to bring a prosecution?

Lewis: What would be the point if he’s hiding in the embassy?

Rogers: Well, to put pressure on him. It would have made very good sense to bring it at that time, to show a standing attempt to bring Mr Assange to justice.

Lewis reviewed the same items as he did with Feldstein yesterday, including WikiLeaks’ lawyer and editor suggesting they still believed charges were possible, but again and again Rogers brought the discussion back to the wider context, and the fact that the Trump administration’s views more broadly have to be considered. Statements by then-CIA director Mike Pompeo, then-Attorney General Jeff Sessions and others have to be part of the determination. Rogers also referenced Obama’s commutation of Chelsea Manning’s sentence. The Trump administration wasn’t happy about that, but a commutation can’t be reversed by a subsequent administration, so this could be Trump’s way of responding to that.

Rogers hammered home that by calling this a “politically motivated prosecution,” he isn’t saying that lower-level federal prosecutors are acting in bad faith. Rather, he said, the influence comes from the top down.

Court is in recess for lunch. Trevor Timm of the Freedom of the Press Foundation will testify after the break.

Trevor Timm: These charges would ‘radically rewrite’ the First Amendment

Founder of the Freedom of the Press Foundation, which advocates for reporters’ rights and tracks violations to press freedom across the United States, Trevor Timm took the stand by videolink this afternoon to talk about the dangers the indictment against Assange poses to journalists and their sources.

Timm objects to the indictment on the grounds that it threatens to criminalize source protection and the passive receipt of government documents as well as pure publication. He concluded that “It would be a radical rewrite of the First Amendment if the government were to go forward with these charges.”

Protecting your sources

As Timm writes in his statement,

“The decision to indict Julian Assange on allegations of a “conspiracy” between a publisher and his source or potential sources, and for the publication of truthful information, encroaches on fundamental press freedoms.”

Freedom of the Press Foundation has helped many news organizations adopt SecureDrop, an anonymous and secure submission system for sources to safely send documents to journalists undetected. While a largely unused practice when WikiLeaks pioneered it before 2010, major news outlets around the world make use of SecureDrop, and some of them explicitly ask for leaks of government documents.

The way this indictment is written, particularly the charge alleging Assange engaged in a conspiracy with source Chelsea Manning to crack a military computer password in order to remain anonymous, would make this extremely common news gathering illegal. “I don’t think it’s an exaggeration to say this indictment would criminalize national security journalism.”

“Materials journalists often write about and print do not magically land on their desks,” he said. They talk to sources, ask for clarification, ask for more information. “This is standard practice for journalists.”

News outlets and press freedom observers agree. Timm said,

“This is almost a consensus opinion among press freedom groups and media lawyers who have looked at this indictment. This is why newspapers, even those who have criticized Mr Assange, have condemned this indictment.”

Espionage Act: over-broad and over-used

Beyond the effort to criminalize source-protection and news gathering, Timm is extremely concerned about the other charges in the Assange indictment under the Espionage Act of 1917. Some charges criminalize publishing and for soliciting information, and some of the charges are even more broad. “Just the mere thought of obtaining these documents,” Timm said, “the US government is saying is potentially criminal.”

Timm discussed previous efforts to go after journalists under the Espionage Act, efforts which have failed under legal scrutiny.  “In each and every case,” Timm said, “the government concluded or was forced to conclude” that an Espionage Act prosecution would violate First Amendment protections, including the Obama administration’s’s 2013 determination not to prosecute WikiLeaks.

Each Espionage Act charge carries 10 years in prison, allows no public interest defense, and only requires the government prove harm could “possibly” have been caused by leaking or publishing.

James Lewis QC, cross-examining Timm for the prosecution, highlighted Timm’s claim in his witness statement that Trump is waging a “war on journalism.” He sought to undercut the claim by pointing out that the U.S. Department of Justice has explicitly said that they do not consider Assange to be a journalist and that they aren’t going after journalists.

Timm responded, “In the US, the First Amendment protects everyone. Whether you consider Assange a journalist doesn’t matter, he was engaging in journalistic activity.”

Lewis tried again, emphasizing that the DOJ specifically went “out of its way” to say they don’t target journalists.

Timm said,

“My opinions are not based on a Justice Department press release but on what is actually contained in the indictment. There are several charges that deal with the mere fact that WikiLeaks had these in their possession. You say there are three charges dealing with publication just of documents with unredacted names, but the rest of the charges deal with all of these document sets, and this criminalizes journalism.

The aspect of criminalizing publication worries me greatly, but there are many other charges that are as worrying or more so, that could criminalize journalistic practice whether you consider Mr Assange a journalist or not.”

Lewis tried to get Timm to comment on the 2011 unredacted publication of the State Department cables, but Timm made clear that whether WikiLeaks has “perfect editorial judgment” shouldn’t matter as to whether the action is illegal. Furthermore, he said, “I certainly don’t think the US Government should be the one to determine whether this was good editorial judgment.”

Trump: Modern-day Nixon

“Trump has the most confrontational approach to the media since Nixon,” Timm said. He referenced Trump tweeting 2,200 times about the press, including calling them the “enemy of the people.” Timm said, “This case is the perfect opportunity for him to create a precedent to punish the rest of the media.

“To me it’s very telling that Trump’s is the first one to try to bring a case like this since the Nixon administration.”

September 7, 2020

Press Briefing: Assange Extradition Hearing September 2020

Kevin Gosztola: Previewing witnesses scheduled to testify

See live-tweeted coverage of today’s hearing in one thread.

Assange has been re-arrested, the previous extradition warrant has been withdrawn and the new warrant has been served.

NGOs access to Assange hearing revoked

Judge Vanessa Baraitser then announced that some 40 individuals were granted remove (video) access to the proceedings by mistake, and their access has been revoked. Courage has learned that those whose access was rescinded include representatives from Amnesty International and PEN Norway.

“I know that others are attending this hearing remotely and in an adjacent courtroom. I am allowing this to take place for social distancing and technology allows us to watch this remotely. Those who attend remotely are still bound to the usual rules relevant to court hearings. I remind you that it is a criminal offense to record or broadcast any part of this hearing, including screenshots on any device. As you know I am aware that a photograph has been taken of Mr Assange inside court and shared on social media in breach of these rules.

I have received a list of 40 people who wish to attend this remotely by cloud. This is something I can consider but only after I have received an application. I have granted a number of remote access to lawyers and a small number of people including lawyers who have acted for Mr Assange in closely related proceedings. In error, the court sent out to others who had sought access. During this pandemic, there have been changes about how people can access proceedings. I remain concerned about my ability to maintain the integrity of the court if they are able to attend remotely. Normally, I can see what is happening in the court room to ensure the integrity of courtroom is maintained. Once livestreaming takes place, the court cannot manage this breach even less when the person is outside the jurisdiction. I want to make it clear that the public interest and allowing remote access is unlikely to meet the interests of justice tests. There are many jurisdictions allowing travel to the UK during COVID, so lessening restrictions on travel. For those who consider they still not travel to the UK to attend the hearing, then they need to apply again and I will consider it.

I have regretfully refused the current remaining applications for access to the cloud access.”

WikiLeaks editor-in-chief Kristinn Hrafnnson explains that parliamentarians were denied access as well.

Debate over whether witness statements will be read in court

The defense has asked that the witnesses be permitted to be taken through their witness statements so that the court, Assange and the public will hear the evidence in full before cross examination starts. “To plunge into cross examination would not assist yourself, the public or Mr Assange and would not be fair.”

Prosecutor James Lewis QC opposes this, saying it is contrary to Divisional Court jurisprudence and that it would allow witnesses to give additional evidence beyond their written statements and require constant adjournments to allow the prosecution to consider the evidence given on the stand before cross examination can begin.

The judge decides,

“Each of the witness statements will be made public. Mr Assange has been given a copy of those witness statements. In my view there is no benefit whatsoever to allowing the witnesses give evidence in chief. I will give the witnesses time to settle and orientate themselves and will allow no more than 30 minutes.”

Superseding indictment comes well after proceedings were underway

Six months after opening submissions, 18 months before this hearing started and a matter of weeks before the matter was listed, the US announced a new indictment.

Defense counsel Mark Summers QC says,

“It is a curiosity that the US had, in previous hearings, been content for the hearings to go ahead in February and in May, presumably knowing that this was coming.”

It wasn’t immediately obvious what had changed. Of course the conduct outlined in it, but as far as the charges in it, it was difficult to discern what was going on….

“It became clear to everyone on 21 August, just over 2 weeks ago, whether or not we were justified in thinking the charges had changed. The material was expressly now not just background material but was being put before you as potential standalone basis for criminality, that is to say, that even if the US court rejects in their entirely the existing Manning allegations, Mr Assange can be extradited and potentially convicted for this conduct on its own and this is a resounding and new development in this case. The reason I am on my feet is of course the timing of this development.”

The defense also putlined the various other criminal allegations now included in the new indictment – including assisting a whistleblower attempting to evade arrest (Snowden).

“It would be extraordinary for this court to be beginning an extradition hearing in relation to allegations like that within weeks of their announcement without warning and even more extraordinary to do in circumstances where the defendant is in custody.”

To remedy this issue, the defense proposes the court excise the new conduct alleged in the newest indictment. “It impossible for the defense team to deal with the allegations being put to him and in relation to material for which you have been provided no explanation for their late arrival.”

“It is fundamentally unfair to introduce separate criminal allegations, without notice, without time to prepare evidence, where the defense cannot properly deal with the new aspects of the case.”

“What is happening here is abnormal, unfair and liable to create real injustice if it is allowed to continue.”

“The appropriate course is for the court to exercise its powers to excise the new allegations.”

Judge refuses to excise new conduct alleged in newest indictment

Judge Baraitser says the defense should have asked for more time despite Assange still being in custody. If conduct is to be excised, she says, it must be in context of a statutory bar or abuse of process argument. The judge refuses the defense proposal to excise any new conduct in the newest superseding indictment.

Defense requests adjournment

In light of the judge’s refusal to excise the new conduct alleged, the defense asks the court for an adjournment until January.

“This is an application that we do not make lightly because Mr Assange will bear the brunt of the consequences of it. In light of your ruling, we do apply for an adjournment to allow us to gather the evidence that we need to answer the new allegations.”

We have not been able to answer the allegations which have only been made in the last few weeks. This has been made worse because of the conditions we are all having to work under.

“I can say without fear of contradiction that no one in this case has been involved in a case of this magnitude dealing with the gathering of evidence at this late stage of the process.”

The defense explained why they haven’t made this application before today’s hearing:

“First, throughout that period, Mr Assange had not seen the new request. I have mentioned more than once that the only way he gets to see documents is by posting documents into Belmarsh. We have not had opportunity to meet and consult with him. He still hasn’t received, for example, the revised opening note and the documents which accompanied it and it was that document that made clear that we were dealing with conduct that was mere narrative as we had believed it to be but was standalone criminality capable of sustaining a conviction if accepted in its own right. Instructions taken from Assange on that basis could only have commenced on 21 August, which was last week, and we took the view that we had the ability to first apply to exclude that material. We have recognized that the solution, if there is one, is adjournment.

I could of course appraise you with more detail of the difficulties the defence team has been operating under the past few months.”

Acknowledging that they haven’t seen their client in person, the judge asks if the defense has been able to speak to Assange by phone. They respond yes, but only twice in very short conversations:

“It is not easy and even coherent on the phone. I don’t want to belabor the difficulties we have had in communicating with our client in the past week, but they have been very significant in the time period you are concerned with. He was, in essence, over that unsatisfactory medium, he was having to take in information from us on – any view – complex documents and to make him aware of the issues and to take a decision on them.”

The defense explained there is no videolink, only these short, difficult conversations by phone. The judge adjourned for 10 minutes to consider the defense’s application.

Judge denies defense request for adjournment

The judge says the defense had time to apply to adjourn previously and they did not do so. Rejecting the defense’s reasoning for applying now, she says she ruled not to excise new conduct now but this can’t have come as a surprise and the defense should have acted as if we would proceed. Judge denies defense application to adjourn.

Journalism professor begins testimony

Mark Feldstein, journalism historian and professor at the University of Maryland, gives testimony. See his witness statement here as to his determination that what Assange and WikiLeaks practice is journalism: Mark Feldstein witness statement

Feldstein testifies to the ubiquity of leaks of classified information:

“There are so many of them – thousands upon thousands – it is routine; every study in the last 60 years has said the leaks of classified information inform the public about government decision making but they also evidence government dishonesty….and they go back to George Washington’s presidency.”

Some journalists make a career of this?

Feldstein says, “Yes, Pulitzer prize winners and some of the most respected journalists in the nation.”

Would you expect publishers to be prosecuted for this criminal conduct?

“Well no…because the First Amendment protects a free press and it is vital that the press expise wrongdoing….not because journalists are somehow privileged but that the public has a right to be informed.”

Has there ever been a precedent of the prosecution of a publisher?

“There has always been a divide, the source-distributor divide….they have charged whistleblowers or sources, but have never charged a publisher, a journalistic or other news outlet.”

There have been other attempts to prosecute journalists before?

“There have been extraordinary efforts to punish presidential enemies…”

Presidents going after journalists but never to the point of a grand jury returning charges?

“That’s correct”

At this point, the court had technical issues with Prof. Feldstein’s videolink, and adjourned for the day. Court resumes tomorrow, 10am London time.