Your Man in the Public Gallery: Assange Hearing Day 13 148

Friday gave us the most emotionally charged moments yet at the Assange hearing, showed that strange and sharp twists in the story are still arriving at the Old Bailey, and brought into sharp focus some questions about the handling and validity of evidence, which I will address in comment.


The first witness of the day was Nicky Hager, the veteran New Zealand investigative journalist. Hager’s co-authored book “Hit and Run” detailed a disastrous New Zealand SAS raid in Afghanistan, “Operation Burnham”, that achieved nothing but the deaths of civilians, including a child. Hager was the object of much calumny and insult, and even of police raids on his home, but in July an official government report found that all the major facts of his book were correct, and the New Zealand military had run dangerously out of control:

“Ministers were not able to exercise the democratic control of the military. The military do not exist for their own purpose, they are meant to be controlled by their minister who is accountable to Parliament.”

Edward Fitzgerald took Hager through his evidence. Hager stated that journalists had a duty to serve the public, and that they could not do this without access to secret sources of classified information. This was even more necessary for the public good in time of war. Claims of harm are always made by governments against any such disclosures. It is always stated. Such claims had been frequently made against him throughout his career. No evidence had ever emerged to back up any of these claims that anybody had been harmed as a result of his journalism.

When Wikileaks had released the Afghan War Logs, they had been an invaluable source to journalists. They showed details of regular patrols, CIA financed local forces, aid and reconstruction ops, technical intelligence ops, special ops and psychological ops, among others. They had contributed much to his books on Afghanistan. Information marked as confidential is essential to public understanding of the war. He freqently used leaked material. You had to judge whether it was in the higher public interest to inform the public. Decisions of war and peace were of the very highest public interest. If the public were being misled about the conduct and course of the war, how could democratic choices be made?

Edward Fitzgerald then asked about the collateral murder video and what they revealed about the rules of engagement. Hager said that the Collateral Murder video had “the most profound effect throughout the world”. The publication of that video and the words “”Look at those dead bastards” had changed world opinion on the subject of civilian casualties. In fact the Rules of Engagement had been changed to put more emphasis on avoiding civilian casualties, as a direct result.

In November 2010 Hager had travelled to the UK to join the Wikileaks team and had become involved in redacting and printing stories from the cables relating to Australasia. He was one of the local partners Wikileaks had brought in for the cables, expanding from the original media consortium that handled the Afghan and Iraqi war logs.

Wikileaks’ idea was a rigorous process of redaction and publication. They were going through the cables country by country. It was a careful and diligent process. Wikileaks were very serious and responsible about what they were doing. His abiding memory was sitting in a room with Wikileaks staff and other journalists, with everyone working for hours and hours in total silence, concentrated on going through the cables. Hager had been very pleased to see the level of care that was taken.

Edward Fitzgerald asked him about Julian Assange. Hager said he found him completely different to the media presentation of him. He was thoughtful, humorous and energetic. He dedicated himself to trying to make the world a better place, particularly in the post 9/11 climate of a reduction of citizen freedoms in the world. Assange had a vision that the digital age would enable a new kind of whistleblower which could correct the information imbalance between government and citizen. This was against a background of torture, rendition and war crimes being widely committed by western governments.

James Lewis QC then rose to cross-examine on behalf of the US government

Lewis Have you read the indictment and the extradition request?
Hager Yes.
Lewis What charges do you see there?
Hager I see a mish-mash. Some charges of publication, some of possession then other stuff added.
Lewis Assange is not charged with publishing the collateral murder video your evidence says so much about
Hager You can’t look at the effect the Wikileaks revelations had on the world in that kind of neat and compartmentalised way. The cables, logs and all the rest affected the world as a whole.
Lewis Is Assange charged with publication of any of the documents you have relied on in your works?
Hager That would take me some research to find out, which he is charged with publishing and which with possession.
Lewis Have you ever paid a government official to give you secret information?
Hager No.
Lewis Have you ever hacked?
Hager No, probably. That depends how you define “hack”.
Lewis You have as a journalist merely been the passive recipient of official information. Presumably you have never done anything criminal to obtain government information?
Hager You said “passive”. That is not the way we work. Journalists not only actively work our sources. We go out and find our sources. The information might come in documents. It might come on a memory stick. In most cases our sources are breaking the law. Our duty is to help protect them from being caught. We actively help them cover their backs sometimes.
Lewis In your report on Operation Burnham you protected your sources. Would you knowingly put a source in danger?
Hager No, of course not. However…
Lewis No. Stop. You answered.

Edward Fitzgerald QC rose to object but found no support from the judge.

Lewis On 2 September 2011 the Guardian published an editorial article abhorring Wikileaks’ publishing of unredacted cables and stating that hundreds of lives had been put in danger. Do you agree with those statements?
Hager My information is that Wikileaks did not release the cables until others had published.
Lewis We say your understanding is wrong. On 25 August Wikileaks published 134,000 cables including some marked “strictly protect”. What is your opinion on that?
Hager I am not going to comment on a disputed fact. I do not personally know.
Lewis The book “Wikileaks: the Inside Story” by David Leigh and Luke Harding of the Guardian newspaper states that Assange “wished to release the whole lot sooner”. It also states that at a dinner at El Moro restaurant, Assange stated that if informants were killed, they had it coming to them. Would you care to comment?
Hager I know that there was great animosity between David Leigh and Julian Assange by the point that book was written. I would not regard that as a reliable source. I do not want to dignify that book by answering it.
Lewis Are you trying to assist the court or assist Assange? In a talk recorded at the Frontline Club, Assange stated that Wikileaks only had a duty to protect informants from “unjust” retribution, and that those who gave information to US forces for money or engaged in “truly traitorous” behaviour deserved their fate. Do you support that statement?
Hager No.
Lewis You say it would have been impossible to write your book without confidential material from Wikileaks. Did you need the names of informants?
Hager No.
Lewis The Operation Burnham report found at p.8 that, contrary to your assertions “New Zealand Defence Forces were not involved in planning preparation and execution”.
Hager What you have quoted does not relate to the main operations covered in the book. It only refers to something covered as a “minor footnote” in the book. Most of the findings of the book were confirmed.
Lewis The Official Report states of your book “Hit and Run was inaccurate in some respects”.
Hager We did not get everything right. But the major points were all true. “Civilian casualties confirmed. Death of child confirmed. Prisoner beaten up confirmed. Falsified reports confirmed.”
Lewis How many cables did you personally review?
Hager A few hundred. They were specifically cables relating to Australasia.
Lewis And what criteria did you use to make redactions?
Hager There were quite a few names marked “strictly protect”. This was not, in the context, for reasons of safety in the countries which I was working on. It was purely to avoid political embarrassment.
Lewis But how long did you work in London on the cables?
Hager It was several days, to do several hundred cables.
Lewis Did you show your statement to the defence in draft?
Hager Yes, I have always done this when I have submitted an affidavit.

[This is normal. Affidavits or statements from defence witnesses are normally drawn up and, if affidavits, taken under oath by the defence solicitors.]

Lewis Did the defence suggest to you that you should place the section on Rules of Engagement next to the Collateral Damage video?
Hager Yes. But I was very happy to do it, it made perfect sense to me.

Edward Fitzgerald QC then rose again for the re-examination.

Fitzgerald You were asked if you know what Assange is charged with. Do you know he is charged with obtaining and receiving all of the diplomatic cables, the Iraq war logs, the Afghan war logs, the rules of engagement, and the Guantanamo detainee assessments?
Hager Yes.
Fitzgerald And he could not have published any of them without first obtaining and receiving them? So the distinction as to which he is charged for publishing makes no difference to the liability of journalists like yourself to the Espionage Act for obtaining and receiving US classified information?
Hager Yes.
Fitzgerald You work with sources. That means the person who provides you with the information or material. And do you have a duty to protect that source?
Hager Yes.
Fitzgerald You were asked about the September 2011 publication of cables. What do you know about how that came about?
Hager I believed the Wikileaks people and witnessed their extreme seriousness in the redaction process to which they invited me in. I do not believe they suddenly changed their mind about it. This publication came about through a series of bad luck and unfortunate events, not by Wikileaks. But that nine month redaction process was not wasted. Wikileaks had at an early stage warned the US authorities and invited them to be part of the redaction process. Assange had stressed to US authorities the danger to those named in the report. While the US authorities had not got involved in redaction, they had started a massive exercise in warning those named in the reports that they might have been in danger, and helping those the most at risk to take measures to relocate. I think this is overlooked. Julian Assange bought those people nine months. I also believe that is the major part of the explanation why in the end there were no identifiable deaths and was no wholesale damage.
Fitzgerald What do you believe the bad luck to have been?
Hager I understand it was the publication of a password in the Leigh/Harding book, but I have no direct knowledge.
Fitzgerald On this book, you have said there was bad blood between Luke Harding, David Leigh and Julian Assange.
Hager Yes, I would not put much weight on that book as a source myself.

[I hope you will forgive me for adding personal knowledge here, but the bad blood was nothing to do with redaction and everything to do with money. Julian Assange was briefly the most famous man in the world for a while and had not yet been tarnished with the allegations arranged in Sweden. Rights to an Assange book on Wikileaks and a biography were potentially worth millions to the authors. Collaboration had been discussed with Leigh but Julian had decided against. The Guardian were furious. That is what really happened. It seems a good explanation of why they instead published a money-spinning book attacking Assange. It does not really explain why they published the password to the unredacted cable cache in that book.]

Fitzgerald Julian Assange stated at the Frontline Club that sources had to be protected from “unjust retribution”. Do you agree with that?
Hager Yes.
Fitzgerald He was trying to draw a distinction with categories who do not deserve protection. Informants who give false information for money, agents provocateurs, those who turn in innocents for personal motives. We have seen the press in the UK, for example, name certain informants in Northern Ireland who had played a bad part. What do you think of naming informants in those kind of circumstances?
Hager I don’t want to comment on Northern Ireland. It is all a very difficult topic.
Fitzgerald Could you comment further on the collateral murder video and the rules of engagement?
Hager The RoEs simply govern when soldiers can and cannot use force. They raise important questions. Are they correct? Do they minimise civilian casualties? Are they consistent with the laws of armed conflict?
Fitzgerald One charge related to receiving and obtaining the RoEs. Is that why you mentioned them?
Hager Yes. The soldiers always retain the base right of self-defence. There is no basis for claiming their publication poses a dire risk for the troops. It arguably leads to less conflict if people know when force will and will not be used.
Fitzgerald You affirm that when the defence asked you to put together the collateral murder video with the rules of engagement, you agreed purely on the basis that was correct and right in your own opinion?
Hager Yes.


The court then moved to its first witness with “read evidence”. It has been agreed that some witnesses whom the prosecution does not wish to cross examine will have their evidence “read” into the record without having to appear. After substantial discussions and disagreements between the lawyers this has been resolved to be a short summary or “gist” of their evidence. My reports then for this group of witnesses are the gist of a gist; in this case of the evidence of Jennifer Robinson.

Jennifer Robinson is a lawyer who has advised Julian Assange since 2010. She represented him in his Swedish legal issues. On 15 August 2017 he asked her to join him for a meeting in the Ecuadorean Embassy in London with US Congressman Dana Rohrabacher and an aide Charles Johnson. Rohrabacher had stated he was acting on behalf of President Donald Trump and would report back to Trump on his return to Washington.

Rohrabacher said that the “Russiagate” story was politically damaging to President Trump, was damaging to US interests and to US/Russian relations. It would therefore be very helpful if Julian would reveal the real source of the DNC leaks. This would be in the public interest.

Julian Assange had put the case for a full pardon for Chelsea Manning and for any indictment against himself as a publisher to be dropped on First Amendment grounds. Rohrabacher had said there was an obvious “win win solution” here and he would investigate “what might be possible to get him out.” Assange could reveal the DNC source in return for a “pardon, deal or arrangement”. Assange had however not named any source to him.


There had been three days of intense discussion between the counsel and the judge, with the United States government objecting bitterly to Mr El-Masri being heard. A compromise had been reached that he could give evidence provided he did not allege he was tortured by the US Government. However, when he came to give evidence, Mr El-Masri was strangely unable to connect by videolink, even though the defence team had been able to speak to him by video a few hours earlier. Technical staff in the court having been unable to resolve the (ahem) technical issue, rather than simply postpone his evidence until a videolink had been established – as had happened already with two other witnesses when quality issues arose – Judge Baraitser suddenly decided to raise again the issue of whether el-Masri’s evidence should be heard at all.

James Lewis QC for the US Government stated that they did not merely oppose his evidence of being tortured. They opposed the making of any claim that a Wikileaks-released cable showed that they had put pressure on the government of Germany not to arrest those allegedly concerned in his alleged extradition. The US Government had not pressurised the Government of Germany, Lewis said. Mark Summers QC for the defence said that the Supreme Chamber of the European Court in Strasbourg had already judged his claims to be true, and that the Wikileaks cable plainly and inarguably showed the US Government exerting pressure on Germany.

Judge Baraitser said she was not going to determine if the US had pressurised Germany or if el-Masri had been tortured. Those were not the questions before her. Mark Summers QC said that it went to the question of whether Wikileaks had performed a necessary act to prevent criminality by the US Government and enable justice. Lewis responded that it was unacceptable to the US government that allegations of torture should be made.

At this point, Julian Assange became very agitated. He stood up and declared very loudly:

“I will not permit the testimony of a torture victim to be censored by this court”

A great commotion broke out. Baraitser threatened to have Julian removed and have the hearing held in his absence. There was a break following which it was announced that el-Masri would not appear, but that the gist of his evidence would be read out, excluding detail of US torture or of US pressure on the government of Germany. Mark Summers QC started to read the evidence.

Khaled el-Masri, of Lebanese origin, had come to Germany in 1989 and was a German citizen. On 1 January 2004 after a holiday in Skopje he had been removed from a coach on the Macedonian border. He had been held incommunicado by Macedonian officials, ill-treated and beaten. On 23 July he had been taken to Skopje airport and handed over to CIA operatives. They had beaten, shackled, hooded and sodomised him. His clothes had been ripped off, he had been dressed in a diaper, shackled to the floor of an aircraft in a cruciform position, and rendered unconscious by an anaesthetic injection.

He awoke in what he eventually learned was Afghanistan. He was held incommunicado in a bare concrete cell with a bucket for a toilet. He was held for six months and interrogated throughout this period [details of torture excluded by the judge]. Eventually in June he was flown to Albania, driven blindfold up a remote mountain road and dumped. When he eventually got back to Germany, his home was deserted and his wife and children had left.

When he made his story public he was subject to vicious attacks on his character and his credibility and it was claimed he was inventing it. He believes the government sought to silence him. He sought a local lawyer and persisted, eventually getting in touch with Mr Goetz of public TV, who had proven his story to be true, traced the CIA agents involved to North Carolina and even interviewed some of them. As a result, Munich state prosecutors released arrest warrants for his CIA kidnappers, but these were never executed. When Wikileaks issued the cables the pressure that had been brought on the German government not to prosecute became plain. [The judge did not prevent Summers from saying this.] We therefore know the US blocked judicial investigation of a crime. The European Court of Human Rights had explicitly relied on the Wikileaks cables for part of its judgement in the case. The Grand Chamber confirmed that he had been beaten, hooded, shackled and sodomised.

There had been no accountability in the USA. The CIA Inspector-General had declined to take action over the case. The ECHR judgement and supporting documentation had been sent to the office of the US Attorney in the Eastern District of Virginia – precisely the same office that was now attempting to extradite Assange – and that office had declined to prosecute the CIA officers concerned.

A complaint had been made to the International Criminal Court including the ECHR judgement and the Wikileaks material. In March 2020 the ICC had announced it was opening an investigation. In response US Secretary of State Mike Pompeo had declared any non-US citizen who cooperated with that ICC investigation, including officers of the ICC, would be subject to financial and other sanctions.

Finally, el-Masri testified that Wikileaks’ publication had been essential to him in gaining acceptance of the truth of the crime and of the cover-up.

In fact, the impact of Mark Summers’ reading of el-Masri’s statement on the court was enormous. Summers has a real gift for conveying moral force and constrained righteous anger in his tone. I thought the testimony had a definite impression on Judge Baraitser; she showed signs not of discomfort or embarrassment, but of real emotional distress while she was listening intently. Subsequently, two different witnesses, each situated in separate sections of the court from me, both in separate and unprompted conversations with me, told me that they thought that el-Masri’s testimony had really gotten through to the judge. Vanessa Baraitser is after all only human, and this is the first time she has been forced to deal with what this case is actually about.


The United States had objected that Mr Yates’ evidence should not include description of the actual content of the Collateral Murder video. I could not hear or understand any rationale why Baraitser agreed to this, but she did so rule, and four times she interrupted Edward Fitzgerald QC while he was reading the “gist” of Yates’ statement, to tell him he must not mention the content of the video.

Edward Fitzgerald read out that Mr Yates was a highly experienced journalist who had been Bureau Chief for Reuters in Baghdad. Early on 12 July 2007 “loud wailing” broke out in their office and he learnt that Namir, a photographer, and Saeed, a driver, had been killed. Namir had left early to cover a reported conflict with militants. Yates could not work out what had happened. A minivan nearby had its front shattered; the US military had taken Namir’s two cameras and refused to release them. The report was thirteen killed and nine injured. There did not appear to be any evidence of a firefight at the scene.

Yates had attended a US military HQ briefing where he was told that a hostile group had been deploying Improvised Explosive Devices in the road. He was shown photographs of machine guns and RPGs allegedly collected from the scene. He was shown three minutes of the video. It showed [Here Baraitser cut Fitzgerald off].
Yates had subsequently submitted a request to the US military to view the whole video, which had been denied. So had requests for the rules of engagement.

When Wikileaks released the Collateral Murder video, in the video Saeed was shown for three minutes crawling and trying to get up, while the Americans watching him remotely were saying “come on buddy, all you’ve got to do is pick up a weapon” so they could shoot him again. The Good Samaritan pulled up to help and the shots were seen destroying his windscreen and car. Edward Fitzgerald kept doggedly reading out bits of Yates’ testimony as Baraitser continually asked him to stop in a manner that was almost pleading.

Yates said that when he saw the video he immediately realised the US had lied to them about what happened. He also immediately wondered how much of that meeting at USHQ had been choreographed.

Something struck Yates very hard later. He had always blamed Namir for peering round the corner with his camera, which had been mistaken for a weapon and therefore caused him to be shot. It was Julian Assange who subsequently made the point that the order to kill Namir had been given before he had peered round the corner. He vividly recalled Assange saying “and if that’s within the RoEs, then the RoEs are wrong.” Yates was glad to absolve Namir but felt a terrible burden of guilt for having blamed him all the while for his own death.

Yates concluded that had it not been for Chelsea Manning and Julian Assange, the truth of what had happened to Namir and Saeed would never have been known. Thanks to Wikileaks, their deaths had a profound effect on public opinion.

James Lewis QC stated the American government had no questions but this did not imply the evidence was accepted.


Finally, we turned to the second half of Clair Dobbin’s cross-examination of Carey Shenkman on his testimony on the history of the Espionage Act. This may seem dull, but it has actually been extremely revealing in terms of revealing US government claims of the right to use the Espionage Act (1917) against any journalist, anywhere in the world, who obtains US classified information.

Dobbin opened part 2 by asking Shenkman whether he was seriously arguing that there existed any law that precluded the prosecution of a journalist under the Espionage Act for revealing national security information. Shenkman replied that the law had components; legislation, common law and the constitution, and that these interact. There is a very strong argument that the First Amendment does preclude such prosecution.

Dobbin asked whether any case established this beyond doubt. Shenkman replied that there had never been such a prosecution, so it had never come before the Supreme Court. Dobbin asked whether he accepted that in the New York Times case, the Supreme Court had said such an Espionage Act case could be brought. Shenkman replied that some of the judges had mentioned the possibility in their dicta, but that is not what they were ruling on and they had not heard any arguments before them on the issue.

Dobbin said that the judge in the Rosen case had stated that the New York Times case might have had a different outcome if pursued under the espionage act 79/3/e and such future prosecution was not precluded. Shenkman said the Rosen judgement was an outlier and did not refer to media publication. The Justice Department had decided no further action on Rosen. Shenkman referred her to a 2007 Harvard Law Review article on Rosen. It had been dropped because of First Amendment concerns.

Dobbin tried again and asked Shenkman whether he accepted that the judgement in Rosen found the interpretation of dicta in the New York Post case did not preclude prosecution. Shenkman, who seemed to be enjoying this, said the issue had not been briefed before the Supreme Court. And the Rosen judgement had not been carried through. Dobbin suggested this meant it was arguable both ways. Shenkman replied the Supreme Court judgement in NYT was about prior restraint.

Dobbin then asked Shenkman whether he accepted the fact that the vagueness objection to the Espionage Act had been rejected by the courts in whistleblower cases. Shenkman said there were many and sometimes contradictory cases in different appellate jurisdictions. But these were all cases involving government insiders not journalists.

Dobbin then asked why Shenkman’s witness statement did not make clear that the Espionage Act had been subject to judicial refinement. Shenkman replied that was because he did not think most academics would agree with that. It had been interpreted but not refined. Dobbin said that the effect of the interpretation had been to narrow its scope. She quoted the Rosen judgement again and the Morison judgement. They narrowed the scope to leak of official information that was damaging to the interests of the United States. This was an important new test. The Rosen judgement said this was “a clear safeguard against arbitrary enforcement.”

Shenkman replied that addresses only one particular aspect of the Espionage Act, the definition of national security information, and there had been whole books written on that. Quoting one line of one judgement really did not help. Other aspects were extremely broad. The main problem with the Act was the same legal standard is applied to all categories of recipient – the whistleblower, the publisher, the journalist, the newspaper seller and the reader could all be equally liable.

Dobbin then suggested the prosecution could not be political because it was the court that decides the definition of national security information. Shenkman replied that on the other hand it is the executive that decides what material is classified, who is prosecuted and on what charges. It was not just a matter of prosecution. The Espionage Act could be shown historically to have a chilling effect on important journalism.

Dobbin then asked Shenkman whether he agreed that the provisions under which Assange were tried had never been intended to apply to “classic espionage”. Shenkman said most authorities would reject the idea of a clear and singular intent. Dobbin said that in the Morison case the judgement had rejected the argument that the provision was limited to classic espionage. Shenkman rather wickedly agreed that yes, that judgement had indeed broadened the application of the act – as opposed to refining it. But other judgements were available. Besides, she had asked him about intent. What Congress intended in 1917 and what the Morison court decided were two different things. There had been numerous successful prosecutions of whistleblowers under Obama. Plainly the courts generally accepted that these provisions apply to government insiders. There had never been a prosecution of a journalist or publisher.

Dobbin, who is nothing if not persistent, asked Shenkman if he accepted that the Morison judgement says that only provision 79/4 applies to classic espionage. Shenkman replied that the Morison judgement was a single star in the night sky among myriad points of navigation through these laws. They then got in to discussion of the views of various professors on the subject.

Now I cede to very few in my interest in the details of this case, and certainly I absolutely appreciate the fundamental threat posed by the insistence on the general application of the Espionage Act against journalists as outlined by the prosecution, above all in the current political climate; but it was now late Friday afternoon after a very hard week and I have my limits. I decided to see how many verses of Shelley’s The Masque of Anarchy I could recall instead.

When my consciousness groped its way back to the courtroom, Dobbin was putting to Shenkman that the fact that numerous potential prosecutions had been dropped, just proved the act was used responsibly and properly. Shenkman said that was to ignore the chilling effect both in general and in specific threats to prosecute. Chilling caused papers costs, delays and even bankruptcies. President Roosevelt had used the threat of the Espionage Act to suppress independent black newspapers.

Dobbin suggested that in the instances where it had been decided not to prosecute due to the First Amendment, these cases had related to responsible major media titles. Shenkman replied that this was not true at all. Beacon Press, for example, which published the full Pentagon Papers, was a small religious organisation.

Dobbin said none of the past examples resembles Wikileaks. Shenkman again disagreed. There were many striking points of similarity in different cases. Dobbin replied that Wikileaks’ sole purpose and design was to source material from those entitled to receive it and give it to those not entitled to see it. It was solicitation on a mass scale. Shenkman said she was reaching for a distinction. Similarities to the Beacon Press and Amerasia cases were obvious.

Dobbin concluded that Shenkman’s opinion and evidence was “frivolous and nonsensical”.

Mark Summers then re-examined Shenkman. He referred to the Jack Anderson case. Anderson had published entire Top Secret documents, unredacted, in time of war. He had not been prosecuted under the Espionage Act on First Amendment grounds. Shenkman replied yes, and the documents he had published were particularly sensitive communications intelligence (intercepts).

Summers referred to sentences from judgements which Dobbin had invited Shenkman to accept as “uncontrovertible statements of the law” but which were anything but. In the Morison case he pointed out that the two other judges in the case had explicitly contradicted the very sentence Dobbin had quoted. Judge Wilkerson had stated “the First Amendment interest in informed national debate does not simply vanish at the mention of the words “national security””.

Summers said above all the US government now relied on the Rosen judgement. He asked what level of court that had been. Shenkman replied that it was a district court, the lowest level of US court. And the Justice Department had decided against proceeding with it. Finally Summers said that Shenkman had stated there had never been a prosecution, but there had been threats resulting in a chilling effect. What types of people had been threatened with prosecution under the Espionage Act for publishing? Shenkman stated that in every case it was political; opponents of the Presidency, minority groups, pacifists and dissidents.

That concluded the week.


There are numerous serious questions relating to the handling of evidence in this case. I should start by saying that the government of the United States had objected to almost all of the defence evidence. They want the defence witnesses ruled as either not expert (hence the sustained rudeness and attacks) or not relevant. Judge Baraitser had ruled that she will hear all the evidence, and decide only when she comes to judgement, what is and is not admissible.

Against that we then have her decision that the witnesses can only have half an hour of going through their statements before cross-examination. That is against a US government request that witness statements should not be heard before cross-examination at all. Theoretically Baraitser agreed to this, but she let in half an hour to “orient the witness”, which gets the basic facts out there. Baraitser rejected the defence arguments that statements should be read or explained at length by the witness in court, for the benefit of the public, on the basis that the statements are published. But they are not published. The Court does not publish them. It gives copies to journalists registered to cover the trial, but those journalists have no interest in publishing them. The first two days’ witness statements were published here, but for several days they stopped. They seem to have started again on Friday, but this is not satisfactory for the public.

Next we have the specific pieces of evidence that are banned on US objection, like the details of el-Masri’s torture or of the content of the Collateral Murder video. I can understand that it is true that this court is not judging if el-Masri was tortured – in fact that is now established by the ECHR. But plainly his story is relevant to Wikileaks’ defence of necessary publication to prevent crime and enable judicial process. The fact is that the USA wants to avoid the political embarrassment and media publicity of el-Masri’s torture and the events of the Collateral Murder video being detailed in court. Why an English court is complying in this censorship is beyond me.

I am deeply suspicious of the “breakdown” of the videolink making el-Masri’s evidence in person “technically impossible” after days in which the US government tried to block that evidence. I am also deeply suspicious of the strange fact that unlike other witnesses with video problems, there was no rescheduling. Video and sound quality has been deplorable for several defence witnesses. In a world where we have all got used to videocalls this last few months, the extraordinary failure of the court to operate everyday technology is a level of incompetence it is difficult quite to believe in.

Finally and more importantly, what constitutes evidence?

Lewis consistently and repeatedly quotes the words of Luke Harding and David Leigh to witnesses, more or less every day, yet Leigh and Harding are not in the witness box to be cross-examined on their words. As you know, I am absolutely furious that Lewis has been allowed to repeat Harding’s words about the conversation in the El Moro restaurant to witness after witness, but that John Goetz, who was actually part of the conversation and an eyewitness, was not permitted by the court to testify on the subject. That is absolutely ludicrous.

Finally, we have the affidavits submitted by Kromberg and Dwyer on behalf of the US government. These are apparently treated as “evidence”. Lewis specifically categorised Dwyer’s proof free assertion in Dywer’s affidavit that informants had been harmed, as “evidence” this had happened. But how can these affidavits be evidence if the authors cannot be cross-examined on them? One of the defence counsel told me on Friday that Kromberg will not be made available for cross-examination, as though they had just been told of that. It is not right that an affidavit full of highly dodgy statements and propositions should be accepted as evidence if the author cannot be challenged. The whole question of “evidence” in this case needs a fundamental rethink.

On another point, I was very pleased Nicky Hager testified under oath that in the cables he redacted “strictly protect” designation of names was used to prevent political embarrassment, as the prosecution has repeatedly claimed that the 134,000 unclassified and/or redacted cables in the original limited mass cable release by Wikileaks included names marked “strictly protect”. This is not a security classification. As someone who operated the near identical UK system for over 20 years and held the very highest levels of security clearance, and frequently in that period read American material, let me explain to you. Any material which contained the name of someone who would be at risk of death if published, or which would create real and acute danger to the national interest, would by very definition have been classified “Secret” or “Top Secret”, the latter generally relating to intelligence material. All of the Chelsea Manning material was at a level of classification below that.

Furthermore as Daniel Ellsberg pointed out, and I was very well used to, there exists separately to the classification a distribution system which limits who actually gets the material. The Manning material was unlimited in distribution and therefore available literally to tens of thousands of people. That again could not have happened if it contained the dangers now claimed.

“Strictly protect” is nothing to do with security classification, which is what protects national security information. As Hager said, its normal use is to prevent political embarrassment. As in Australasia, it is a term largely used to protect their secret political assets. Here is an example from a Wikileaks cable which I believe is one of those in the specific release which the prosecution is citing.

As you can see, nothing whatsoever to do with the safety of informants in Afghanistan. Much more to do with other objectives.

I am very glad Hager did raise the real use of “strictly protect”, because I have been waiting for the right moment to explain all that.

So that is my account of Friday, published on Monday. It is perhaps fortunate that normally I don’t have the luxury of time in publishing the reports. Otherwise they might all ramble on at this length.

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148 thoughts on “Your Man in the Public Gallery: Assange Hearing Day 13

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  • Leonard Young

    Excellent reporting as usual Craig. One of the most significant points in this evidence concerns The Guardian’s appalling turn-coating when they realised Assange was not going to roll over and give them exclusives or a cosy deal. From that point on the Guardian started publishing nasty, spiteful articles on Assange that were so obviously sour grapes, and do so even now. Hero to zero in a few hours.

    I will never forgive the Guardian for this disgraceful behaviour.

    • iain

      To this day the Guardian refuses to apologise for their fake front page story about Paul Manafort visiting Julian in the embassy. That story was made up by Luke Harding, whose words are now being treated as gospel in the court, used by the prosecutor to try and bury Julian..

      • Rhys Jaggar

        That’s the problem with UK justice: you cannot compel someone to give testimony where they must testify under oath and with the punishment of 5 years plus in clink if they lie.

        So journalists can just lie, lie and lie again and as long as they refuse to ever testify in a court of law, no-one can stop them doing so.

    • PW

      Interesting indeed the story of how the Guardian newspaper, full of praise for Julian Assange as a hero, ended up reviling him. I’m grateful for this explanation of how it happened.
      Last week I bought a copy of the Guardian, something I have not done for years. There was no coverage of the current trial at all. Compare this with the lengthy coverage here.
      There is some procedural stuff occasionally on their cost-free on-line version, in one case focussing on Julian’s protests from the closed-off “dock”. Their approach seems to be to ignore the trial as much as possible. I cannot think that they will have reported Friday’s proceeding in any detail.
      Is anyone taking the Guardian and can comment?

      • Jon

        The Guardian did cover (briefly) the first two or three days of the hearing in the print version, while the prosecution were going through their case; but as soon as defence witnesses started to get the upper hand occasionally, the coverage vanished.

    • Tom Welsh

      “I will never forgive the Guardian for this disgraceful behaviour”.

      With respect, that’s rather like “never forgiving” a skunk for spraying. It’s wiser and far more effective to keep well away from skunks.

  • iain

    Seems to he a parallel universe down there if Luke Harding’s words are being treated as key evidence by prosecution and judge. How can they fail to be aware that he is notorious for making up stories about Julian Assange?

    • porkpie

      How can they fail to be aware that he is notorious for making up stories about Julian Assange?

      Not having a dig at you iain, but what difference would that make to these fuckers?

      • david

        Harding was honoured with the “Plagiarist of the Year” award by Private Eye in 2007, as you won’t read in his “strictly protect” Wikipedia entry (check the Talk page though).

    • Tom Welsh

      “How can they fail to be aware that he is notorious for making up stories about Julian Assange?”

      That is why his words are being treated as key evidence.

      • Rhys Jaggar

        Well, it is up to the defence to make sure that they can challenge such statements in court. Isn’t it?

  • Mist001

    I have to say, that Mr. Murray’s stamina throughout all this is impressive. I’m younger than he, and I couldn’t have kept up with the court business alone, let alone reported it here.

    And yet, he’s managing to do both.

    VERY impressive.

    • Rhys Jaggar

      The stamina is really about the standing in line to be let into the public gallery, rather than the length of proceedings per se. That is what makes each day so long, after all….

      • Ian

        If you’ve ever sat through a long court case, you will know that the mental stamina required to keep focussed on lengthy, often arcane, technical discussions is demanding. Not to mention Craig’s need to note and remember much of the detail. That is a very impressive feat of mental stamina which far outweighs climbing stairs. And then he has to compose an article out of a forest of information. He deserves a lot more credit than you are willing to give him. It is an impressive feat of endurance and decidation.


    The US is not looking good. The more it tries to prosecute [persecute more like] Assange and Manning the worse it looks.

    Thank you again for doing this vital work. It draws the ire of powerful forces but thankfully your courage is not lacking.

    • Tom Welsh

      It has now become crystal clear to everyone that the US government has no scruples and no respect for law of any kind. In its frantic efforts to prevent anyone from being allowed to reveal any of its revolting and cynical cruelty, it is anxious to use as much of the trappings of law as may be compatible with absolute certainty of conviction.

      When the US government wants to extract Mr Assange from the UK government’s luxurious hospitality, it is happy to use the appearance of law in the form of extradition proceedings. But as soon as the actual rules of law begin to hinder it, it discards them – and eventually even the pretence of adhering to them.

      Eventually, with its back to the wall, it threatens the German government with unspecified vengeance if it dares to serve legal arrest warrants on CIA officers who are wanted for unspeakable crimes. And it threatens the very members and officers of the International Criminal Court for daring even to consider well-founded charges against those same criminals.

  • Muscleguy

    Thank you for all your efforts, including climbing those stairs Craig. Lewis sounds like an absolute swine. I doubt I could have sat as quietly as even Julian has. I would have been ejected and banned by the court. I have been a jury foreman (criminal theft and endangerment) so I can behave in court. But not in a travesty kangaroo court.

    I don’t hold judges in awe, just like I don’t hold professors all in awe, i have known and do know a lot of them. I know too much of how the networks work in choosing what sort of chaps get to be judges. Being a Sheriff in Dundee means you did not go to one of the best private Edinburgh schools.

    The defence brief in our case had an old and patched robe. Clearly legal aid work even back then did not pay well. The Fiscal’s man was sleek in contrast. The defence brief tried gamely, not helped by his client who we convicted on both counts. We would have been up for the evidence offered but it didn’t appear. The chaos in which some people live (myself included at times) is awful.

    I’m being fast tracked into a tutoring job, that has been chaotic. I give a trial presentation to check my style, knowledge and ability to teach down to the required level at 07:00 tomorrow morning. My start will doubtless not be as early as yours. I will present on cardiac structure and function at International A Level. I read a lot of syllabuses. Tomorrow evening I do Nat5 Bio & Chem. All this so UC can dock my money by 63p in the £. We beneficiaries pay the highest marginal tax rate in the land. I work for less than the minimum wage.

  • Ian T-W

    Feel free to ramble on. Greatly enjoy hearing your perspective on these matters. Wish there were no such need.

    • Mary

      Correction. Craig does not ‘ramble’, that’s if you are referring to him.

      If only there were journalists working for the MSM who had Craig’s skills and qualities. Excellent accounts.

      The details of the torture of Mr el-Masri are particularly shocking. All of this horror of the wars on brown skinned people carried out in our name by the likes of Bush and Blair is again being revealed. Bush and Blair should be in the dock at The Hague and not Julian Assange at the Old Bailey.

      I used to be proud to be British. No longer.

      • glenn_uk

        Craig was referring to himself with that description. Maybe you should have read his piece before leaping in to judge those that actually bothered to do so?

        So that is my account of Friday, published on Monday. It is perhaps fortunate that normally I don’t have the luxury of time in publishing the reports. Otherwise they might all ramble on at this length.

        If you apologised for being wrong and judgemental, it would be a first. The apology, that is.

      • Ian T-W

        i should have put quotation marks around “ramble on” to show that I was referencing Craig’s own self-deprecating remarks in this article. i thought others would readily pick up on the reference as glenn_uk did. I can now see that I was mistaken. My apologies.

          • Tom Welsh


            That said, I understand the impulse to leap in and defend Mr Murray against even the appearance of criticism.

            More and more, I am coming to see Mr Assange as a secular saint. When I contemplate the disgraceful treachery of the media who lapped up his material and then turned viciously on him, I seem to hear the baying of the crowd, “Rather give us Barabbas!” The allocation of roles seems very natural – indeed, almost heaven-sent.

            On one side Barabbas, the robber and murderer.

            On the other side Jesus, the wise, just man seeking only to help his fellow-men and make the world a better place.

            In that context, it’s also pretty clear which role Mr Murray is playing: one of the evangelists. Perhaps St John?

        • glenn_uk

          @Ian T-W:

          You have no need to apologise for someone else’s complete failure to bother even looking at what she was judging you on.

          The only apology necessary is Her own, but it will not be forthcoming, because She is perfect, incapable of error. This amazing perfection is only to found with a few select individuals and of course Herself. You will rapidly find yourself outside this select group if you dare to be critical in even the slightest way, however lightly implied, so watch yourself!

  • np

    Craig: “I decided to see how many verses of Shelley’s The Masque of Anarchy I could recall…”

    Here’s one for the ages:

    Rise like Lions after slumber
    In unvanquishable number.
    Shake your chains to earth like dew
    Which in sleep had fallen on you—
    Ye are many—they are few.

  • Cascadian

    “James Lewis QC stated the American government had no questions but this did not imply the evidence was accepted.”

    Can someone please explain to me what it has to do with him (James Lewis)? Surely it is the judge who decides whether or not evidence will be accepted and taken into consideration in her judgement.

    What is going on here?

    • Friday

      This is ordinary legal parlance. He means the evidence has not been agreed by the prosecution. The implication is that the judge cannot simply take the evidence as is. She must weigh it up as against the general thrust of the prosecution case before deciding whether she agrees with the witness or not. If the evidence was “accepted” then the judge would not conduct such an exercise and would simply take the contents of the witness’s statement as fact.

      While I’m here, another point of interest is the issue of whether allegations of torture or descriptions of the collateral murder video can be read onto the record if they are not agreed by the prosecution. For whatever reason, Lewis has clearly been given the strongest of instructions to resist any such attempt. I suspect that Baraitser is worried about the prospect of opening up satellite litigation on this issue and the time that this might take up. It may be that she believes the details of the torture and the video are not ultimately important to her in reaching the decisions she needs to reach.

      Some will see that as an outrage. Perhaps they are right. What a judge or lawyer sees as an effective time saving mechanism may look like a major injustice to those observing.

      If one thinks the issue through: the defence want the evidence in because (a) it is emotive and speaks to their righteousness as a cause, (b) it shows the US in a deeply bad light, (c) the truth of the claims were established by acts (leaking, publishing) for which the US is seeking to prosecute Assange. The latter is the most important, legally. I think it is enough if Baraitser accepts that these leaks were in the public interest (I can’t see a way out for the prosecution here – of course this is true) and she need not consider individual claims to be true to come to such a conclusion.

      As for the frustration with the prosecution refusing to ask the one attendee of the fateful dinner, of which we have heard so much, any questions on the issue, I think this is a delightful feather to add to the defence cap. I’m sure one of the silks already has some lovely arguments going in his head about how the prosecution have not properly stated their case, that they have intentionally deprived the court of the opportunity to draw informed conclusions and are, in essence, asking for a judicial favour without doing the proper cross examination etc etc. They would be entitled to invite the judge to dismiss out of hand the whole allegation that Assange made those remarks.

      On a final note, Assange likely does himself no favours by speaking out during proceedings. I don’t blame him though. Not one bit.

        • Ingwe

          As I alluded to in a post last week, the real key to the unfairness of the procedure, is the fact that Kromberg’s evidence, by way of affidavit, is not to be subject to cross-examination. Unlike all the defence witnesses, who have been subjected to aggressive cross-examination by prosecution counsel, indeed, their claims to be expert witnesses challenged, Kromberg is not appearing and won’t be cross-examined.
          The judge should give the warning, usually given in trials where a witness’s evidence is not tested, that the weight of the evidence may be discounted.
          The defence are having to present their case with the major weapon available to them, the ability to reveal the lack of veracity and internal inconsistencies of witness evidence, disabled.
          Justice is not only not being seen to be done, injustice is fully on display.

          • Ingwe

            And as any trial lawyer will tell you it is cross-examination, in an adversarial system, that is critical to test the evidence. Kromberg and probably others’ prosecution evidence will be remain untested and on the court record.

      • Tom Welsh

        “On a final note, Assange likely does himself no favours by speaking out during proceedings. I don’t blame him though. Not one bit”.

        From a narrow, amoral, legalistic point of view that may be so.

        I know that, as I read Mr Murray’s account of Mr Assange’s Biblical rebuke to the court, I felt the hairs rise on the back of my neck. A man imprisoned, shackled, loaded with every instrument of oppression, who can still rise up and denounce his oppressors with overwhelming moral authority.

        And afterwards, as Mr Murray informs us, the court complied meekly with Mr Assange’s demand. Maybe honesty and conscience are not quite dead – even in an English courtroom.

  • AlexT

    As always a most excellent and important reporting.

    I must say I am a little surprised (for the lack of a stonger word) you don’t give more importance to the whole “pardon vs informant details deal” proposed by the Trump administration via Rohrabacher.

    Admittedly it is somewhat peripheral to the extradition hearing but most definitely newsworthy. I’m sure you have something to say about it. If nothing else it is not clear why this did not go through ? Did Assange flat out refuse (it seems not) or did the US balk at his demands (full pardon for Manning and himself if I understand correctly) ?

    • Annie McStravick

      Rohrabacher stated later in interviews that he had not been mandated by Trump, or by anyone connected to him, to meet with Julian, and that he acted on his own initiative and at his own expense. Who knows if that’s true or not.

      • AlexT

        Well I guess anything is possible.

        To be honest I don’t see Rohrabacher flying out to London and making such an offer without at least floating it with the White House.

        In any case I seems no one disputes it occurred, so it begs the question as of what happened next (was it considered by Assange ? negotiated ?). I would have have expected more details from Craig – or at the very least a remark that he did not want to further discuss this point.

    • SA

      If Assange agreed to disclose the name of the DNC leaker that would be the end of Wikileaks as any future would be leakers would Never trust Wikileaks.

        • SA

          There is a lot of principles here to just take a pragmatic approach. Doesn’t really matter if they are alive or dead if they are betrayed. Also this is a sort of plea bargain, not real justice.

  • Sean Healy

    Congratulations on your excellent journalism this week. I cannot recall ever being more impressed by the diligence, intelligence and integrity of a reporter.

  • Mazza

    The next time the prosecution brings up David Leigh and Luke Harding’s dodgy quote to a witness, their response should be a loud: “John Goetz was there and states Assange said no such thing!” If the prosecution tries to cut them off they should just keep going but louder. The judge would reprimand them but at least it gets heard. On that point, can’t the defense somehow state this important fact in court? Not perhaps by the rules of the game but then maybe they need to sail a bit closer to the wind and bend the rules some. There must be a way for them to slip it in which although not strictly permitted still gets it out there before the inevitable reprimand. Might be worth taking a small hit to land a bigger one back.

    • Geoff S

      While I agree with the sentiment, the practicality is that Baraitsar would, in all likelihood, just have any such outburst stricken from the record.
      With no MSM coverage, the comment would be lost, save for blogs such as this, but then we all know that John Goetz disputes the Luke Harding version of events.

      I think probably more likely that they’ll use it to add weight to an attempt at appeal.

      • Mazza

        Thanks. I see what you mean. I guess it would have an impact if there was a jury.

        With regards to the appeal, I must be missing something, as surely the court will simply find against Assange in the first case with no leave to appeal, and when this ‘no leave to appeal’ is appealed against, a ‘safe pair of hands’ will be lined up and ready to go to turn down Assange’s appeal against appealing. With so little media attention, would there really be an outcry? And even if there was, once he was on a plane would the UK state care?

        Apologies if this is a bit of a rehash of a question I asked on an earlier post but I’m yet to be enlightened on it so would welcome anyone’s feedback. I just have a bad feeling once this is over he’ll be whisked straight off.

  • james

    thanks so much craig….

    regarding this passage in your commentary – “The fact is that the USA wants to avoid the political embarrassment and media publicity of el-Masri’s torture and the events of the Collateral Murder video being detailed in court. Why an English court is complying in this censorship is beyond me.” it seems to me at the top echelon of uk and usa power, there is a group who work together to produce results like this… in fact, it was no coincidence that in the lead up to the iraq war, blair and bush were the 2 peas in the pod pushing for this war… the uk and usa have been tied at the hip for a very long time and this is more proof of it… and, there is nothing, i repeat nothing democratic about any of it either.. it is the antithesis of transparency which these same halls of power continue to take for granted…

    • james

      it is called a frame-up… the uk-usa have become increasingly known to work together in this manner…

  • Sean_Lamb

    “Lewis We say your understanding is wrong. On 25 August Wikileaks published 134,000 cables including some marked “strictly protect”. What is your opinion on that?”

    Hmmm, how come no one in the media mentioned this?

    Here is Wikileaks announcement on September 2 (early morning UK time)

    Here is an archived snapshot of from October

    “z.7z Decrypted Wikileaks Archive z.gpg File September 1, 2011 (368MB)”

    Having said that Wikileaks were releasing a lot of cables in the week of August 25 -27. I can’t say to what extent they were redacted or if not redacted if any informants were exposed.



    “03:40 PM Today’s second batch of thousands of cables from U.S. embassies in South Korea, Laos, Bangladesh, Sri Lanka, Thailand, Japan, East Timor, Philippines, Vietnam, Burma, Singapore, Equatorial Guinea, Chile, Colombia, Ethiopia, Tanzania, Bolivia, Mali, Brunei, Mauritius, United Kingdom, Niger, Eritrea, Congo, Kenya, Czech Republic, Romania, Mozambique, Nigeria, Luxembourg, Sierra Leone, Uganda, Burundi, Namibia, Lativia, Estonia, Croatia, Democratic Republic of Congo, Argentina, Angola and Peru has just been published!”

  • John Monro

    Thanks again, Craig, for your time, effort and expertise. The time and effort must be very hard on you, but of course what is most valuable here is your expertise. You really do know about the machinations of secret government agendas, the Official Secrets Act, the behaviour of CIA and MI5 operatives, the scheming of governments and their collusion. It was part of your very world for a while, but you should never have been there, because firstly you’re rather more intelligent than those you worked for, and secondly, very much more moral. And you’re definitely not rambling. You do have to be interested and a bit knowledgable oneself to read your full account, but we are grateful for your pandering to our need to be fully informed –

    I was delighted to read that Nicky Hagar was called to give evidence for the defence – he’s a local hero of mine. I live in NZ and he has been a thorn in the flesh of the establishment for many years, like you, and like Julian. He is New Zealand’s best known and most effective independent investigative journalist ( he has won awards from overseas, though not in NZ of course!!), and like Julian, he suffers the disdain and dismissal by so many of the local main stream media – in particular a very horrible right wing extremist shock-jock opinionator called Mike Hosking, whose expressed dislike of Nicky is visceral. Yet it was Mike Hosking who just this week has been found guilty by the local Broadcasting Standards Authority of employing misleading statistics in regard to the Covid pandemic relating to Italy and Iceland – in the latter case he totally misunderstood what they signified and was wrong by two orders of magnitude!! The matter was compounded by the broadcaster who employs him trying to defend him by saying that his broadcast was only opinion (implying then he doesn’t have any requirement as a broadcaster to base his “opinion” on anything factual) Sorry, I diverge, but it is important, because like Assange, the media, and it’s not just the execrable Mike Hosking, have managed to marginalise Nicky Hagar and demean his character and his worth. If you are interested, check up on the internet about Nicky Hagar, he got himself into hot water with the devious National administration in his book “Dirty Politics” – his house was illegally raided by the police for his troubles, and he successfully sued them. . Nicky Hager’s last investigation, published in a book called “Hit and Run” in which he and a fellow reporter described a botched raid on an Afghan village by NZ special forces in that country, in which a number of civilians were killed, including a child. The military and the then Minister of Defence denied this continually, the National government in power at the time refused any enquiry, the media mostly ignored the matter, but the now Labour government has held the Burnham enquiry, vindicating most of the claims made in the book but being very reticent in meeting out any really effective criticism. The military and the minister got off really lightly, because it wasn’t what happened that became the issue, but the continued lying and the cover up. (as always)

    The evidence of Khaled el Masri was shocking. I hadn’t previously heard of him. Has this matter ever appeared in the mainstream media? And now it has been a matter for review here in the UK, will any media outlet relay this appalling injustice? I’ve now read about the case in Wikipedia and elsewhere. I wonder what it might take to convince Judge Baraitser to stop the proceeding and throw the whole case back in the face to the prosecutors? One thing that must be in the back of her mind is that her conduct of this hearing, if the extradition is approved, will be subject to review by a higher court. There appears to be so much dubious process that her own conduct could come under some intense scrutiny, for while the defence may feel constrained to dealing with this during the trial, such misconduct could well feature as a major part of any appeal.

  • David G

    The NY Times managed to run its first article on the hearing in the print edition this week. Like last week’s sole web-only piece, there was nothing grossly wrong with the article considered just in and of itself.

    It had one error, identifying Eric Lewis as a prosecution witness. That was an odd mistake for anyone paying attention to make, since all the witnesses have been for the defense, but it got a correction.

    It also called this “a trial that is centered around the technically sophisticated world of hacking”. Isn’t that weasely? Reporter Megan Specia takes the one *allegation* of abortive password hacking to protect Manning’s identity (if I’ve got the latest indictment right), and through vague phrasing manages to tar Assange as a hacker in a way the Times won’t feel called upon to correct, even though the undisputed facts in this case have nothing to do with hacking.

    But the substance of the article was all about the technological and other practical obstacles to communication and access being faced by the hearing’s participants and observers. That is of course a worthy topic, but no substitute for coverage of the witnesses’ testimony, lawyers’ questioning, and rulings of the court, of which the NY Times has had, to date, none (with the possible exception of some wire-service copy on their website I’m not going to pay to read).

    • Tom Welsh

      ‘It also called this “a trial that is centered around the technically sophisticated world of hacking”. Isn’t that weasely?’

      Yes, but par for the course in an MSM journalist – especially one chosen to cover such a hearing. (“A safe pair of hands”).

      To my mind the key word is “hacking”, which of course is catnip to reporters – especially those (the vast majority) who haven’t a clue about the world of software and computer security.

      I note with disappointment but no surprise that even the trusty COED gives “use a computer to gain unauthorized access to data” or “program quickly and roughly”.

      The original and proper sense of “to hack”, of course, is simply to write programs. It can carry the implications of “quick and rough”, but the men who wrote UNIX considered themselves hackers.

      Once the word was degraded to mean “gain unauthorized access to data”, the door was wide open to a world of confusion and ambiguity.

  • Jim Moore

    Mr Murray,

    With the greatest respect for you andd what your stellar reporting on this case (and Salmond’s and your own), I wish make the following two comments.

    Firstly, the following first sentence is ambiguous enough that a reader might believe it was something Assange said, and not, as I understand, Mr Rohrabacher. Probably just needs a “said Rohrabacher” at the end.
    ‘Assange could reveal the DNC source in return for a “pardon, deal or arrangement”. Assange had however not named any source to him.’

    Secondly, be wary of assigning Baraitser any real, normal human emotions, as you have done twice in this article. In my opinion she is a pure psychopath, weaponised by the UK and USA to BTK Assange in Belmarsh.
    Psychopaths are incapable of feeling empathy, however they are extremely clever at mimicking it, along with other normal human emotions in order to fool us. We normal adults are very poor at identifying adult psychopaths.
    I expect this display of “emotion” is a bit of spin suggested to her by the PR team abetting Assange’s treatment, employed to make her not look inhuman now that the case is going (somewhat) public live, where the world can see his prosecution in all its obvious infamy. A run of dozens of consecutive acts of bastardry don’t get washed away by a couple of episodes of crocodile tears.

    • Rhys Jaggar

      Mr Moore

      The reason we are useless at recognising psychopaths is that none of us learn about psychopathy, sociopathy, its consequences and features, either at school or university. We generally only start investigating it for ourselves when we suffer terribly under the actions of one or more of those people.

      I can speak from bitter experience that if you are not a psychopath, you have no understanding of how a psychopath thinks or acts and always assign motives based on your own emotional framework until such time as you are forced to realise that the facts make that a logical impossibility.

      Psychopaths use and abuse with impunity. They demand perfection from others whilst considering anything that they do is acceptable. They simply do not consider ‘fair play’ to have any relevance in the way they ‘play the game’.

      • Jim Moore

        Adults are pretty good at recognising child psychopaths, say, under 8 years of age, before the latter learn to hide their acts and traits from being discovered. Evolution Theory indicates that Homo sapiens culled such children from the tribe for most of our 200,000 year existence because we knew the damage they caused if we let them grew up into adults, when they were also much harder to kill.
        Unfortunately for our species we stopped eliminating them about 5,000-10,000 years ago, thus allowing them to band together to enslave us to serve their lust for control over us.
        If we, the majority, don’t rise up and overthrow them very soon then it will spell the end of our species.
        I know the above sounds brutal and mostly pessimistic, but to paraphrase Conan Doyle, when you eliminate all which is impossible, then whatever remains, however unpalatable, must be the truth.

  • MrK

    Lewis Are you trying to assist the court or assist Assange? In a talk recorded at the Frontline Club, Assange stated that Wikileaks only had a duty to protect informants from “unjust” retribution, and that those who gave information to US forces for money or engaged in “truly traitorous” behaviour deserved their fate. Do you support that statement?”

    I just spent 2 hours listening to an interview by Amy Goodman of Julian Assange and Slavoj Žižek at the Frontline Club. The only negative thing I heard him say was about Ms. Egypt’s home decoration choices. Nothing about informants.

    (Source: (Frontline Club) Julian Assange in conversation with Slavoj Žižek moderated by Democracy Now’s Amy Goodman – Youtube)

    Maybe Lewis’ source is the book by Luke Harding and David Leigh.

    “Murray also challenged the WikiLeaks founder over an account in a book by Guardian writers David Leigh and Luke Harding, in which the authors quote him suggesting that if informants were to be killed following publication of the leaks, they “had it coming to them”.”

    Source: (GUARDIAN) Julian Assange claims WikiLeaks is more accountable than governments

  • Tom Welsh

    ‘Rohrabacher had said there was an obvious “win win solution” here and he would investigate “what might be possible to get him out.” Assange could reveal the DNC source in return for a “pardon, deal or arrangement”. Assange had however not named any source to him’.

    I hope he replied, “Get thee behind me, Satan”.

    • Annie McStravick

      Rohrabacher also said that the conversation went nowhere. If he had known anything at all about Julian, he would have known that he does not reveal any of his sources.

  • Tom Welsh

    “The US Government had not pressurised the Government of Germany, Lewis said”.

    Thank goodness that one of Her Majesty’s QCs would be incapable of telling a lie.

    • Tom Welsh

      “Judge Baraitser said she was not going to determine if the US had pressurised Germany or if el-Masri had been tortured”.

      Quite right too. She might have added that she was not going to “determine” whether 1 + 1 = 2, whether lead is heavier than air, or whether some people occasionally see fit to tell untruths.

      To do so would be quite redundant, as everyone knows those facts are true.

    • Rhys Jaggar

      Of course not, they just threaten influential individuals.

      No threats made about Nordstream II, are there? Not just to Germany, but to all NATO members who might not fall into line….

  • Tom Welsh

    “Lewis responded that it was unacceptable to the US government that allegations of torture should be made”.

    We should all be very grateful to Mr Lewis for so pithily summing up the whole case against Mr Assange.

    The US government does not wish any allegations of wrongdoing by it to be made by anyone under any conditions whatsoever. After all, why defend yourself against well-documented accusations, when you can simply prevent them from ever being laid?

    Whether it should be entitled or enabled to do so is a question of fundamental ethics. If a court of law refuses to allow the powerful even to be accused of wrongdoing, what is it there for?

  • Father O'Blivion

    I would certainly not write off concerns around “technical difficulties” as paranoia or conspiracy theory. Video links in the age of pandemic present a field day for those intent on manipulation of process.
    During the Alex Salmond case, Polis Scotland (or is it Polis Nicola?) were able to provide a recorded Skype interview with a celebrity witness (mysteriously given anonymity) but were curiously unable to arrange a live link that would allow cross examination. Given that the celebrity (I will refrain from naming them Mods) was a witness to the most serious charge and their identification of woman H was sketchy at best, cross examination would have been potentially critical to the outcome of the entire case.

  • Tom Welsh

    “Baraitser rejected the defence arguments that statements should be read or explained at length by the witness in court, for the benefit of the public, on the basis that the statements are published. But they are not published. The Court does not publish them. It gives copies to journalists registered to cover the trial, but those journalists have no interest in publishing them”.

    This is at the same time technically clever and morally disgusting.

    The media can argue that they have no duty to publish any material that they do not judge to be of interest to their readers. (It may be of huge interest to the readers, but the media managers are the judges of that).

    However the court has a moral and legal duty to publish all relevant information about the case, so that the public at large sees and understands what is being done in the courtroom.

    In this instance the court has pretended to delegate its (moral and legal) duty to the media, who can argue that it is up to them to make a purely commercial decision on whether to publish.

    Neat. And horrible. Exactly the kind of trick that would delight Goebbels or Himmler. Or the CIA or MI6.

  • Stephen Morrell

    Thank you Craig for all your efforts in producing the gory detail of this travesty and the heroic resistance to it.

    It needs to be stressed over and over again that it was entirely due to the Guardian hacks Leigh and Harding who appear to be the real chief ‘witnesses’ for the prosecution and who brought about the publication of informant names.

    Also what needs to be raised repeatedly in this kangaroo court is the overwhelming evidence (not despite but because of it being sub-judice in Spain and prosecuted by the Spanish government) of the intensive efforts of the CIA (via Sheldon Adelson and the Spanish ‘security’ firm cut-out) to grossly violate Julian Assange’s legal rights. The enormity of these efforts and the fact that they were conducted with full US state approval makes the break-in of Daniel Ellsberg’s psychiatrist’s office appear as a minor, petty misdemeanour. This alone should have stopped this kangaroo court travesty in its tracks — an all-round disgrace on a par with the kakistocracy perpetrating it.

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