The gloves were off on Tuesday as the US Government explicitly argued that all journalists are liable to prosecution under the Espionage Act (1917) for publishing classified information, citing the Rosen case. Counsel for the US government also argued that the famous Pentagon Papers supreme court judgement on the New York Times only referred to pre-publication injunction and specifically did not preclude prosecution under the Espionage Act. The US Government even surmised in court that such an Espionage Act prosecution of the New York Times may have been successful.
It is hard for me to convey to a British audience what an assault this represents by the Trump administration on Americans’ self-image of their own political culture. The First Amendment is celebrated across the political divide and the New York Times judgement is viewed as a pillar of freedom. So much so that Hollywood’s main superstars are still making blockbusters about it, in which the heroes are the journalists rather than the actual whistleblower, Dan Ellsberg (whom I am proud to know).
The US government is now saying, completely explicitly, in court, those reporters could and should have gone to jail and that is how we will act in future. The Washington Post, the New York Times, and all the “great liberal media” of the USA are not in court to hear it and do not report it, because of their active complicity in the “othering” of Julian Assange as something sub-human whose fate can be ignored. Are they really so stupid as not to understand that they are next?
Err, yes.
The prosecution’s line represented a radical departure from their earlier approach which was to claim that Julian Assange is not a journalist and to try and distinguish between his behaviour and that of newspapers. In the first three days of evidence, legal experts had stated that this gloss on the prosecution did not stand up to investigation of the actual charges in the indictment. Experts in journalism also testified that Assange’s relationship with Manning was not materially different from cultivation and encouragement by other journalists of official sources to leak.
By general consent, those first evidence days had gone badly for the prosecution. There was then a timeout for (ahem) suspected Covid among the prosecution team. The approach has now changed and on Tuesday a radically more aggressive approach was adopted by the prosecution asserting the right to prosecute all journalists and all media who publish classified information under the Espionage Act (1917).
The purpose of the earlier approach was plainly to reduce media support for Assange by differentiating him from other journalists. It had become obvious such an approach ran a real risk of failure, if it could be proved that Assange is a journalist, which line was going well for the defence. So now we have “any journalist can be prosecuted for publishing classified information” as the US government line. I strongly suspect that they have decided they do not have to mitigate against media reaction, as the media is paying no attention to this hearing anyway.
I shall now continue my exposition of the questioning of Eric Lewis. I shall not set out as much of this in full detail as dialogue as I did yesterday, but will do so at key points in the summary.
James Lewis QC Returning to the European Court of Human Rights judgement in the case of Babar Ahmad, you state that their finding that solitary confinement is permissible did not take into account more recent studies such as the 2020 Danish study by Wildeman and Andersen. Do you say this study would have reversed the ECHR decision?
Eric Lewis That is impossible to say. I hope that if the ECHR had before it the large body of evidence on solitary confinement available today, the judgement may have been different.
James Lewis QC What are the five limitations to their study which Wildemann and Andersen mention?
Eric Lewis I don’t have it in front of me.
James Lewis QC Why did you not mention the five limitations in your report? They state that their methodology is strictly observational and cannot be used to prove cause and effect.
[The report in effect shows a much higher suicide rate post-incarceration among those who had been subjected to solitary confinement, from a very large sample of ex-prisoners.]
Eric Lewis I could have written hundreds of pages on recent social sciences developments on solitary confinement. This is just one such report.
James Lewis QC You were just fishing about for something, omitting details which counter your opinion.
Eric Lewis There is a huge amount of data, including from the US Bureau of Prisons. You just picked out one caveat of one report.
James Lewis QC Please keep your answers concise. The situation has changed due to the Cunningham Mitigation. Do you know what that is?
Eric Lewis Yes
James Lewis QC Why did you not mention it in your report?
Eric Lewis Because it is not relevant. A number of recommendations were set out, which have not been implemented in practice.
James Lewis QC Gordon Kromberg has produced the Cunningham Mitigation for us. In November 2016, in settlement of an 8th Amendment claim, it was admitted that conditions for mental health treatment in the Florence Colorado ADX are unsatisfactory and a large number of measures were agreed. Do you agree with Mr Kromberg that the Cunningham Mitigation has improved matters.?
Eric Lewis In some ways it has improved matters, in other ways things have gotten worse.
James Lewis QC then proceeded to state in response to Eric Lewis’s written statement on Covid, that Gordon Kromberg affirmed that as of 2 September there was no Covid in the Alexandra Detention Centre where Assange would be kept pre-trial. Eric Lewis countered that levels of Covid in federal prisons in the USA are 18%.
James Lewis QC You stated in the press that the maximum sentence is 340 years when now you state it is only 175 years. You miscalculated didn’t you? You took 20 years per count as the base when it should be 10.
Eric Lewis It was a mistake in an interview.
James Lewis QC You don’t really believe in 175 years maximum sentence, do you? It’s just a soundbite.
Eric Lewis started to answer and James Lewis QC cut him off. Edward Fitzgerald rose and objected that the witness must be allowed to answer. Baraitser agreed.
Eric Lewis The US government has called this one of the biggest cases in history. Espionage convictions frequently attract long sentences. Pompeo has categorised Wikileaks as a hostile intelligence agency. The government asked for 60 years for Chelsea Manning. I considered the charges in relation to the official sentencing guidelines.
James Lewis QC. Gordon Kromberg has testified that only a tiny fraction of all federal defendants attract the maximum sentence. The sentencing guidelines stipulate no unwarranted disparity with similar convictions. Jeffrey Sterling was a CIA agent convicted of selling secrets on Iran to Russia. He had faced a possible maximum sentence of 130 years, but had received only 42 months.
Eric Lewis The prosecution asked for a much longer sentence. In fact that was a very unique case not comparable…
James Lewis QC Why did you not give a realistic estimate and not a soundbite?
[In fact James Lewis’ categorisation of the Jeffrey Sterling case is entirely tendentious and it is hardly a sensible comparator. Sterling was a rare black CIA officer, involved in a long and bitter dispute with his employer over racial discrimination, convicted on purely circumstantial evidence of giving information to an American journalist about a completed CIA operation to leak false Iranian plans to Russia. Sterling was not accused of leaking to Russia. The entire case was very dubious.]
Eric Lewis I followed sentencing guidelines. I gave what I calculated as the statutory maximum, 175 years, and an estimate from my experience of the very lightest sentence he could expect, 20 years. Sterling got well below the guidelines and the judge explained why.
James Lewis QC now ran through a couple more cases, and stated that the longest sentence ever given for unlawful disclosure to the media was 63 months – presumably not counting Chelsea Manning. Eric Lewis replied that the specific charges laid in the Assange indictment relate to disclosure to a foreign power, not to the media, and of information helpful to the enemy. Sentences for the counts Assange was charged on were much higher.
James Lewis QC stated that sentencing was by an independent federal judge who had life tenure, to free them from political influence. There was brief to and fro about the circumstances in which a federal judge might be impeached. The judge assigned the Assange case was Claude Hilton, who had been on the bench since 1985. James Lewis QC challenged Eric Lewis as to whether he thought Claude Hilton was fair, and Eric Lewis replied that Hilton had a reputation as a heavy sentencer.
James Lewis QC then asked Eric Lewis whether he accepted that the US Department of Justice had sentencing principles in place which specifically guarded against unnecessarily long prison sentences. Eric Lewis replied that the USA had the highest percentage of its population in jail of any country in the world.
Counsel for the US Government James Lewis QC then stated he would turn to the First Amendment issue.
James Lewis QC You suggest that the First Amendment precludes this prosecution.
Eric Lewis Yes, There has never been a prosecution of a publisher under the Espionage Act for publication of classified information.
James Lewis QC Are you familiar with the Rosen Case of 2006. This was precisely the same charge as Assange now faces, 793 (g) of the Espionage Act, conspiracy to transmit classified information to those not entitled to receive it. Have you read the case?
Eric Lewis Not in a long while, because ultimately it was not proceeded with.
[James Lewis read through lengthy extracts of the Rosen judgement, which I do not have in front of me and was unable to get down verbatim. What follows is therefore gist not transcript].
James Lewis QC In the Rosen case, it is made plain that the receiver, not just the discloser, is liable to prosecution under the Espionage Act. The judge noted that although the Espionage Act of 1917 had been criticised for vagueness, Congress had never felt the need to clarify it. It also noted that much of the alleged vagueness had been resolved in various judicial interpretations. It noted the fourth circuit had rejected a first amendment defence in the case of Morison.
Eric Lewis Morison is different. He was a leaker not a publisher.
James Lewis QC The Rosen judgement also goes on to state that vagueness does not come into play where there is clear evidence of intent.
Eric Lewis When you consider the 100 year old Espionage Act and that there has never been a prosecution of a publisher, then intent…
James Lewis QC [interrupting] I want to move on from intent to the First Amendment. There are supreme court judgements that make it clear that at times the government’s interest in national security must override the First Amendment.
Eric Lewis In times of imminent danger and relating to immediate and direct damage to the interests of the United States. It is a very high bar.
James Lewis QC The Rosen judgement also notes that the New York Times Pentagon Papers case was about injunction not prosecution. “The right to free speech is not absolute”.
Eric Lewis Of course. The arguments are well rehearsed. Movement of troop ships in time of war, for example; cases of grave and immediate danger. In the Pentagon Papers Ellsberg was, like Assange, accused of putting named US agents at risk. The bar for overriding the First Amendment is set very high.
James Lewis QC [Reading out from a judgement which I think is still the Rosen judgement but it was referred to only by bundle page.] He also notes that serial, continuing disclosure of secrets which harm the national interest cannot be justified. It therefore follows that journalists can be prosecuted. Is that what he says, Mr Lewis?
Eric Lewis Yes, but he is wrong.
James Lewis QC Do you accept that the Pentagon Papers judgement is the most relevant one?
Eric Lewis Yes, but there are others.
James Lewis QC A close reading of the Pentagon Papers judgement shows that the New York Times might have been successfully prosecuted. Three of the Supreme Court judges specifically stated that an Espionage Act prosecution could be pursued for publication.
Eric Lewis They recognised the possibility of a prosecution. They did not say that it would succeed.
James Lewis QC So your analysis that there cannot be a prosecution of a publisher on First Amendment grounds is incorrect.
Eric Lewis gave a lengthy answer to this, but the sound on the videolink had been deteriorating and had in the public gallery become just a series of electronic sounds. The lawyers carried on, so perhaps they could hear, but I know Julian could not because I saw him trying to communicate this to his lawyers through the bulletproof glass screen in front of him. He had difficulty in doing this as he was behind them, and they had their backs to him and eyes fixed on the video screen.
James Lewis QC I challenge you to name one single judgement that states a publisher may never be prosecuted for disclosing classified information?
Eric Lewis gave another long answer that appear to reel off a long list of cases and explain their significance, but again I could hear only a few disjointed words. The sound eventually improved a bit.
Eric Lewis There has been an unbroken line of the practice of non-prosecution of publishers for publishing national defence information. Every single day there are defence, foreign affairs and national security leaks to the press. The press are never prosecuted for publishing them.
James Lewis QC The United States Supreme Court has never held that a journalist cannot be prosecuted for publishing national defence information.
Eric Lewis The Supreme Court has never been faced with that exact question. Because a case has never been brought. But there are closely related cases which indicate the answer.
James Lewis QC Do you accept that a government insider who leaks classified information may be prosecuted?
Eric Lewis Yes.
James Lewis QC Do you accept that a journalist may not aid such a person to break the law?
Eric Lewis No. It is normal journalistic practice to cultivate an official source and encourage them to leak. Seymour Hersh would have to be prosecuted under such an idea.
James Lewis QC Do you accept that a journalist may not have unauthorised access to the White House?
Eric Lewis Yes.
James Lewis then started to quote a judgement on White House access, then appeared to drop it. He then said he was turning to the question of whether this was a political extradition.
James Lewis QC Do you have any qualifications in social science?
Eric Lewis I have a degree in Public International Affairs from the Woodrow Wilson School of International Relations.
James Lewis QC Have you published any peer reviewed publications?
Eric Lewis No.
James Lewis QC You opined in another extradition case, that of Dempsey, that it was based upon political opinion. The High Court of England described your evidence as “pure conjecture”.
Eric Lewis Yes, that was their view. Dempsey was en route to Syria and approached at an airport by FBI agents. He explained to them that he was going to Syria to work with an anti-Assad group. Nothing was done. But by 2016 policy towards Assad had changed and Dempsey was charged. My evidence was about a change of policy, not political opinions.
James Lewis QC Turning to the expert evidence of Prof Feldstein last week, do you agree with his statement that while the Obama administration did not take the decision to prosecute, he did not take the decision not to prosecute. Do you agree?
Eric Lewis No. I believe that is predicated on a fundamental misunderstanding of how the Justice Department works.
James Lewis QC Do you have first-hand knowledge or sources for your opinion?
Eric Lewis No.
James Lewis QC So your information is only from newspapers.
Eric Lewis And TV interviews and statements.
James Lewis QC Statements like those from Matthew Miller who had left the Justice Department two years before he spoke to the Washington Post?
Eric Lewis Yes, but he remained close to Attorney General Eric Holder.
James Lewis QC Do you agree with Gordon Kromberg that prosecuting decisions are taken in line with federal guidelines that preclude political prosecution?
Eric Lewis No. Not under William Barr. The system is now top down political prosecution.
James Lewis QC So you claim the guidelines are not followed?
Eric Lewis I do. So do the 2,600 former federal prosecutors who called for Barr’s resignation and the 1,000 former prosecutors who protested the Roger Stone commutation. Or Judge Gleeson in his reports on political prosecution decisions.
James Lewis QC Do you accuse Gordon Kromberg of bad faith?
Eric Lewis I don’t know him. But I do know there is disclosure of heavy political pressure in this case.
There followed some discussion on Trump’s changing relationship with Wikileaks over the years, and also of the Classified Information Protection Act and whether it hampers the defence in disclosure and in taking instruction from the accused. This was to be discussed in greater detail with the next witness.
Edward Fitzgerald then led the witness in re-examination. He asked Eric Lewis to mention the television interviews he had referred to in noting the political change from Obama to Trump. Eric Lewis cited Sarah Sanders saying “we did something” and contrasting this with Obama’s inaction, and Eric Holder stating that they had decided not to prosecute Assange under the Espionage Act as he was not acting for a foreign power.
Edward Fitzgerald then asked about the pressure put on prosecutors in the Eastern District of Virginia to bring the present prosecution. Eric Lewis referred to the article by Adam Goldman in the New York Times to this effect. Ten days after this article the Justice Department stated it was a priority to prosecute Assange.
Lewis explained that William Barr had made explicit that prosecution was subject to political direction. He subscribed to the Unitary Executive Theory and held that all prosecution decisions were by or on behalf of the President. Barr had set this out in a memo that stated directly that prosecutors were “merely the hand” of the Presidency. This was not theory. This was how the Justice Department was now run. Many federal prosecutors had resigned. Many had refused to touch the Assange prosecution. “Mr Kromberg, as is his right, did not.”
Edward Fitzgerald then noted that James Lewis had queried Eric Lewis’s qualifications to comment on prison conditions. Yet for the prosecution, US Assistant Attorney Gordon Kromberg had submitted voluminous comments on prison conditions. Did Mr Kromberg have academic qualifications in penology as required by James Lewis? Eric Lewis replied that he believed not, and certainly he had no doubt he himself had greatly more practical experience of prison conditions than Mr Kromberg. Mr Kromberg’s exposition of official policy was doubtless correct, but it bore no relation to the actual conditions in jails.
On solitary confinement, Edward Fitzgerald outlined the UN’s Mandela rules, under which 22 hours or more in a cell a day and no significant human contact constitute solitary confinement. Lewis replied that the SAM regime would definitely breach the Mandela rules.
The next witness was Mr Thomas Durkin. He is an attorney practising for 47 years, licensed to appear in the Supreme Court. From 1973–8 he was a US Assistant Attorney and since then has been in private practice. He teaches law at Loyola and has received a lifetime achievement award from the Illinois Association of Criminal Lawyers. He also appeared by videolink.
Edward Fitzgerald asked Mr Durkin about the special problems of cases working with classified materials. Durkin said that the biggest problem is that you cannot discuss classified disclosure material with your client. You can only look at the material on a special computer in a secure location – a SCIF – and have to prepare your material there. Mr Assange will not know what his lawyers have learned, and nor will they be able to ask him what the material relates to or signifies. This is an incredibly difficult hardship in taking instructions and preparing a defence.
Edward Fitzgerald asked Mr Durkin if there is a real chance that Julian Assange will receive an effective rest-of-life jail sentence. Durkin replied that this was a very likely possibility. Looking through the counts and the enhancements that might apply, he would rate the offences at 38, 40 or 43 points on the sentencing scale. That would put the range at 235 months to life, and there were multiple counts that could be sentenced consecutively. Durkin said that based on his extensive experience of national security trials, he would expect a sentence of 30 to 40 years. The government position was that Assange was more to blame than Manning. They had asked for 60 years for Chelsea Manning.
Edward Fitzgerald then asked about the effect of the plea bargaining system. Thomas Durkin replied that an early guilty plea reduced the sentencing score by three points. That could make several years difference in sentence. But much more important was the freedom of the prosecution to reduce the counts charged in exchange for a guilty plea. That could make a massive difference – potentially from 100 years plus to ten years, for example. The system greatly reduced freedom of choice and was a massive disincentive to stand trial. People just could not take the risk. A large majority of Durkin’s clients now took a plea deal.
Mr Durkin agreed with a suggestion from Edward Fitzgerald that a condition of a plea deal for Julian Assange was likely to be that he gave up the names of Wikileaks’ sources.
Edward Fitzgerald asked Mr Durkin whether there had been a political decision by the Trump administration to prosecute Assange. Durkin said there were no new criminal justice considerations that had caused the change in approach. This was most likely a political decision.
Edward Fitzgerald asked Durkin about Gordon Kromberg’s assertion that a Grand Jury was a powerful bulwark against a political prosecution. Durkin replied this was simply untrue. A grand jury virtually never refused to authorise a prosecution. In the whole of the USA, there was generally about one refusal every four or five years.
James Lewis then started cross-examination. He asked if Durkin was saying that Assange would not receive a fair trial in the US, or just that it was difficult? Durkin replied that Julian Assange would not get a fair trial in the USA.
Lewis suggested that the requirement to see classified material in a SCIF was merely an inconvenience. Durkin said it was much more than that. You could not discuss material with your client, which materially limited your understanding of it. James Lewis countered that US Assistant Attorney Kromberg’s affidavit stated that Assange would be able to see some classified material himself. A classified facility would be available for him to meet his attorneys. Durkin said he did not accept this description. He had never seen anything like this happen.
Lewis then said Durkin’s statement was that there will be an unprecedented volume of classified material disclosed in this prosecution. But he could not know that. He had no idea what would be disclosed or what the defence would be, if any. Durkin replied that much could be understood from the extensive indictment and from what happened in the Chelsea Manning case. Lewis repeated Durkin did not know what would happen. Assange might plead guilty.
Lewis suggested the plea bargain system was in essence the same in England, where defendants could get one third off sentence for a guilty plea. Durkin said plea bargaining in the US went far beyond that. The government could put a big offer on the table in terms of reductions of charges and counts.
Lewis then went to the question of a change of policy between the Obama and Trump administrations. He established that Durkin relied on media reports for his view on this. Durkin pointed out that the Washington Post report of 25 November 2013 that the Obama administration would not prosecute, had quoted multiple former and then current Justice Department employees and crucially no denial or counter briefing had ever been forthcoming. It had never been contradicted.
That was the end of Tuesday’s hearing. In conclusion I need to correct something I published yesterday, that there were only three journalists in the video gallery to cover the trial. James Doleman led me to another hidden nest of them and there are about ten in total. The main titles are inexcusably unrepresented, but press agencies are, even if their feed is being little used.
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Given the effort you’ve put in, maybe you should write a book based on this show trial! I see an interesting parallel with an incident in the trial of Jesus where (in John’s account) the pharisees indignantly say to Pilate that they would not have brought Jesus to him if he had not been guilty, pointing to some prior understanding which Pilate appeared to them to be betraying, by insisting pedantically on fairness of procedure. See page 56 of Frank Morison, “Who moved the stone?”
I think a book is an excellent idea!
Mr Murray, I may have missed it, so please excuse me if I have, but whilst Mr Kromberg’s evidence is by way of affidavit, has he, or will he, be giving oral evidence in court?
I am having internet access problems so haven’t been able read all your posts on this in full.
I have had some problems with Mr James Lewis’s frequent mention of Mr Kromberg. He often seems to have dared witnesses even to hint that Mr Kromberg might be acting “in bad faith” or lying. The witnesses have uniformly refused to say that.
I find this odd, as my working assumption is that all officials of the US federal government will lie easily and smoothly whenever they see any advantage in doing so. There is usually no risk whatsoever of punishment for doing so.
If anything that Mr Kromberg has said, and which Mr James Lewis has quoted, turns out not to be true, I would ask what penalty – if any – Mr Kromberg stands to suffer. (Or might he be rewarded?)
Kromberg is a fraud. Literally. Here’s what he is capable of:
“changing a boilerplate immunity order beyond the language spelled out by Congress” and “it’s real scary and not wise for a prosecutor to provide an order to the Court that does not track the explicit language of the statute”. (*
But in the eyes of James Lewis QC he’s a venerable super human being, to be worshipped and adored, and an authoritative judge of any matter that he, Gordon Kromberg, is presented with.
*) https://www.wsj.com/articles/BL-LB-6478
And here:
“… there’s something more important here, and that’s the integrity of the Justice Department” (*
*) https://harpers.org/2009/03/more-prosecutorial-misconduct-in-the-al-arian-case/
If the corp-0-rat media are ever in court, it will be as witnesses for the prosecution.
Yes, Squeeth, I appreciate such evidence will be for the prosecution. I was wanting to know whether Mr Kromberg will be present to be examined by James Lewis QC and cross examined by Edward Fitzgerald QC and Mark Summers QC. And whether the examination will be limited to 30 minutes and unlimited time for cross-examination.
I fear we are at cross purposes, my comment was a general one, about the danger to all reporters (not journalists, they are the lackeys of the boss class); it wasn’t a reply to your question.
PS the purpose of the prosecution in questioning defence witnesses is to wage a war of attrition to get as many vague answers, contradictions ans slip ups as possible for the judges to batten on to as pretexts for delivering the judgement that the state wants. Take note Craig, they’ll be doing it to you soon.
The time constraints imposed by the judge (which resulted in the guillotine references in Day 9) and the refusal to reschedule for various reasons also happen to allow the case to be deliberated upon and decided over a time period which may cover ‘just before’, ‘during’ and ‘after’ the US election – any or all depending on which may be most convenient based on the best predicted outcomes of said election. Coincidence or not?
The Trump administration and his opponent, the Deep State, may have a common interest in preventing an explosive “October Surprise” via Wikileaks so warned off all potential whistleblowers in the lead up to the election by persecuting Assange in spite of the ludicrous legal position it places the US DoJ in, demolishing the sacred 1st Amendment.
Thank you for another excellent report!
Do you know if Priti Patel as had to sign off on a new extradaition request or if they are proceeding under the “old” one?
Thanks in advance.
Of course, not being present in court and relying entirely on your excellent summaries and the live feeds of others like James Doleman and Stephania M etc, I cannot say this with absolute certainty. But there is a sneaking feeling, in my mind at least, that the construction and order of questioning of the prosecution’s leading counsel – leaving aside its belligerence – is actually designed to demolish the prosecution’s case rather than support it. While the result of this hearing may not be in doubt, the impact on the subsequent case for the Appellant’s seems very positive. Lewis can’t have any Russian links, surely?
Fnar!
Well, have a look at how he started today (Wednesday).. continually pulling defeat from the jaws of victory.. long may it last.. maybe he’s having some kind of Damascene moment? Nah, sorry….
“The US government is now saying, completely explicitly, in court, those reporters could and should have gone to jail and that is how we will act in future.”
Simply put, this is the act of a criminal Establishment seeking to ensure its crimes remain covered up and that the very act of revealing its criminal activity is itself deemed an illegal/criminal act.
That is the barely believable state of affairs we have come to.
JA is targeted, as was inevitable, as he must have known, for being the most effective journalist (perhaps ever) when it comes to revealing government/Establishment/corporate crime.
Surely what we are witnessing is the playing out of a court case every bit as historically important as that of the above mentioned Pentagon Papers and of the Watergate Tapes, and one that is being ‘criminally’ neglected by the craven mainstream media which is doing a great disservice to this country.
Just where is the opposition?
Oh, I forgot, that would be Keir Starmer wouldn’t it.
Craig,
Your work is enormously important and, I would suggest, will be of historic value in light of the near-total media blackout on this show trial. I hope that the many comments here testifying to its significance and to our appreciation, as readers, for your dedicated work, provides you with strength and solidarity. My resources are limited but will, like others, be making a donation to support your work and express my ongoing gratitude for the sacrifices it must entail.
One more thing. In the bracketed aside before your notes on the pivot to First Amendment issues you say that what follows is gist not transcript. As you mention in yesterday’s report, you are not allowed to publish transcripts of these (public!) hearings so perhaps it would be better to amend that to reflect the fact that your work is not verbatim at any time. I hope such measures are not necessary but we all know that is almost certainly not the case!
One more thing. Just as I am immensely grateful, not to mention filled with respect, for the quality and clarity of your reporting under what must be extremely challenging circumstances for you personally, I am also enormously impressed by the fortitude and courage of those expert witnesses called to testify for the defence and endure exceptionally hostile cross-questioning by the Counsel for the US. This is, as we all know too well, a hearing of historic importance. They are being attacked on their expertise, credibility, knowledge, insight, standing and integrity. The attacks come thick and fast from a QC who you have made clear has long since abandoned customary modes of behaviour in such circumstances. They are having to fend off attacks while also having prepared for a different raft of indictments. And they are doing so in the knowledge that the consequences of falling down will be both historically significant and potentially fatal to thie century’s most important journalist/publisher.
That they can not just function but successfully expose the inconsistencies, hypocrisies, mistakes, lies and distortions of the prosecution is not just praiseworthy, but on a purely human level almost awesome in its embodiment of personal strength and intellectual vigour!
Edward Snowden said this would happen on his pod cast interview yesterday with Joe Rogan.
https://www.youtube.com/watch?v=_Rl82OQDoOc
Tempest teacup
Aggression is now the hallmark of Trump’s politics. Look how he has attacked China this year. He’s a property tycoon. In a time of cascading real estate values. He must be so glad to have found a niche for his aggression when the south sea bubble of real estate is about to burst.
For James Lewis QC to parrot Trump’s property tycoon manner has something of the Simpsons quality, a dark humour that under the surface recognises what a hero Julian Assange really is.
Like all politics nowadays, there is a fake narrative, a “fuck the EU” arrogance by which the US seeks to impose its will on an unwilling world.
Fuck the Law message is coming through loud and clear IN A COURT OF LAW. Haven’t we seen that somewhere before recently in Edinburgh?
Hear, hear on all your beautifully-articulated points, TempestTeacup!
Deepest admiration and respect for Mr. Murray and all JA’s defense witnesses – persons of courage and integrity, indeed.
It wasn’t transcripts Craig mentioned yesterday, it was Witness Statements. The first four are online, but none since then.
And it’s about time we got to see more of them. The judge has given the fact that the Witness Statements are public documents as an excuse for the very curtailed introductory presentation from Defense witnesses, so one would think there would be copies for all witnesses easily accessible online – at least once the witness has appeared. Frankly I’m champing at the bit for them. (I commented further yesterday.)
I think this was the bracketed aside in the Day 9 report:
“(I am told I am not currently allowed to publish the defence statements or links to them. I shall try to clarify this tomorrow.)”
Hi Craig, Thankyou for your commentary. I will be Updating the Free Julian Assange petition’s 518,000 signatory email database with “Your Man in the Public Gallery” detail.
Cheers
Phillip Adams
Petitioner
Epstein didn’t kill himself. I hope we’re not saying the same about Assange in due course.
Thanks for this wonderful detailed reporting, which puts all the main news outlets to shame.
But where are the court reporters for the BBC, ITV, Sky and the newspapers? No doubt being redeployed to keep tabs on the Covid police efforts to comply with the Rule of 6, which is all they seem to care about just now.
Excellent reporting Craig. I dread to think where this trial will end up, but we will at least have a very clear idea of how we got there. Again, a huge thank you!
BTW – I see that Foreign Secretary Dominic Raab is currently in Washington. Presumably ordered there to receive his latest instructions and offer up more of the UK for sale to the USA.
Are they really so stupid as not to understand that they are next?
No they are not. They don’t care because they will never report anything that shouldn’t be reported. That’s why this judgement will make no difference to their business. Their business is not real journalism, but pseudo journalism. NY Times, WaPo etc had sold out a long time ago. This will only affect any new outlet that geniuinely want to “out” governments.
Which is why Craig is worried and NY Times/Graun etc aren’t.
Spot on, I think that’s how Craig himself sees it
Why are “the great liberal media” ignoring the serious threat that JA’s prosecution could pose to them?
I suspect you had it right in what you said in your recent blog entitled “Media Freedom?”
Establishment media have no fears because they intend to stay shoulder-to-shoulder with elites in targeting any dissenters to oligarchical rule and hawkish foreign policy. We see that not just with the Guardian and BBC in Britain but also with corporate empire-liberal media in America..
They have been eager to throw JA under the bus in order to signal their long-term intent — “we will do this to anybody who.puts their head above the parapet and challenges rule by the richest or DC’s wars and overseas coups.”
It is time to stop fearing that JA’s prosecution would have serious repercussions for establishment propagandists/ attack dogs. They themselves have no such fears.
‘Why are “the great liberal media” ignoring the serious threat that JA’s prosecution could pose to them?’
The answer to this, and most other important questions at the moment, is simply: “Money. And if that doesn’t work, threats. And if threats don’t work, actual murder”.
Peter Hitchens has been his usual principled self on the topic. But of course he’s not a liberal. Here he is on the Mike Graham show 17 minutes in.
https://www.youtube.com/watch?v=lrUB3Va_EOI
I want to make sure you know who Judge Hilton actually is. He presided over this one back in 2013. https://www.wired.com/2013/09/lavabit-appeal/ He must be MR. contempt because he also jailed Chelsea manning. https://www.westernjournal.com/ap-chelsea-manning-jailed-for-refusing-to-testify-on-wikileaks/
The locations where the government’s precious, precious secrets can be viewed, rendered here as “SCIP”, should, I’m fairly sure, be SCIF (say “skiff”) for “sensitive (or secure) compartmented information facility”.
Though maybe this is some variation on that, and Craig heard it correctly.
Only mentioning it because it’s something people might want to look up.
You might be right. Audio on the videolink was dreadful.
“SCIF” was the term that was used when I was in naval signals intelligence.
Interesting that James Lewis QC brought up the case of Jeffery Sterling in a bid to downplay the viciousness of the American carceral system. This is what Sterling tweeted yesterday:
A US prison is not the holiday the #Assange prosecution makes it out to be. My sentence was 42 months and I could have died because of conditions and horrible medical care. #DontExtraditeAssange #FreeAssangeNOW #EspionageAct
https://twitter.com/S_UnwantedSpy/status/1305834982804541440
I don’t suppose Mr James Lewis would be in the least impressed by Mr Sterling’s personal experiences.
After all, I don’t suppose Mr Sterling has a PhD in a relevant academic field. Or, for that matter, any peer-reviewed papers.
“The First Amendment is celebrated across the political divide”
Yes, as English Law and Liberal Values are celebrated here.
Just hot air.
It’s not, it has been very useful and up to now effective in ensuring some protection for the press and free speech. Which is why they are spending so much time and effort in arguing this case is somehow not about the freedoms under the amendment. It is also why the Obama administration didn’t press charges, which is another central point in this case.
Is Daniel Ellsberg on the witness list? If he is, then I don’t mind waiting, but somebody in this proceeding needs to point out the vast changes in how Espionage Act cases are dealt with in the U.S. that have occurred in 49 years.
For instance, I don’t think Ellsberg ever saw the inside of a jail cell before or during his trial, despite having actively evaded the authorities before eventually surrendering himself – leaving him free to work with his lawyers and talk to the public. I also believe any prison term, if he had actually been convicted, would in that era have been far less than what Assange can expect, despite being accused of violating the same statute.
He is. I must say the defence have a stellar lineup of witnesses, all of whom so far have trounced Lewis, simply because their in-depth knowledge vastly outweighs his talking points, presumably supplied by pound shop lawyers like Pompeo and the rest of the mob. Notable how Lewis hasn’t made a single charge stick, whether on the political nature of the charges, the first amendment, journalism, or the impossibility of a fair trial and the grotesquely inhumane sentencing policies. He has resorted to cheap rhetoric such as ‘how much are you being paid’, ‘you are not an expert’ and most ridiculously ‘if you cannot quote me par 5, sub clause 7 of one particular page, out of thousands in attached material, then you are not an expert, while I just happen to have it here’ – he got in a right strop about E Lewis supposedly reading from a piece of paper, which turned out to be a valid document. In other words a memory test is how low he is going in attempting to discredit them, but is looking more and more ridiculous and desperate. Also, very testy about the fact that they give detailed and knowledgable answers which he cannot rebut, and claims they just answer yes or no – even Baraitser thought that was absurd.
And so, in answer to your question, I am sure they will be on top of the espionage charge – there have already been some clarifications on its validity in this case, which make it questionable it if applies. To get round the First Amendment defence, they have dragged up the hacking charge (very thin evidence) and now a load of espionage charges, of dubious relevance. What seems to be emerging as a theme in this trial is how desperate the prosecution is in trying to apply dubious charges on little evidence, and of no historic merit in this case. The other point is that Assange is being treated as a terrorist in the penal system, with absolutely no evidence or supporting claims to make this necessary or just. It is very unfortunate that is just a hearing, and not a full blown trial, because it is evident how contorted, makeshift and grasping the charges and evidence are. The danger, and likelihood is that Baraitser will simply say, well the justice of these charges can be adjudicated in the US courts because the UK trusts them. That’s all she has to do, even if she agrees that the case is so flimsy and political that it should be thrown out.
Good to hear about Ellsberg. He is one valuable person to still have around; long may he live.
As for this being just a hearing as opposed to a full trial, as I allude to in the comment I just made below, Obama and Trump-era leak trials have made it clear that the prosecution will seek to keep any evidence of political context from the jury’s ears, and the court will side with them. Once this is in a U.S. courtroom, the fiction that this is a “just the facts ma’am” criminal case devoid of broader political and constitutional import will be rigorously maintained, although the First Amendment issues will certainly be argued on appeal if it gets that far.
In that sense, Assange is getting a fuller airing of his case here than he will during his actual trial.
I think that is why one of the earlier witnesses said the Grand Jury takes its direction from the authorities, and thus is not independent and has almost never been known to dissent from the charges. This was part of the argument about whether Assange would get a fair trial. As ever, the witnesses pointed out Lewis’ false and naive assumptions.
Ellsberg is on the stand now:
“Ellsberg notes he was charged under the Espionage Act in 1971 and then charges were dismissed with prejudice due to governmental misconduct
Ellsberg on WikiLeaks revelations: “Like the Pentagon Papers, had the capability of informing the public that they had been seriously misled about the nature of the war, the progress of the war, and the likelihood that it would end successfully, if at all.”
Strong public interest defence, and freedom/responsibility to expose government ‘misconduct’
You can follow it in various places, this is one:
https://twitter.com/kgosztola/status/1306151387269664774?s=20
True enough about grand juries. They also have the superficially paradoxical quality of letting prosecutors *not* get an indictment when they don’t really want one but need to be seen to be seeking one – I’m not sure that manifests at the Federal level, but it’s part of the game on the state level, for instance in police excessive-force cases.
Another admirable thing about Manning is that on her most recent trip through the wringer, she made clear she was objecting, not only to what was being done to Assange, but to the whole grand jury farce.
But to clarify: the really unacceptable thing is how the case will be circumscribed even in front of the trial jury, which is the phase at which supposedly a full defense can be made.
Ellsberg: “I did not get a fair trial despite a very intelligent and conscientious judge.” No one since his case has had a fair trial.
“Julian Assange could not get a remotely fair trial under those charges in the United States.”
Defense revisited Good Ellsberg, Bad Assange narrative.
Ellsberg: With Manning and Assange, he found his name mentioned all the time as very good person. Used me as foil against new revelations, which were supposedly different. Misleading on motive and effect. Totally disagree.
There was great disagreement over whether Ellsberg could comment on the harm WikiLeaks did not cause even though he had been asked about the harm the government claims in their affidavits. Ellsberg eventually was able to generically offer testimony.
Ellsberg: When US government said WikiLeaks there would be blood on their hands, he was willing to believe that. Surprised to discover there was no evidence.
This is why it is so valuable to have Ellsberg around in person. They’re always trying to play the “Good Ellsberg; bad [conscientious person not from the distant past]” card, and no one trumps it (sorry) as convincingly as the man himself.
“The other point is that Assange is being treated as a terrorist in the penal system…”
The operational definition of terrorism nowadays is “anything that reveals the crimes of those in power”.
Yes, because, if we knew them all, we would be terrified.
Yes. Rather than “the Rolls-Royce of lawyers”, I think that Mr Lewis would better be described as “the Chieftain tank of lawyers”.
Something I would have expected to hear more about by now is the matter of any alleged harm to individuals or national security caused by Manning’s leaks. On one of the previous days, as I read in Craig’s reporting, the prosecution did touch on this in a way suggesting such harm had occurred, but it was dropped, and not disputed by the defense. Perhaps because these witnesses don’t claim expertise in that area?
I mention it because I think this is a strong area for the defense: despite the magnitude and significance of the leaks, no one in U.S. officialdom in the aftermath of publication (to my knowledge) seriously tried to maintain that the War Diaries and State Dept. cables directly resulted in harm to U.S. troops or military operations, or diplomats, or intelligence sources, or anybody.
You could find quotes from this or that member of Congress saying how bad and dangerous the leaks were in a general way, but my recollection from the time is that there was no official assertion of such harm, and in fact there were (I believe) a few statements by military or administration officials in response to media questioning that affirmatively confirmed that such concrete harm had *not* been observed. I also don’t believe the prosecution introduced such evidence in Manning’s trial. (Contrast Snowden’s leaks, where there was an obvious freakout about the impact of what had gotten out on surveillance operations, at least short term.)
Evidence of lack of resulting harm will almost certainly be barred to Assange’s defense in any eventual trial in U.S. federal court (until, maybe, the sentencing hearing post-conviction), making this an extremely opportune time to bring it out to show the political motivation and general iniquitousness of the extradition request.
Most (if not all) of the people alleged to be in danger because of Wikileaks’ revelations were in danger because they were engaged in criminal activity.
Namely the carrying out of unprovoked aggressive war – the supreme international crime.
Any foreign person – especially military – who is or was in any foreign country without the permission of the country’s government, is a criminal. If such persons are or were engaged in waging war against the people and government of that nation, they are war criminals. As such, they can hardly complain if a publisher reveals their illegal acts and, perhaps as a result, they are harmed.
Their remedy is simply: do not commit crimes.
A corollary that strongly suggests itself is that no one should ever contemplate joining the armed forces of the USA, the UK, or any NATO member nation.
As those countries’ governments have a long and consistent record of launching illegal unprovoked wars of aggression, the chanes are that any random member of their armed forces will at some point be ordered to commit war crimes. To refuse while a serving member of the armed forces might incur very severe penalties.
Far better to have nothing to do with the whole dirty business.
It is not true that all military personnel fighting for a state engaged in an illegal war of aggression are themselves criminally liable for its illegality.
Be that as it may, I doubt Assange’s defense will choose the route of saying anybody Wikileaks hurt just got what they deserved.
The witnesses who knew and worked with him have been testifying that Assange went to great lengths to redact any names which would be vulnerable. He even asked the US government to co-operate in this endeavour.
“He even asked the US government to co-operate in this endeavour”.
And, if memory serves, the US government refused.
If you read my comment carefully, David, you will see that I did not assert what you deny. I said that “the chances are that any random member of their armed forces will at some point be ordered to commit war crimes”.
When you bear in mind the immense ramifications of waging and supplying a war overseas, it seems likely that a very large number of service members might be open to war crime charges. For instance, someone sending ammunition or even food to the fighting units.
“ Any foreign person – especially military – who is or was in any foreign country without the permission of the country’s government, is a criminal.”, said you. My response was to that.
Whatever. You seem like a person who needs to get the last word in. You’re welcome to it.
Durkin said plea bargaining in the US went far beyond that. The government could put a big offer on the table in terms of reductions of charges and counts.
Here comes the dirtiest laundry of the US DOJ and the law allowing this official lifetime bullying.
See, for instance, “Three Felonies A Day: How the Feds Target the Innocent” by Harvey Silverglate.
‘The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to “white collar criminals,” state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance’.
https://www.amazon.co.uk/Three-Felonies-Day-Target-Innocent/dp/1594035229/ref=sr_1_1?dchild=1&qid=1600279617&refinements=p_27%3AHarvey+Silverglate&s=books&sr=1-1&text=Harvey+Silverglate
The book also contains a lot of detailed and specific information about the systematic use of plea bargaining. To go after a senior executive or government official, prosecutors stalk numerous junior employees until they manage to catch one of them committing some crime. Then they threaten lifelong imprisonment – unless maybe… The junior employee informs on his boss, and usually walks free. Then they bring in the boss, and offer him a plea bargain…
Hey, what if the following happens: Baraitser becomes so p***ed off at bullying by Lewis (or UK/US officials) that she decides to find the extradition request invalid because politically motivated and sets Assange free immediately, leaving the Americans totally frustrated, Lewis informed that he *won’t* be visiting the Oval Office (or the Golden Apartment) at all, and so even more purple. Mwah hah hah hah hah!
There have been only two occasions when an extradition request was refused:
Pinochet was going to be extradited to Spain, but Jack Straw overruled it on the grounds of ill health. He was in a wheelchair. When he returned to Chile, the first thing he did was rise from his wheelchair.
The hacker, Gary MacKinnon was going to be extradited to the US, but Teresa May intervened, stating that on account of his mental health issues and Asperger’s syndrome, there was a real chance of him taking his own life, depressed and isolated from his family. She said he could be tried in Britain. The DPP at the time, one Keir Starmer, declined on the grounds that the evidence was in the USA (ie there was no appetite for prosecuting a man who said he hacked the US military to find evidence of UFO’s)
So both cases overruled on grounds of health, which would also apply to Assange, given what we have heard about the astonishing cruelty of the system there, and the impossibility of a fair trial. However, it is notable that it was home secretaries who intervened. Do you really think such a lackey and birdbrain like Patel would even consider it? So it rests with the courts, and maybe appeals. It will be interesting to see if Assange’s defence makes a strong case on health grounds.
Extradition Select Committee received evidence from the Home Office that between 1 January 2004 and 31 January 2014, 14 US extradition requests had been refused by the UK and, during this period, the US did not refuse a single UK extradition request. On 23 January 2020, the Minister for Crime, Policing and the Fire Service confirmed that this remained the position.
I didn’t know that. Do we know on what grounds they were refused?
The U.K. probably could get the U.S. to guarantee a certain level of decent treatment (no solitary, SAMs, nor supermax) on the basis of Assange’s ill-health if they gave a crap. Of course, if they were in such a crap-giving temper, they wouldn’t be grinding him down in Belmarsh themselves.
Evaluations of potential Assange judge Claude Hilton: http://www.therobingroom.com/Judge.aspx?ID=842
I don’t know if it was mentioned in court, but Thomas Durkin is a sitting judge on the 7th Circuit of Northern Illinois, an important circuit court that includes Chicago. He is also a Republican (a vanishing species in Illinois), and a known Republican financial contributor, at least to Illinois politicians. He also worked for many years for Mayer Brown, a major white shoe international law firm. In other words, having a man of his background testify on behalf of Assange is a really big deal. It also means he knows exactly how trials and sentencing work, as well as plea deals.
Thank you, Craig.
This is like reading A Tale of Two Cities, if such a tale were contemporary and stranger-than-fiction fact.
I hate to admit that after following and in a small way supporting Craig financially, I am only now registering as a contributor. Forgive me Craig.
While reading the comments on Day 10, I suddenly wondered if it wouldn`t be possible to initiate ( I`m afraid my son is the Techy in the family), some form of Crowd-Funding for Craig, considering his own case that is looming on the horizon.
Any thoughts?
Saffa,
‘Crowd funding’ – excellent idea. Set your son the task and on with it.
It is practical, necessary and I believe – feasible.
Greetings Courtenay,
will do.
Stay safe
Are they really so stupid as not to understand that they are next?
Err, yes.
———
The corporate media aren’t concerned because they don’t see their role like that anymore. That ‘golden era’ of fearless, independent investigative journalism and the newspaper ‘classified documents leak exposé have past. The Snowden revelations probably signalled the last hurrah and the ‘free press’ boundaries the intel agencies previously respected have been breached.
Corporate media types have bought into the uncorroborated intelligence pushed narrative that there are thousands of foreign sponsored ‘bad actors’ online all working 24/7 to undermine western democracy and they’ve accepted the idea their(MSM) role is to counter this great threat by parroting press releases, lest risk furthering a loss of trust in western institutions. Look at the controlled, neutered guardian.
In reality, the internet has merely given voice to domestic dissent that always existed: Greenham Common; Poll tax riots; opposition to the Falklands war and opposition to the Iraq invasion (2m marching against) – today, the MSM editors would be told similar protests were all Kremlin sponsored, and worse, they’d unquestioningly believe it. As if opposition and dissent can’t emerge spontaneously.
Intel agencies have the whole game sewn up: journalist plants embedded in the MSM forming an ‘early warning’ system and a whisper in a corporate or proprietorial ear to prevent publication if needed. The Scott Trust was supposed to protect fearless ‘truth to power’ investigative reporting, but Kath Viner would almost certainly reject the Snowden stuff if presented with similar today. The intimidatory legal action against bloggers and against Assange aimed at gagging them is the final piece of this dark, controlling puzzle.
Kath Viner is an “editor plant”.
Goose
The key here is the corporatisation of the majority of the media. MSM are now part of the military industrial complex and with direct link to the secret service. For those worrying about the insidious fascism it is already here only more selective and subtle than Mk1.
Goose and SA, spot on – “the insidious fascism it is already here ”
>>Are they really so stupid as not to understand that they are next?
In theory they could be next, but in practice they are not bothered, they have nothing to worry about for reasons aptly described by Goose and SA.
Consolidation has systematically destroyed media freedom and independence. MegaCorps are a complex web of companies/interests stretching from media ownership through to to defence sector with no clear corporate demarcations. Media ownership consolidation and the risk averse, fat salaried besuited boards of these corporate giants have made risk aversion -> censorship , far more embedded and far harder to challenge. Potentially controversial investigations are vetoed before they get off the ground most of the time.
The editors and journos are handpicked to stay ‘on message’, not that they’d want to criticise their bosses anyway. Quite why people assumed the media would just ‘stay free’ and they’d be told the truth, idk? It’s like the assumption that political leaders emerge naturally and aren’t handpicked and groomed to serve a purpose by shadowy individuals.
Why assume innate goodness will always prevail? People need to be more cynical about everything.
Could the fate of Julian Assange depend on the Internal Market Bill? Here’s a headline I read earlier:
“Dominic Raab lobbies US leaders not to block trade deal over Brexit Bill which breaks international law”
Could be ‘Dominic Raab tells US leaders that if they don’t back the UK, then they won’t deliver Julian Assange’
Just a thought that crossed my mind.
The main critics of the IMB are the Democrats, worried about its effects on the N. Ireland peace process. They currently control Congress and likely will after November, Pelosi is predicting a “double digit” gain in House seats in November and Senate gains.
So quite who Raab’s talking to, idk?
Lol, Mist001. One of your better ‘thoughts’.
Still better than yours though. Mine show imagination, yours show rote.
Got to admit @Mist001 the idea of Raab ‘threatening’ the Americans is pretty amusing.
Raab would lay face down in a puddle for the Americans to walk over him. Look how his senior Foreign Office official texted US spy Anne Sacoolas telling her to leave the UK “on the next flight out” after she killed Harry Dunn, while Raab told the family a completely different story.
Trump is unpredictable, even for the US establishment, Biden is not: just watch “Riding the Dragon” 41 min. docu : https://www.youtube.com/watch?v=JRmlcEBAiIs&pp=QAA%3D
Biden is merely predictably unpredictable.