Your Man in the Public Gallery: Assange Hearing Day 12 108

A less dramatic day, but marked by a brazen and persistent display of this US Government’s insistence that it has the right to prosecute any journalist and publication, anywhere in the world, for publication of US classified information. This explicitly underlay the entire line of questioning in the afternoon session.

The morning opened with Professor John Sloboda of Iraq Body Count. He is a Professor of Psychology and musicologist who founded Iraq Body Count together with Damit Hardagan, and was speaking to a joint statement by both of them.

Professor Sloboda stated that Iraq Body Count attempted to build a database of civilian deaths in Iraq based on compilation of credible published material. Their work had been recognised by the UN, EU and the Chilcot Inquiry. He stated that protection of the civilian population was the duty of parties at war or in occupation, and targeting of civilians was a war crime.

Wikileaks’ publication of the Iraqi War Logs had been the biggest single accession of material to the Iraq Body Count and added 15,000 more civilian deaths, plus provided extra detail on many deaths which were already recorded. The logs or Significant Activity Reports were daily patrol records, which recorded not only actions and consequent deaths the patrols were involved in, but also deaths which they came across.

After the publication of the Afghan war Logs, Iraq Body Count (IBC) had approached Wikileaks to be involved in the publication of the Iraq equivalent material. They thought they had accumulated a particular expertise which would be helpful. Julian Assange had been enthusiastic and had invited them to join the media consortium involved in handling the material.

There were 400,000 documents in the Iraq war logs. Assange had made very plain that great weight must be placed on document security and with careful redaction to prevent, in particular, names from being revealed which could identify individuals who might come to harm. It was however impossible to redact that volume of documents by hand. So Wikileaks had sought help in developing software that would help. IBC’s Hamit Dardagan had devised the software which solved the problem.

Essentially, this stripped the documents of any word not in the English dictionary. Thus arabic names were removed, for example. In addition other potential identifiers such as occupations were removed. A few things like key acronyms were added to the dictionary. The software was developed and tested on sample batches of telegrams until it worked well. Julian Assange was determined redaction should be effective and resisted pressure from media partners to speed up the process. Assange always meticulously insisted on redaction. On balance, they over-redacted for caution. Sloboda could only speak on the Iraq War Logs, but these were published by Wikileaks in a highly redacted form which was wholly appropriate.

Joel Smith then stood up to cross-examine for the US Government. I am sure Mr Smith is a lovely man. But sadly his looks are against him. You would certainly not enter an alleyway if he were anywhere nearby. The first time I saw him I presumed he was heading for the dock in court 11.

As is the standard prosecution methodology in this hearing, Mr Smith set out to trash the reputation of the witness. [I found this rather ironic, as Iraq Body Count has been rather good for the US Government. The idea that in the chaos of war every civilian death is reported somewhere in local media is obviously nonsense. Each time the Americans flattened Fallujah and everyone in it, there was not some little journalist writing up the names of the thousands of dead on a miraculously surviving broadband connection. Iraq Body Count is a good verifiable minimum number of civilian deaths, but no more, and its grandiose claims have led it to be used as propaganda for the “war wasn’t that bad” brigade. My own view is that you can usefully add a zero to their figures. But I digress.]

Smith established that Sloboda’s qualifications are in psychology and musicology, that he had no expertise in military intelligence, classification and declassification of documents or protection of intelligence sources. Smith also established that Sloboda did not hold a US security clearance (and thus was in illegal possession of the information from the viewpoint of the US government). Sloboda had been given full access to all 400,000 Iraq War Logs shortly after his initial meeting with Assange. They had signed a non-disclosure agreement with the International Committee of Investigative Journalists. Four people at IBC had access. There was no formal vetting process.

To give you an idea of this cross-examination:

Smith Are you aware of jigsaw identification?
Sloboda It is the process of providing pieces of information which can be added together to discover an identity.
Smith Were you aware of this risk in publishing?
Sloboda We were. As I have said, we redacted not just non-English words but occupations and other such words that might serve as a clue.
Smith When did you first speak to Julian Assange?
Sloboda About July 2010.
Smith The Afghan War logs were published in July 2010. How long after that did you meet Assange?
Sloboda Weeks.

Smith You talk of a responsible way of publishing. That would include not naming US informants?
Sloboda Yes.
Smith Your website attributes killings to different groups and factions within the state as well as some outside influences. That would indicate varied and multiple sources of danger to any US collaborators named in the documents.
Sloboda Yes.
Smith Your statement spoke of a steep learning curve from the Afghan war logs that had to be applied to the Iraq war logs. What does that mean?
Sloboda It means Wikileaks felt that mistakes were made in publishing the Afghan war logs that should not be repeated with the Iraq war logs.
Smith Those mistakes involved publication of names of sources, didn’t they?
Sloboda Possibly, yes. Or no. I don’t know. I had no involvement with the Afghan War logs.
Smith You were told there was time pressure to publish?
Sloboda Yes, I was told by Julian he was put under time pressure and I picked it up from other media partners.
Smith And it was IBC who came up with the software solution, not Assange?
Sloboda Yes.
Smith How long did it take to develop the software?
Sloboda A matter of weeks. It was designed and tested then refined and tested again and again. It was not ready by the original proposed publication date of the Iraq war logs, which is why the date was put back.
Smith Redaction then would remove all non-English words. But it would still leave vital clues to identities, like professions? They had to be edited by hand?
Sloboda No. I already said that professions were taken out. The software was written to do that.
Smith It would leave in buildings?
Sloboda No, other words like mosque were specifically removed by the software.
Smith But names which are also English words would be left in. Like Summers, for example.
Sloboda I don’t think there are any Iraqi names which are also English words.
Smith Dates, times, places?
Sloboda I don’t know.
Smith Street names?
Sloboda I don’t know.
[Sloboda was obviously disconcerted by Smith’s quickfire technique and had been rattled into firing back equally speedy and short answers. If you think about it a moment, Iraqi street names are generally not English words.]
Smith Vehicles?
Sloboda I don’t know.
Smith You said at a press conference that you had “merely scratched the surface” in looking at the 400,000 documents.
Sloboda Yes.
Smith You testified that Julian Assange shared your view that the Iraqi war logs should be published responsibly. But in a 2010 recorded interview at the Frontline Club, Mr Assange called it regrettable that informants were at risk, but said Wikileaks only had to avoid potential for unjust retribution; and those that had engaged in traitorous behaviour or had sold information ran their own risk. Can you comment?
Sloboda No. He never said anything like this to me.
Smith He never said he found the process of redaction disturbing?
Sloboda No, on the contrary. He said nothing at all like that to me. We had a complete meeting of minds on the importance of protection of individuals.
Smith Not all the logs related to civilian deaths?
Sloboda No. The logs put deaths in four categories. Civilian, host nation (Iraqi forces and police), friendly nation (coalition forces) and enemy. The logs did not always detail the actions in which deaths occurred. Sometimes the patrols were the cause, sometimes they detailed what they came across. We moved police deaths from the host nation to the civilian category.

[One of the problems I personally have with IBC’s approach is that they accepted US forces’ massive over-description of the dead as “hostile”. Obviously when US forces killed someone they had an incentive to list them as “hostile” and not “civilian”.]

Smith Are you aware that when the Iraq Significant Activity Reports (war logs) were released online in October 2010, they did in fact contain unredacted names of co-operating individuals?
Sloboda No, I am not aware of that.
Smith now read an affidavit from a new player [Dwyer?] which stated that the publication of the SAR’s put co-operating individuals in grave danger. Dwyer purported to reference two documents which contained names. Dwyer also stated that “military and diplomatic experts” confirmed individuals had been put in grave danger.
Smith How do you explain that?
Sloboda I have no knowledge. It’s just an assertion. I haven’t seen the documents referred to.
Smith Might this all be because Mr Assange “took a cavalier attitude to redaction”?
Sloboda No, definitely not. I saw the opposite.
Smith So why did it happen?
Sloboda I don’t know if it did happen. I haven’t seen the documents referred.

That ended Professor Sloboda’s evidence. He was not re-examined by the defence.

I have no idea who “Dwyer” – name as heard – is or what evidential value his affidavit might hold. It is a constant tactic of the prosecution to enter highly dubious information into the record by putting it to witnesses who have not heard of it. The context would suggest that “Dwyer” is a US government official. Given that he claimed to be quoting two documents he was alleging Wikileaks had published online, it is also not clear to me why those published documents were not produced to the court and to Professor Sloboda.

We now come to the afternoon session. I have a difficulty here. The next witness was Carey Shenkman, an academic lawyer in New York who has written a book on the history of the Espionage Act of 1917 and its use against journalists. Now, partly because Shenkman was a lawyer being examined by lawyers, at times his evidence included lots of case names being thrown around, the significance of which was not entirely clear to the layman. I often could not catch the names of the cases. Even if I produced a full transcript, large chunks of it would be impenetrable to those from a non-legal background – including me – without a week to research it. So if this next reporting is briefer and less satisfactory than usual, it is not the fault of Carey Shenkman.

This evidence was nonetheless extremely important because of the clear intent shown by the US government in cross examination to now interpret the Espionage Act in a manner that will enable them to prosecute journalists wholesale.

Shenkman began his evidence by explaining that the 1917 Espionage Act under which Assange was charged dates from the most repressive period in US history, when Woodrow Wilson had taken the US into the First World War against massive public opposition. It had been used to imprison those who campaigned against the war, particularly labour leaders. Wilson himself had characterised it as “the firm hand of stern repression”. Its drafting was extraordinarily broad and it was on its surface a weapon of political persecution.

The Pentagon Papers case had prompted Edgar and Schmidt to write a famous analysis of the Espionage Act published in the Colombia Law Review in 1973. It concluded that there was incredible confusion about the meaning and scope of the law and capacity of the government to use it. It gave enormous prosecutorial discretion on who to prosecute and depended on prosecutors behaving wisely and with restraint. There was no limit on strict liability. The third or fifth receiver in the chain of publication of classified information could be prosecuted, not just the journalist or publisher but the person who sells or even buys or reads the newspaper.

Shenkman went through three historic cases of potential criminal prosecution of media under the Espionage Act. All had involved direct Presidential interference and the active instigation of the Attorney General. All had been abandoned before the Grand Jury stage because the Justice Department had opposed proceeding. Their primary concern had always been how to distinguish media outlets. If you prosecuted one, you had to prosecute them all.

[An aside for my regular readers – that is a notion of fairness entirely absent from James Wolffe, Alex Prentice and the Crown Office in Scotland.]

The default position had become that the Espionage Act was used against the whistleblower but not against the publisher or journalist, even when the whistleblower had worked closely with the journalist. Obama had launched the largest ever campaign of prosecution of whistleblowers under the Espionage Act. He had not prosecuted any journalist for publishing the information they leaked.

Claire Dobbin then rose to cross-examine on behalf of the US Government, which evidently is not short of a penny or two to spend on multiple counsel. Mrs Dobbin looks a pleasant and unthreatening individual. It was therefore surprising that when she spoke, out boomed a voice that you would imagine as emanating from the offspring of Ian Paisley and Arlene Foster. This impression was of course reinforced by her going on to advocate for harsh measures of repression.

Ms Dobbin started by stating that Mr Shenkman had worked for Julian Assange. Shenkman clarified that he had worked in the firm of the great lawyer Michael Ratner, who represented Mr Assange. But that firm had been dissolved on Mr Ratner’s death in 2016 and Shenkman now worked on his own behalf. This all had no bearing on the history and use of the Espionage Act, on which he had been researching in collaboration with a well-established academic expert.

Dobbin than asked whether Shenkman was on Assange’s legal team. He replied no. Dobbin pointed to an article he had written with two others, of which the byline stated that Shenkman was a member of Julian Assange’s legal team. Shenkman replied he was not responsible for the byline. He was a part of the team only in the sense that he had done a limited amount of work in a very junior capacity for Michael Ratner, who represented Assange, that related to Assange. He was “plankton” in Ratner’s firm.

Dobbin said that the article had claimed that the UK was illegally detaining Assange in the Ecuadorean Embassy. Shenkman replied that was the view of the UN Working Group on Arbitrary Detention, with which he concurred. Dobbin asked if he stood by that opinion. Shenkman stated that he did, but it bore no relationship to his research on the history of the Espionage Act on which he was giving evidence.

Dobbin asked whether, having written that article, he really believed he could give objective evidence as an expert witness. Shenkman said yes he could, on the history of use of the Espionage Act. It was five years since he had left the Ratner firm. Lawyers had all kinds of clients that very loosely related in one way or another to other work they did. They had to learn to put aside and be objective.

Dobbin said that the 2013 article stated that Assange’s extradition to the United States was almost certain. What was the basis of this claim? Shenkman replied that he had not been the main author of that article, with which three people were credited. He simply could not recall that phrase at this time or the thought behind it. He wished to testify on the history of the Espionage Act, of which he had just written the first historical study.

Dobbin asked Shenkman if he was giving evidence pro bono? He replied no, he was appearing as a paid expert witness to speak about the Espionage Act.

Dobbin said that the defence claimed that the Obama administration had taken the decision not to prosecute Assange. But successive court statements showed that an investigation was still ongoing (Dobbin took him through several of these, very slowly). If Assange had really believed the Obama administration had dropped the idea of prosecution, then why would he have stayed in the Embassy?

Shenkman replied that he was very confused why Dobbin would think he had any idea what Assange knew or thought at any moment in time. Why did she keep asking him questions about matters with which he had no connection at all and was not giving evidence?

But if she wanted his personal view, there had of course been ongoing investigations since 2010. It was standard Justice Department practice not to close off the possibility of future charges. But if Holder and Obama had wanted to prosecute, wouldn’t they have brought charges before they left office and got the kudos, rather than leave it for Trump?

Dobbin then asked a three part question that rather sapped my will to live. Shenkman sensibly ignored it and asked his own question instead. “Did I anticipate this indictment? No, I never thought we would see something as political as this. It is quite extraordinary. A lot of scholars are shocked.”

Dobbin now shifted ground to the meat of the government position. She invited Shenkman to agree with a variety of sentences cherry-picked from US court judgements over the years, all of which she purported to show an untrammelled right to put journalists in jail under the Espionage Act. She started with the Morison Case in the fourth appellate circuit and a quote to the effect that “a government employee who steals information is not entitled to use the First Amendment as a shield”. She invited Shenkman to agree. He declined to do so, stating that particular circumstances of each case must be taken into consideration and whistleblowing could not simply be characterised as stealing. Contrary opinions exist, including a recent 9th appellate circuit judgement over Snowden. So no, he did not agree. Besides Morison was not about a publisher. The Obama prosecutions showed the historic pattern of prosecuting the leaker not the publisher.

Dobbin then quoted a Supreme Court decision with a name I did not catch, and a quote to the effect that “the First Amendment cannot cover criminal conduct”. She then fired another case at him and another quote. She challenged him to disagree with the Supreme Court. Shenkman said the exercise she was engaged in was not valid. She was picking individual sentences from judgements in complex cases, which involved very different allegations. This present case was not about illegal wiretapping by the media like one she quoted, for example.

Dobbin then asked Shenkman whether unauthorised access to government databases is protected under the First Amendment. He replied that this was a highly contentious issue. There were, for example, a number of conflicting judgements in different appellate circuits about what constituted unauthorised access.
Dobbin asked if hacking a password hash would be unauthorised access. Shenkman replied this was not a simple question. In the present case, the evidence was the password was not needed to obtain documents. And could she define “hacking” in law? Dobbin said she was speaking in layman’s terms. Shenkman replied that she should not do that. We were in a court of law and he was expected to show extreme precision in his answers. She should meet the same standard in her questions.

Finally Dobbin unveiled her key point. Surely all these contentious points were therefore matters to be decided in the US courts after extradition? No, replied Shenkman. Political offences were a bar to extradition from the UK under UK law, and his evidence went to show that the decision to prosecute Assange under the Espionage Act was entirely political.

Mrs Dobbin will resume her cross examination of Mr Shenkman tomorrow.


I have two main points to make. The first is that Shenkman was sent a 180 page evidence bundle from the prosecution on the morning of his testimony, at 3am his time, before giving evidence at 9am. A proportion of this was entirely new material to him. He is then questioned on it. This keeps happening to every witness. On top of which, like almost every witness, his submitted statement addressed the first superseding indictment not the last minute second superseding indictment which introduces some entirely new offences. This is a ridiculous procedure.

My second is that, having been very critical of Judge Baraitser, it would be churlish of me not to note that there seems to be some definite change in her attitude to the case as the prosecution makes a complete horlicks of it. Whether this makes any long term difference I doubt. But it is pleasant to witness.

It is also fair to note that Baraitser has so far resisted strong US pressure to prevent the defence witnesses being heard at all. She has decided to hear all the evidence before deciding what is and is not admissible, against the prosecution desire that almost all the defence witnesses are excluded as irrelevant or unqualified. As she will make that decision when considering her judgement, that is why the prosecution spend so much time attacking the witnesses ad hominem rather than addressing their actual evidence. That may well be a mistake.
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108 thoughts on “Your Man in the Public Gallery: Assange Hearing Day 12

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  • Simon

    I find I am excitedly awaiting your daily report each morning. You really are rather good at this. Sincerely, thank you.

    • Matt

      My feelings too ^^^
      Detailed, informative, sobering and, at times, laugh-out-loud funny.
      Keep strong Craig,

    • Prue

      As I do each evening (being in the Antipodies).
      You are a truly magnificent man Craig. I’m amazed at your tenacity and strength and courage. You report so thoroughly on the hearing and you elucidate on matters that I for one am quite ignorant of. And you’ve got some mighty fine wit I must say. I’ll round up some bitcoin and donate them, cheaper by far than transferring funds from here – New Zealand
      Thank you. Thank you.
      But please do take care of yourself.

  • Thomas

    Hopefully I haven’t missed it but it would be helpful to see an overview of witnesses/evidence/allegations to see where the prosecution and defence are going by establishing, for example, the likely length of sentence he would serve.

    I guess in the above example it relates to some other law that would prevent extradition to a place with inhumane incarceration policies, but this wasn’t obvious from your fantastic report!

      • Thomas

        You’re no doubt correct, but skimming through day 6 & 7 it’s not very clear to me. In any case I learned that the charges had been changed, but this doesn’t help explain the purpose of each witness or which side they were called to represent. I should end here as I have no wish to criticise your fantastic effort and outcomes.

        • Tom Welsh

          Thomas, I don’t think it is reasonable to expect Mr Murray to provide a complete summary of everything he has previously written with each day’s report.

          Why don’t you go back and read through the reports, starting from the beginning?

          If you want simplistic and distorted conclusions, you have the entire mainstream media to choose from – I recommend the BBC and the Guardian.

          Truth is not very compressible.

          “There was once an interview with Jeff Greenfield in which he was asked why I was never asked onto Nightline. He gave a good answer. He said the main reason was that I lacked concision. I had never heard that word before. You have to have concision. You have to say something brief between two commercials.

          “What can you say that’s brief between two commercials? I can say Iran is a terrible state. I don’t need any evidence. I can say Ghaddaffi carries out terror. Suppose I try to say the US carries out terror, in fact it’s one of the leading terrorist states in the world. You can’t say that between commercials. People rightly want to know what do you mean. They’ve never heard that before. Then you have to explain. You have to give background. That’s exactly what’s cut out. Concision is a technique of propaganda. It ensures you cannot do anything except repeat clichés, the standard doctrine, or sound like a lunatic”.

          – Noam Chomsky (interview with Laura Flanders, 24/4/2012).

  • conjunction

    I just wish to repeat what I said a few days ago, and to echo Simon above, that your daily account of this trial reads like a thriller. it is also a most important historical document and an exciting psychological drama as well as an incredibly revealing picture of how the law can be twisted, resisted and upheld by its practitioners. Your accounts are extremely well-written and amusing.

    • Deepgreenpuddock

      I was going to make a comment very similar to yours.Those very thoughts were going through my mind as I read your comment. No point now, as you put it very well.
      I feel as if we are on the cusp of some major watershed.I think a book on the wider issues raised here is very much in order and would offer Craig an opportunity to further to secure his reputation and key contribution.
      The inadequate quality of our UK democracy is becoming ever more apparent as matters such as this one unfold (not to mention the disgraceful internal market bill and the obliteration of our rights, which it represents).
      Trump’s hijacking of the democratic process in the US is also revealing the fault lines of b phoney system and its ( and our) susceptibility to demagoguery and neo-fascist- anti democratic and unaccountable charlatanism represented by the likes of Bannon and Cummings and their political amanuensi (Johnson and Trump).
      .Blogs such as this are critical to developing some new realistic discourse fora. The lamentably vacuous quality of conventional mass media has been underscored and made ever more obvious by this affair-first in failing to even recognise the wider significance, and the failure to even carry out the most basic aspects of journalism.
      reporting and recording, but manfully taken on by Craig
      I shall join the many voices of admiration and respect for Craig’s intellectual rigour, his energy, his perspicacity and above all his straightforward decency, in facing up to such malign influences.

      • Stevie Boy

        I concur, I’d buy it !
        Unlike the internet/web, a book also has the advantage of entering the facts into the historical record for all time.

  • Robert Dyson

    Maybe judge Baraitser is realising that she will be the target for the outrage that may follow this trial and is pondering her future. It is reminiscent of show trials I read about in Stalin’s USSR; they were much worse but this one is beyond merely bad. If this is the way the law can work I fear for all of us.

    • Carl

      The difference is everybody was made to know about Stalin’s show trials, even though they happened many moons ago in a closed-off society thousands of miles away.

      • N_

        Yes, they were show trials. The USSR had joined the League of Nations in 1934 and was doing a lot of business with the US. I’m not sure but I think the New York Times had their reporter physically in court, in the press gallery – Walter Duranty. He certainly reported on the trials.

        That damned Grey Lady gets everywhere.

        • Roberto

          Duranty reported the accused were all guilty, and that he believed the ‘confessions’, just as he reported years before that there was no famine and things were a little tough, but life was reasonably good for people under the circumstances (presumably in the ground or in the Gulag). He lived very well in the USSR, and his reporting earned him a Pulitzer Prize, always a dubious honour. The New York Times won’t relinquish the prize, despite many demands it do so, because it because it ‘can’t be found’, or later, the legalese response that it is ‘not in their possession”, which invites the obvious question as to who ‘possesses’ it or if it’s in a safety deposit box.
          They also claim that the Pulitzer board has twice refused to withdraw it.
          Regarding an Assange (show) trial in the US, if it were under a Trump administration the government could very well lose. Despite the NYT considering the Wikileaks release ‘treason’ (during the Obama years) they surely would quickly change that opinion, as would the ‘swamp’, and the MSM. During the Nixon administration the NYT went all the way to the Supreme Court to be allowed to publish the Pentagon Papers and lauded Ellsberg as a hero. Before Trump Derangement syndrome, there was N(ixon)DS.
          Traditionally, journalists have been informally exempt from prosecution, Assange is not a US citizen, and the leaker has been tried and convicted (and had their sentence commuted during the last days of the Obama administration).

      • Stuart

        Yes the key difference is that the Moscow show trials were propaganda exercises carried out in public to lay the blame for Bolshevism’s failures on Stalin’s rivals in the Party as a convenient way of eliminating them. That is different from the Assange extradition hearing where the aim is to keep it out of the public eye as much as possible.

        • Stuart

          I forgot to add:
          The real show trial will be the one conducted in the USA if they manage to extradite Julian – with a rigged jury, false evidence from jailhouse snitches,biased judges and a foreordained guilty verdict.

    • giyane

      Robert Dyson

      The fact that Craig has noticed in his own heart a palpable change in Judge Baraitser’s heart after hearing the defence witnesses for the first time, and having heard only the prosecution side previously, is exactly what a court of Law is for. That is very right and proper and very professional of her.

      It is also very professional of Craig as a journalist of the inimitable and indefatigable Craig Murray to provide a record and summary of court proceedings and she can use them to refresh her memory if and when the Prosecution / USG try to apply pressure on her.

      I don’t have cash so all I can send is praise and admiration.

      • N_

        @giyane – I share your optimism about the chance of a positive result. The prosecution seems to be in trouble.

        There is an election campaign in the US. That will have an effect on this case – and vice versa. The first TV debate between the nominees is scheduled for in 11 days’ time. I really hope Julian Assange doesn’t try to deal with the Trump side as he did four years ago. The danger is that he finds that the issue of his extradition gets associated with Trump’s contempt for the lives of US service personnel. The message could be put out for example that Trump spits on the graves of US service personnel because look how he made promises to Assange. (Never mind the absence of detailed logically sound chains of argument here. That’s irrelevant. That’s not how propaganda works.) Then Trump would probably turn around and say it wasn’t him who did anything wrong – “It was Biden, Obama, H Clinton and ISIS who did it, and look at Benghazi etc., and these guys are all best mates not only with Soros but also with Assange, who by the way thinks he can grab any nearby p*ssy and takes lots of drugs”. This is of course utterly ridiculous, indeed much worse than merely ridiculous, but hey.

    • amanfromMars

      Robert Dyson, Hi,

      Re : “Maybe judge Baraitser is realising that she will be the target for the outrage that may follow this trial and is pondering her future. It is reminiscent of show trials I read about in Stalin’s USSR; they were much worse but this one is beyond merely bad. If this is the way the law can work I fear for all of us.” … posted September 18, 2020 at 09:34

      If this is the way the law works, …… being reminiscent and actively embracing of Stalinist USSR show trials style, …… its supporters and agents most definitely needs to fear for themselves, methinks. And it would incredibly stupid of the law not to realise the dangers they would certainly invite and ignite.

      However, don’t be too surprised if that be a course some would choose, for as Einstein is reputed to have said ……. “Only two things are infinite, the universe and human stupidity, and I’m not sure about the former.”

  • conjunction

    Another point: I have never read in journalism or in fiction an account of any other trial where anything similar to the refusal to hear Goetz’s evidence on the meeting or dinner he attended where Harding alleges Assange’s comment on collateral damage. Nor have I ever read of anything similar to the half-hour guillotine for the defence and free time for the prosecution, or the business of sending huge evidence at 3am for a 9am start.

    Is anyone aware of any precedent in a British court?

    • Andrew Mcguiness

      To clarify: Goetz’s submitted statement did not include a reference to the dinner and the remark that was NOT made at it, and the prosecution didn’t raise it with him, so the judge refused to let him be questioned on it by the defence. However, the prosecution raised the allegation with people who weren’t at the dinner and couldn’t be expected to know anything about it. Apparently, the prosecution is allowed to raise whatever they like in cross-examination of defence witnesses, and the defence can then cross-examine that witness (but not others) on that issue. It’s pretty obviously (as Craig M. notes) an instance where the judge could use their judgement – particularly since it is a transparent ploy by the prosecution to muddy the waters.

      The time limits were agreed at the start – the defence wanted to have the witnesses read their statements into the record, before cross-examination. That wasn’t allowed (since Baraitser said she’d already read the statements so why do they need to be read to the court?) and what was agreed instead was 30 minutes for the defence to ‘settle’ the witness – to bring up key issues of their statement – followed by up to 4 hours of prosecution cross-examination, and (I think) the same time for the defence.

  • grayslady

    Excellent reporting. Thank you so much. Not to be petty, but the prosecutor’s name is Claire Dobbin, not Dobbins, and she has been active in quite a few cases of extradition to the US, including the cases of Gary McKinnon and Harkin and Edwards. In the former case, it was Theresa May who stepped in and prevented extradition. In the latter, it resulted in some interesting decisions by the European Court of Human Rights regarding whether a sentence of life imprisonment in the US is inhumane. Unfortunately, the ECHR believes that for someone not mentally impaired or else a juvenile at the time of committing the crime, as long as the life sentence has even a remote possibility of parole the sentence isn’t inhumane. The Harkin decision by the ECHR explains where the prosecution has been going in this case regarding sentencing should Assange be extradited. The ECHR clearly doesn’t know the level of squalor in US prisons.

    [ Mod: Thanks for the correction. The text has been updated accordingly. ]

    • Kempe

      The level of squalor in US prisons is probably no worse, and probably less, than the squalor in some of the ECHR’s member states.

      • Yalt

        Squalor isn’t a primary criticism of the US prison regime; certainly not of the supermax prisons Assange can expect to be held in. We save squalorous overcrowding for the lower classes; a prominent political prisoner can expect his torture to be carried out quite meticulously and in perfect bureaucratic order.

    • Andrew Mcguiness

      It isn’t just a matter of squalor, but of the US govt’s intention to hold Assange under ‘Special Administrative Procedures’. This involves total solitary confinement – the prisoner is allowed one hour recreation out of their cell per day, but this takes place in the middle of the night when no other prisoners are around. Access to magazines and tv is strictly censored. Communication with any person outside the prison except lawyers is prohibited, including messages carried to or fro by the lawyers. Healthcare is of a very poor standard, including mental healthcare. Suicides are common.

  • George Sands

    I spent quite some time yesterday (2020-09-17) reading the twitter feeds of Kevin Gozstola and Consortium news on the case. I thought Consortium News’ feed better in scope and linking items to history, which is unsurprising as this is Joe Lauria and others with more age than Gozstola. But, I praise them both for doing the work. That work, though the daily video summaries by Lauria are great, pale in comparison to the articles you provide, Mr Murray.

    I keep forgetting that you have been around Wikileaks and Assange for quite some time and have an inside knowledge of some of the events being discussed in this case. Additionally, the video links have been limited and “vetted” as have the number of journalists in the court at the local video feed, which has been intermittent. This places great value on being actually in the court as a first hand witness to the proceedings. This, Mr Murray, puts you in a very powerful position. As you are a friend of the defendent it must be very difficult to report on the case without having biases influence your reporting.

    I believe you are an honest man, and a man of principle, and I am in no way trying to suggest that you are misrepresenting what is happening. I am also a fan of journalists who wear their heart on their sleeve. Your separation during your pieces of an introduction, followed by reporting on what you observed, with some adjectival bent here and there, and then following with your commentary, seems wholely appropriate.

    Whilst the defendent is a friend, you are also a student of history. I am certain that you see these events as historic, and being reported on poorly by the old media, thus providing you with the opportunity to provide a first hand account of an historic event, relating to previous events with which you have had personal involvement. I expect this is the balance you are trying to reach; support for a friend and describing accurately that which you observe in the court within whatever stupid limits by which you are restricted (e.g verbatim transcription).

    I believe that it is important both to follow what is going on in this historic case, but also consider the motivations and objectives of those recording it. The same is true of those who are participating in it! E.g the judge, council and experts testifying.

    I am glad that you acknowledged the mild change in the judge’s behaviour. She knows that if she issues the extradition that it will be appealed and her High Court colleagues will review the case. With seven odd days of the current proceedings behind us we can see the very poor behaviour of the prosecution; second superceeding indictment issued just a few weeks before start of proceedings, sending evidence bundles of 180 odd pages to expert witnesses just hours before they testify etc.. More importantly, we can see the tactics of the prosecutors in the court; bullying witnesses, attempting to undermine their credibility and complaining about “lack of time” when they get eight fold more time than the defense with those witnesses (4 hours vs. 30 minutes). All of this seems to be rather annoying the judge. Whilst all of this is going on, the defense are laying down their case and the prosecution seems to struggling to find any legal case at all.

    I also see a “battle of legal systems” going on. Whilst the defense are behaving in a way which is “standard” for the British legal system the prosecution are being brash, ‘losing their cool’ and spending time asking expert witnesses about things which unrelated to their submission. It seems the USA DoJ does not have enough expertise to be able to either hire the more appropriate QCs or to instruct them well, or both.

    Thank you for your wonderful work, and for climbing those 132 steps multiple times a day.

    • George Sands

      As much as I said that I thought that CN’s twitter feed was “better” than Gozstola’s, Kevin has a great article presenting the evidence from the expert witness on the historical use of the “Espionage Act”. Well worth a read:

      Indeed, Kevin is publishing there regularly and his articles are excellent. (i.e twitter threads are a shitty way of presenting information).

      • Andrew Mcguiness

        @DefenseAssange does the best job of actual live tweeting – coherent and informed, and nicely divided for retweeting.

  • Ingwe

    Excellent reporting Mr Murray. It is hard enough for lawyers sometimes to follow evidence and points made in cross-examination so your excellence need not be qualified by any apologies.

    I wonder whether, the procedural unfairness by the prosecution in producing huge additional documents in the middle of the night, upon which the witnesses will be questioned, in breach of the principle that surprise is no longer an acceptable tactic in U.K. law, is raised by defence counsel so that it’s on the record?

  • David G

    Horlicks, lol.

    So I gather the government side is making so much of the risk, or even inconvenience (since no one can give any examples of actual bodily harm) faced by Afghan and Iraqi locals named in these field reports, and possibly identified or identifiable in their Wikileaks-published form, because that manifests an apolitical, even humanitarian priority of the U.S. that such people not be endangered, thereby giving the requisite non-political character to the prosecution and extradition request.

    While I understand the witnesses not taking this tack, I can’t help but think the truest reply to these questions would be along the lines of, “WELL, IF THEY WERE SO BLOODY CONCERNED ABOUT THESE PEOPLE’S WELL-BEING, THEN WHY DID THEY START THE BLOODY WARS AND DESTROY THEIR BLOODY COUNTRIES?” And loud, like I typed it.

    • Stevie Boy

      This pretense of caring by the UK (and probably US) governments doesn’t really hold up. Consider the case of interpreters who worked with the armed forces in Afghanistan/Iraq, the government didn’t give a damn about their safety and well-being and were happy to abandon them in country to suffer any repercussions rather than let them return to the UK.

  • David G

    So I have a question about the procedure:

    Everything so far has been has been Assange’s case. Will there be a government case to follow, with their own witnesses?

    (Usually the prosecution would go first, but perhaps Assange is in the plaintiff’s place here as he is petitioning against the extradition?)

  • Justin

    The mysterious “Dwyer” is Kellen S. Dwyer, the bumbling Assistant US Attorney in the Eastern District of Virginia who let the world know about the sealed indictment against Assange:

    US attorney accidentally reveals feds have charged Julian Assange (Washington Examiner, 18 Nov 2018)

    That slip could have hastened diplomatic moves to extract Assange from the Ecuadorian Embassy, as it was no longer possible to maintain the pretence that he had nothing to hide from.

    Dwyer’s first affidavit is cited frequently in the second superceding indictment.

    US Dept of Justice – WikiLeaks Founder Charged in Superseding Indictment: New Allegations Assert Assange Conspired With “Anonymous” Affiliated Hackers, Among Others (24 June 2020)

    • Yalt

      I can see why he’s so sensitive on the subject of the disclosure of names. Military and intelligence experts confirm that this information poses a grave danger to Dwyer’s reputation.

  • N_

    targeting of civilians was a war crime

    Indeed. One of the most spectacular crimes of this type was the dropping of nuclear weapons on two Japanese cities in 1945, for which the US government has never paid reparations, allowed any of the guilty to be tried, or even apologised. Never forget.

        • George Sands

          Indeed. Was not Burchett the first journalist to visit and report on the aftermath of the nuclear bombing of Hiroshima? All the other journalists were listening to the advice of the USA military and not reporting. Burchett had a different agenda. This was an historic event, the first time a nuclear weapon had been used in war, and he wanted to report on it.

          Which reminds me of what is happening now. A major historical event, the attempt to extradite a publisher/journalist for publishing true but classified information is occurring. Who is reporting on it in detail? A small collection of journalists who do NOT work for large media organisations; Murray, Consortium News, Gosztola.

    • Tom Welsh

      And the wholesale use of chemical wreapons in South-East Asia and many other places. Such as dropping white phosphorus on civilians.

      • George Sands

        And the use of depleted uranium in Iraq. And cluster munitions in Yemen. And using drones to shoot missiles which kill way more civilians than actual targets in countries which the USA has not declared war. etc etc.

      • Andrew Mcguiness

        And Agent Orange. My partner volunteered briefly in an orphanage in Vietnam, where there were kids who were damaged as a result of Agent Orange leaking into the water supply – that was in 2010.

  • Crispa

    I would be interested to know why it is not now possible to read the full witness statements on-line as on the first day. I thought the judge stated that the fact that they were available online was as a reason for restricting the defendant’s counsel to 30 minutes. Craig mentions the issue in a previous report. The original link to the site produces an error message and the statements have clearly been pulled. These are important documents in their own right, and in the interests of transparency in a situation of restricted access should surely be available for us to read.

    • Tom Welsh

      “I thought the judge stated that the fact that they were available online was as a reason for restricting the defendant’s counsel to 30 minutes”.

      Aha! That’s why highly-paid lawyers (including judges) are highly paid. She said they were available online – but not where or to whom.

    • Annie McStravick

      Baraitser originally claimed that there was no need at all for the witnesses to make their statements verbally to the court. It was only thanks to the protest by Summers that she relented and said they’d be allowed 30 minutes, as opposed to unlimited time granted to the prosecution for cross-examination
      I recall that, on the website of Bridges for Media Freedom, the full statements of the early witnesses were published (Feldman, Stafford Smith, Rogers, Timm). Those have apparently been disappeared, and no subsequent witness statements have been published. Is nobody questioning that?

      • craig Post author

        Thanks Andrew. They are going up again now. They weren’t for several days following a big stooshie caused by Cryptome’s publication of the prosecution bundle given to defence witnesses (which I am not going to link to as I don’t want to give an excuse to chuck me out for contempt of court.)

  • N_

    As for Joel, given that the halo effect probably means he has fought to where he is against adversity to a greater extent than a Rudolf Valentino lookalike would have had to, beware.

  • Joel Smythson

    “Smith also established that Sloboda did not hold a US security clearance (and thus was in illegal possession of the information from the viewpoint of the US government).”

    No. This is untrue. The US government viewpoint is that disseminating classified information is illegal. In itself, possession of information is not a crime – it’s what if anything is done with it.

    • David G

      You need to reread Carey Shenkman’s evidence above, citing the article by Edgar and Schmidt on the lack of limitation in the text of the Espionage Act of 1917:

      “There was no limit on strict liability. The third or fifth receiver in the chain of publication of classified information could be prosecuted, not just the journalist or publisher but the person who sells or even buys or reads the newspaper.”

      The only problem with that quotation is the use of the past tense and the subjunctive mood!

      While past prosecutors have not exploited the statute’s potentially ultra-broad scope, the current crop under Trump are currently starting down that road, so Craig is right to highlight the chilling regime they are trying to birth, even if the U.S. government hasn’t taken it quite so far … yet.

    • Andrew Mcguiness

      Not quite – according to clause (f) makes it illegal to provide national defense information to someone unauthorised to have it; and clause (g) makes it a crime for anyone to conspire to do that. So if someone who doesn’t have access ‘conspires’ with someone who does to get hold of documents, that’s a crime under the Espionage and Censorship law in the US. I gather that’s one of the things they’re bringing against Julian.

  • Jan

    Mark Twain masterly describes in his Mysterious Stranger and other Stories the cowering of politicians,  journalists, the church and perhaps even lawyers and judges through intimation by the war party.

    “There has never been a just war, never an honorable one on the part of the instigator of the war. I can see a million years ahead and this rule will never change in so many as half a dozen instances. The loud little handful as usual will shout for the war. The pulpit will warily and cautiously object at first the great, big, dull bulk of the nation will rub its sleepy eyes and try to make out why there should be a war and will say, earnestly and indignantly, ‘It is unjust and dishonorable, and there is no necessity for it.’ Then the handful will shout louder. A few fair men on the other side will argue and reason against the war with speech and pen and at first will have a hearing and be applauded but it will not last long. Those others will outshout them and presently the anti-war audiences will thin out and lose popularity. Before long you will see this curious thing, the speakers stoned from the platform, and free speech strangled by hordes of furious men who in their secret hearts are still at one with those stoned speakers as earlier but do not dare say so. And now the whole nation pulpit and all will take up the war-cry, and shout itself hoarse, and mob any honest man who ventures to open his mouth  and presently such mouths will cease to open. Next the statesmen will invent cheap lies, putting the blame upon the nation that is attacked and every man will be glad of those conscience soothing falsities and will diligently study them and refuse to examine any refutations of them and thus he will by and by convince himself the war is just and will thank God for the better sleep he enjoys after this process of grotesque self-deception.”

    Because of your courageous action by reporting the proceedings as they really are they will never be able to “sooth their conscience” and delude themselves that they fought for a just cause.
    Thank you for keeping us informed.

  • M.J.

    “Shenkman was sent a 180 page.. at 3am his time, before giving evidence at 9am. A proportion of this was entirely new material to him. He is then questioned on it. This keeps happening to every witness.”

    Yet another ground for appeal, methinks. Insufficient time to prepare witnesses (themselves, in this case).

  • Mark Golding

    Caitlin Johnstone, an independent journalist based in Melbourne, Australia:

    The Kafkaesque extradition trial of WikiLeaks founder Julian Assange continues, with each frustrating day making it clearer than the day before that what we are watching is nothing other than a staged performance by the US and UK governments to explain why it’s okay for powerful governments to jail journalists who expose inconvenient truths about them.

  • pete

    This is turning out to be quite an extraordinary case. It has all the grim reality and shameful spectacle of a Roman Circus performed in private. I am in awe of Craig’s stamina in reporting! This in the face of all the obstacles thrown into the mix by the increasingly desperate prosecution.

    • Tom Welsh

      “Cometh the hour, cometh the man”.

      A reliable way of identifying truly exceptional people is that, when the chips are down, they rise to the challenge in truly exceptional ways.

  • writeon

    I think Craig Murray’s efforts to provide a public record of these bizarre proceedings, deserves one’s unqualified admiration; especially compared to the extraordinary silence about the case from the rest of the media, even though they are directly implicated by the principles, values and working methods that are on a daily basis being undermined by the US prosecutors!

    Baraitser maybe thinking about her reputation and role in history. Probably her only role in history. In the legal profession ‘reputation’ is closely guarded and incredibly important too. Does one really want to be remembered for one terrible judgement that the future will look on with something close to horror and disgust? Sending a ground-breaking journalist and publisher, (a person who re-wrote the book on journalism and its’ relationship to the state) to rot for the rest of his days in a US, hi-tech, dungeon? Assange is being martyred for sticking to his right to tell the truth to the public about the lies the state tells them about our wars. That is a public service to be applauded, not viciously punished. I wonder if Baraitser thinks about how posterity will view her reole in all this? I wonder if she is personally learning things from the witnesses that she didn’t know very much about? Objectively, it seems like the US case against Assange qualifies as being as openly political, 100%, as it’s possible to get. Any fool can see that, surely? The pretense that it isn’t ‘Political’ is an insult to everyone’s intelligence, including Baraitser’s! So, if there is any ‘Justice’ anymore, she’ll throw the US demand out.

    • Stevie Boy

      Let’s hope Baraitser judges fairly and, as such, throws the extradition request out.
      However, if that happens, think what will happen the next day … US threats, no Brexit deal, Assange able to tell his story to one and all. Egg (or is that sh*te) on the face of the MSM and the US/UK Government. Will that really be allowed to happen ? Would there be a second extradition request on ‘different’ charges ?
      Maybe Porton Down will deliver a Novichok cocktail for Julian’s release party.

  • Tom Welsh

    “It is also fair to note that Baraitser has so far resisted strong US pressure to prevent the defence witnesses being heard at all”.

    Perhaps she still has some respect for the law, whereas employees of the US government seem united in their belief that they are permitted to do anything at all that they want, and that anyone who hinders them in the slightest way is a criminal by definition.

  • Geoff Reynolds

    ……………………………….Apparently a freedom of information request was submitted relating to Judge Ratbraiser………..

    Request denied

    A request under the Freedom of Information Act (FOIA) was sent by Declassified to the Ministry of Justice (MOJ) on 28 February 2020 requesting a list of all the cases on which Baraitser has ruled since she was appointed in 2011. The MOJ noted in response that it was obliged to send a reply within 20 working days.

    Two months later, on 29 April 2020, an information officer at the HM Courts and Tribunals Service responded that it could “confirm” that it held “some of the information that you have requested”.

    Declassified has also discovered that the judge, Vanessa Baraitser, has ordered extradition in 96% of the cases she has presided over for which information is publicly available.

    But the request was rejected since the officer claimed it was not consistent with the Constitutional Reform Act. “The judiciary is not a public body for the purposes of FOIA… and requests asking to disclose all the cases a named judge ruled on are therefore outside the scope of the FOIA,” the officer stated.


  • Tom Welsh

    Iraq Body Count has, as Mr Murray remarks, done a very useful service by putting an absolute minimum on the number of deaths caused by the USA’s unprovoked wars of aggression against Iraq. At present their site shows 185,296 – 208,295 documented civilian deaths from violence and 288,000 total violent deaths including combatants.

    The comprehensive and scholarly two-volume study “Genocide in Iraq” by Dr. Abdul-Haq al-Ani and Tarik al-Ani asserts that over 3 million Iraqis died as a result of US invasions. That number may be on the low side for obvious reasons, and excludes those maimed, bereaved, made homeless and forced to flee to other regions or countries. Additionally, of course, the US invasions deliberately destroyed the government, political organisation and physical infrastructure of Iraq.

    Thus the fine work of Iraq Body Count has allowed those who wish to minimise the harm done by the USA’s illegal wars of aggression to claim that only about one-tenth as many Iraqis were killed as was the case. (Not that deliberately massacring the equivalent of the total population of Aberdeen, Southampton or Westminster is a small matter).

    • Tom Welsh

      It should be superfluous to point out that 3 million dead Iraqis are the equivalent of 1,000 9/11s.

      It is a useful exercise to ponder why Western governments and media do not give the Iraqi dead 1,000 times more coverage than 9/11.

      Of course it could not possibly be that Westerners are racist.

  • Tom Welsh

    While I admire Mr Assange’s insistence on removing all dangerous personal information from the published logs, and appreciate his practical reasons for doing so, the plain fact is that the US attacks on and invasions of Iraq were unprovoked wars of aggression – the supreme international crime. They were illegal under the Nuremberg Principles, the UN Charter, and international law, and just as morally repugnant as any other unprovoked war of aggression.

    Thus all harm whatsoever arising from those wars is the sole responsibility of the malefactors who launched them – namely, the US federal government (and its “allies” who participated in the violence).

    Any members of the attacking forces who suffered injury of any kind have only themselves to blame (and the authorities who ordered them to commit war crimes).

    And, no matter how much sympathy we may feel for them, Iraqis who assisted the invading forces were committing treason against their own nation. The legal penalty for treason has traditionally been death, although recently in some countries convicted traitors may escape with very long prison sentences.

  • Kaiama

    Ms Dobbin started by stating that Mr Shenkman had worked for Julian Assange. Shenkman clarified that he had worked in the firm of the great lawyer Michael Ratner, who represented Mr Assange. But that firm had been dissolved on Mr Ratner’s death in 2016 and Shenkman now worked on his own behalf. This all had no bearing on the history and use of the Espionage Act

    Shenkman replied that he was very confused why Dobbin would think he had any idea what Assange knew or thought at any moment in time. Why did she keep asking him questions about matters with which he had no connection at all and was not giving evidence?

    Dobbin said she was speaking in layman’s terms. Shenkman replied that she should not do that. We were in a court of law and he was expected to show extreme precision in his answers. She should meet the same standard in her questions.

    An American lawyer telling a British QC how to conduct herself in court. Love it!

  • writeon

    Nils Melzer, the UN expert on torture of political prisoners, has become one of Assange’s most articulate and qualified defenders and has something close to contempt for the way Assange has been ‘witch-hunted’ by both the media and the judicial system. But, interestingly, like so many other educated liberals, his initial response to requests he look into the Assange Affair, was wary, circumspect and negative. That was until he actually began to look at the facts and details of the case for himself rather than relying on the media for their version of events. When he actually looked at things rationally, objectively and professionally for himself, he was stunned and shocked and almost couldn’t believe just how twisted and untrue virtually everything he had ‘been told’ by the media really was!

    Baraitser comes from a similar background to Melzer and has the same kind of education in the law, though he’s vastly more experienced than she is. Baraitser has been subject to the same anti-Assange propaganda, reeking of the witch-hunt and worse, in our media as Melzer was subject to, so, perhaps her eyes have been opened too, as, for the first time she herself is allowed and able to hear the arguments for the defence for a change, without the smears, manipulation, downright lies and character assassination our ‘free and fair’ media has excelled in throughout this affair?

    • David G

      It’s great that you bring this up.

      On first reading Melzer’s account of how his perspective had evolved, I wondered whether I should view it as glass half-empty or half-full: discouraged that a highly qualified lawyer and scholar had theretofore been so completely hoodwinked by a fraudulent information campaign in his own area of expertise? or encouraged that when exposed to the facts he changed his opinion and then acted accordingly?

      It seems too much to hope that the system will have allowed this case to be determined by something as primitive as a thought-to-be-reliable judge actually doing her job of listening and forming her views based on the evidence and the law, but at least on an individual level, humanity can sometimes defeat propaganda.

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