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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  • 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.

  • N_

    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.

    Baraitser is thinking about her own hide. Her job is doing public relations for torturers and murderers, for rabid types who don’t give a toss about blowing children to pieces and who even enjoy it – not necessarily because they enjoy it in itself (sometimes after all it might not be expedient) but because it shows them how tough and committed they are and they can have a great ol’ time ’round the camp fire that evening. She was raised Zionist, i.e. Jewish Nazi, and she has no humanity whatsoever where enemies of her interests are concerned. What scum like her hate is when what they are really like gets exposed outside their own gang. It’s called being a “shanda”. She is wondering whether if the US-Nazi case that she has helped every possible way she can collapses, there will be negative repercussions for her.

    • giyane


      I realise it’s possible the judge could be a zealot or mix with zealots . I myself only found evidence of my first wife’s strong identification with her Jewish ancestry when I came across her pencil notes in the margins if her university copy of Daniel Deronda 40 years later.

      However I wouldn’t advise making any judgement about Barsitser. I had to wait 40 years to find out something because it was so well concealed st the time, methodically concealed. I know other people about whom I have had to wait a mere 10 years to fund out the reality of their rabid Muslim extremism.

      Anyway I forgave the one because she gave me four lovely children and the other because he had been tortured. We should in any case never stand in judgement over any other human being LEST we judged.

      This is a profound psychological truth as well as being a commandment in Christianity and Islam. We do not know the workings of the inner hearts and we should never mistake someone’s background or baggage like accent or appearance for the individual person. IMHO, if I have learned anything in life and it’s no good for ourselves.

      • glenn_uk

        Why wouldn’t she have told you if she was Jewish – surely she wouldn’t have thought you might have a problem with them?

      • Monster

        The South African security services have records of the Baraitser family, patriarch Abraham Baraitser, being an active zionist group with strong connections to Israel. Indeed Vanessa’s father, Michael Baraitser, left South Africa not because of apartheid, he had servants, whom he treated the same way as the Afrikaners did. He left because he was blocked by Groote Schuur hospital, where he worked as a houseman, from more senior appointments as he lacked many of the academic and practical skills required.
        Ironically, when he arrived in the UK, he was swiftly advanced by the NHS to amazing professional heights in the field of genetics in which, on his own admission, he had no experience. All members of the family, except Vanessa, have been shown to follow active zionism.
        Source: National Intelligence Service, successor to BOSS

          • M.J.

            His interview also indicates that he became a Senior Registrar in South Africa. That’s a high position, only one rank below Consultant. But he was also interested in agriculture and an expert in antique furniture apart from being a research medic. A man of many parts!

        • giyane


          Whatever anybody’s parents did is no responsibility of their children. You can’t even say children are moulded by their parents because they might take a lifetime trying to disassociate themselves from what their parents believed. I.have to pur up with all these wrong assumptions projected onto me by the people I live with.

          How is it in Amy way helpful to load up somebody you’ve never met with the baggage of their forbears. I find that deeply repellant.

    • M.J.

      I thought a shanda was a mix of beer and 7up . Mind you, it could be a new dance invented by young people 🙂

  • M.C.

    Craig, your passionate and dogged persistence in covering this trial (along with your incredibly selfless desire to report the truth, generally) puts you up there with my greatest heroes (alongside Julian). Day 13’s report seems even more rousing than usual. Maybe it’s hearing Assange stand up and assert:

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

    I’m convinced these reports will be seen as having great historic significance in the future. That is, to the extent that they are not served to the memory-hole.

    You are doing what many of us wish we were brave-enough, talented-enough and tenacious-enough to do. I salute you (in a very non-military and non-patriotic, but very defiant way).

    • Jarek Carnelian

      Even though it may not help Julian’s case inside the courtroom to make these outbursts from the dock, he is playing a powerful joker in the court of public opinion and posterity. This is exactly the sort of thing the puppets and their masters do not want entering the public discourse. This keeps the focus firmly where it should be, on US complicity in torture, and the role of Wikileaks in unveiling it to the World. This phrase is almost a mission statement for Assange: “I will not permit the testimony of a torture victim to be censored by this court.”

      That phrase just entered the historical record. It will not easily be expunged.

      • writeon

        It would be difficult to ban Assange from his own trial because of his outburst about attempts to censor testimony about torture, as this would be hard to ignore in our strangely passive media. Once he was one of the most well-known people in the world. A ‘brand’ worth millions, yet now it’s like he doesn’t even exist anymore. How that transformation happened is worth a book in itself. It’s like internal exile or sending him off to Siberia during the Tzarist regime. Unfortunately, for Assange, Siberia would be infinitely better than rotting alive in an American hi-tech dungeon.

  • writeon

    It’s pretty obvious why the blessed Guardian won’t touch this thing with a bargepole, because they themselves are so deeply mired in it! That the prosecution repeatedly refers to a book written by their… ‘star journalist’ Luke Harding, who’s known for making stuff up to fit his… ‘storytelling’, as ‘evidence’ about Assange’s politics and attitudes to informants, is really embarrassing for them. It’s hard for them to pretend to be a courageous watchdog, when the US state keeps them so warm and cosy on their lap.

    Baraitser may be looking a bit ‘uncomfortable’ at times because it’s bleedin’ obvious that this affair and the extradition are awash with politics and arguing that it’s not about Assange’s political crimes is gonna be increasingly difficult, if not close to impossible when she rules on it. Of course the ‘judgement’ may have already been written by a ‘higher authority’ lurking behind the scenes. Still, Baraitser is in an uncomfortable position as she’s the public face of a judgement she probably has very little real control over.

    Also, there’s the tricky question of ‘torture’ and the problems linked to anyone in a position of authority, in Europe, that could be perceived as taking part in a cover-up when victims step forward to reveal their stories to the public and seek justice. Is she, Baraitser, guilty of an attempt to sweep allegations and evidence of torture by the United States, under the carpet? Arguably, her actions and statements in court, could, perhaps at some future date, under another administration, in another climate, open her up such charges herself, because under international law which the UK has signed up to, it’s her duty as a judge, not to silence or censor evidence of torture, regardless of what the Americans might think.

  • Ian

    On a related note, it may interest Craig and others to know that this government is pushing an overseas operations bill through which will limit prosecution of war crimes and torture to five years after the offence. Thus giving impunity to crimes of torture revealed some years after the fact, which many are.
    Even right wingers like Rifkind and Grieve are horrified at what it says about the UK:

    “We find it disturbing that the government’s approach … creates a presumption against prosecution of torture and other grave crimes (with only rape and sexual violence excepted) after five years. We believe that the effective application of existing protocols removes the risk of vexatious prosecution. To create de facto impunity for such crimes would be a damaging signal for Britain to send to the world.”

    And pertinent to the evidence of Khaled El-Masri, rendition will also be ‘disappeared’:

    “When the overseas operations bill was being drafted, the offence of torture was, quite properly, excluded from the provisions. Somehow it found its way back in, but it is not clear who took this decision or why. As we now know from various public inquiries, the British army used unlawful interrogation techniques in Iraq and Afghanistan, which breached the UN convention on torture. If this bill passes into law, the government will have effectively legislated to protect itself from those allegations.

    Most gravely, this includes the offence of rendition which, as well as being a form of torture, is also a grave breach of the Geneva conventions. While the government seeks to shield itself from blame, however, soldiers may well find themselves in the international criminal court, whose jurisdiction will be triggered if the British government chooses to avoid prosecuting them.”

    Interestingly, this article was written by a military legal adviser who is clearly opposed to yet another piece of Johnson/Gove legislation for the extreme right in their party and the press. Like the Internal market bill it smuggles in far-reaching legal change to the power balance between the state and legal redress, awarding themselves more power and immunity. This is direction of travel of this government, straight from the Trump playbook.

    • writeon

      How did the ‘liberal media’ in the UK come to accept, with barely a whimper of dissent to be heard, its own castration? I think the security services did it when they turned up at the Guardian and demanded that they destroy the Snowden hard-drives and the Guardian went along with it, instead of telling them to go fuck themselves! This was the symbolic ‘castration’ of the Guardian, and what’s even more extraordinary and humiliating, is that it was the Guardian’s journalists who weilded the blade themselves that cut their balls off… ouch!

      • writeon

        Of course, perhaps I should add that several of the Guardian’s leading journalists were simply ‘bought’ rather than terrified into submission. Luke Harding, as an example, has become a fucking millionaire by peddling his ‘storytelling’ rather than journalism. It’s all rather disturbing and miserably sad to see. The pathetic death of the liberal media.

        It’s like the media culture is racing backwards in time and the iron shutters are coming down, similar to the years after the English Civil War, where, afterwards one had to wait centuries for a similar period of freedom of speech and the right to dissent and publish material without state censorship. What a dire thought! Are we not seeing something like that today right in the heart of London? Isn’t the media’s lack of interest and coverage really a form of voluntary censorship of an openly political trial at the Old Bailey?

        • Ian

          That may well be the case, but has little to do with the point made about what legislation the UK government are pushing through to give immunity to torture and rendition. Your observation has been made multiple times, btw.

          • pete

            If the passing of legislation to limit the time for those responsible for war crimes were enacted then would this allow those awaiting their time in the dock, to like Blair and Kissinger, get away with what they did?

            On the Assange trial one thing at least remains clear, any reputation for honesty for the Grauniad has been irreparably damaged in general and in particular for their “reporter” Luke Harding, who doubtless now has a future career in spy fiction.

        • giyane


          Yes, and from all places and all times st the anniversary of the setting out of the Mayflower.

          This is a powerful metaphor for ‘ O tempera, O mores’. The law may be dusty and dry but those tomes of case Law on Friday afternoon are dynamite for those politicians in a digital age that have come to think there’s an easy delete button for our culture and their past.

        • UreKismet

          Ian is not being ‘grumpy’ he is expressing his disgust at the way some posters divert attention away from an important issue by racing to be first to respond then completely ignore the issue raised in the original post by upturning a barrel of blather in an effort to drown out the OP. I have had this happen several times in a blog I frequent and I no longer accept that there is an innocent explanation for this appalling breach of netiquette.

          The issue is that englanders are pushing legislation through their parliament which will prevent the prosecution of the most appalling of all crimes – war crimes, by giving torturers, rapists and murderers a free pass if they can keep their head below the parapet for 5 years. The Starmer stooge will likely stay schtum.
          Given how long it generally takes for the real facts about wars to surface, in essence this legislation if passed would mean that war crimes will have been legalised.
          How does it go? I am disappointed but not surprised that england has again shown great alacrity to serve the proprietors of the empire it once owned .
          The quiet around this trial is not an unfortunate accident it can only happen because the vast majority of englanders are happy for it to happen this way. Blaming the media for all this is nonsense.

          I have observed the hypocrisy whereby people claim to oppose something which deep down they support but want to absolve themselves from too many times to believe so many humans can possibly lack that degree of self-awareness.
          I suspect Mr Assange believes something similar – he knows that it doesn’t matter a damn what the defence says or does he is going to be extradited no matter what, hence the outbursts for posterity.

          • Ian

            Indeed, Ure, that was a weird response. But it does beg the question of the value of posting topics here, when all you get is a self-interested screed on the hobby horses that people love to endlessly parade.

          • Stewart

            “The issue is that englanders are pushing legislation through their parliament which will prevent the prosecution of the most appalling of all crimes”

            It’s not the population that is demanding this legislation, ure
            that’s really not how things work here
            it’s being sneaked through while nobody is looking
            do not conflate the gang of puppets and crooks in “government” with the british people – the vast majority of whom are decent and law-abiding

      • Brian c

        There was never much to castrate as far as I remember. Maybe it was different in earlier times but since the 90s the Guardian has been the voice of the Labour Right and Clintonism, representing careerist charlatans as the conscience of western society.

        • giyane

          Brian c

          There once was a man called Andrew Gilligan.
          They’d have been much wiser not to rake up all this 2003 stuff. Why not just give Julian a prize and let sleeping dogs lie?

          Maybe this is just the mindless perversity of Trump’s obsessive reversal of everything Obama.

          Does Trump’s nationalism come from his Scottish side?

          • Dawg

            The line “There once was a man called Andrew Gilligan” evokes a news editor’s poem about the Hutton Inquiry:

            There once was a man called Andrew Gilligan,
            He asked a man “Why did they kill again?”
            Little did he know soon blood would spill again,
            Naughty Andrew Gilligan, begin again …

            Tabloid sheets we need to fill again.
            Will they take the thin blue pill again?
            Vote the evil shits back in again!
            Come back Andrew Gilligan, to shill again.

    • Rhys Jaggar

      Well, every MP who allows that repulsive piece of legislation through is personally responsible for any repercussions.

      I would not waste time on the right to human rights of any MP voting that sort of legislation through.

    • Stevie Boy

      This legislation is being introduced purely to protect the Government and the MoD. It certainly will not protect the men and women who serve in the armed forces, in fact it will increase the risks they face. The Assange case illustrates perfectly what this legislation is about – protecting the torturers, the renditioners, the psychopaths and the complicit politicians.

      • Ian

        I think that is exactly the point the military man is making. Plus, of course, as a country we can hardly complain or protest about torture in other countries when we give up our own responsibilities.

    • N_

      A 5-year limitation on prosecution of military personnel for torture will be mild compared to what’s coming next.
      They’re excluding sexual violence? But that’s a common feature of torture.

      Now that Britain has become a fascist country, this isn’t the first example of effectively indemnifying those in authority from “liability” for what would otherwise be serious crimes, including causing deaths. That was also in the Coronavirus Act enacted in March.

      As if a statute is needed to end “vexatious” prosecutions! Anyway who are they trying to stop being vexatious – the Crown Prosecution Service or the victims? Have there been some private criminal prosecutions? There are other ways to close those down.

      • Robert

        My understanding is that the exclusion of sexual violence means that crimes involving sexual violence can be investigated beyond the 5 year limit. ???

  • Geoff Reynolds

    Judge Ratbraiser does not have an ounce of compassion for those the American’s cut to shreds in a hail of firepower……..
    Ratbraiser does not deal with the collateral damage and does not give a flying F..CK about anybody other than the bent politicians that take human lives on a global board game.

    Every time she blinks or shows emotion to the true horror of those she seeks to protect, her bonus will diminish accordingly.

    Ratbraiser looks human but so did all the other perpetrators of evil mentioned in our history books, Josef Mengele, the Angel of Death, for instance.

    Judge Ratbraiser is evil personified, about as far from being a human being as actually possible.

    …………………she never had to clear up what remained of the shattered, unrecognisable corpses torn apart by the weapons that she seeks to protect……..

    This is not a court of law, merely an exercise to punish those who seek to make the world aware of those responsible for the most heinous acts perpetrated against the living……….

    Well done, Craig! ….even her arsehole is starting to pucker!

  • Rhys Jaggar

    Mr Murray

    I would not blame the court per se for the video evidence links being poor or absent. I learned nearly two decades ago that if security services want to interrupt your communications, they will. They will cut off landline telephone calls repeatedly, especially if you joke to your conversation partner that ‘the Israelis are listening in’ (three times I said that, three times we were cut off!)

    What is going on is the US flexing its muscles to pervert the course of justice. They can be no pussyfooting around this: the USA is degrading proper legal procedure when its own actions globally the past 20 years (let alone the past 75) have been consistently concerning the wilful, spiteful and downright inhuman murder of innocents by US soldiers with absolutely not consequences for their behaviour whatsoever. To say that the USA is not a fit and proper entity to determine legal due process is rather like saying that Saddam Hussein should not have chaired the International Criminal Court….

    This whole charade proves that the US Government is no better than the Stalinist USSR in the 1930s, wilfully perverting the course of justice at every turn with absolutely no remorse, conscience nor consideration for the longer-term consequences of so doing.

    You are doing the world a great service by providing this reporting, since it is absolutely clear that the MSM is colluding NOT to report it. No jury, no media reporting is what the US Government wanted.

    No jury, but coruscatingly damning reporting to a small band of readers is what they are getting.

    Keep up the good work.

    • N_

      @Rhys – The US government too is to some extent taking a “no pussyfooting around” attitude, as evidenced by this:

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

      Normally that would be taken to be an extremely arrogant way to address a judge, and the barrister would get slapped down for it. “Public interest immunity” certificates can’t be issued to a British court by a foreign government, and if the US government can’t “accept” Julian Assange producing evidence that is relevant to his defence, then the US government should be told that it can choose between lumping it and withdrawing its application.

      Does Trump want Assange in a US prison by 3 November? I’m not sure he does, given what he has said about the US war against Iraq and also how he has repeatedly taken dumps on the US military.

      • giyane


        Trump has no idea what being Commander in Chief means.
        He often claims he has just stopped a war by intervening against the military.
        If you have a system that is trigger happy which must constantly be rescued by an alert President why not just re-train his military to stop being assholes?

        It gives him a photo opportunity as top dog for Conservatives as well as appealing to Liberals who hate war.
        He’s a damn good estate agent.

        Maybe this raking up the past is just a neat way to remind voters how much they hate the war mongering of the Democrats Clinton Obama.
        I hate it too, especially in relation to Donkey Starmer.

        So this court case is all about electioneering, there is hope that Assànge is not the real target .
        The real target is the Swamp.

        • giyane

          In fact, that explains why the warmongering British msm have been told to say nothing about this case, because it is an opportunity for all the war crimes of the last 20 years to be discussed and aired. The MSM know that doing that will massively help Trump. So they have been commanded to stay silent.

  • Eoin

    “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”

    Indeed, I remember Craig reporting at the start of the extradition hearing that Baraitser was claiming the statements are available online. But, as you say, the courts don’t publish them. Journalists can get them, though there can be issues with the release of the statements and the courts might refuse, though any decent journalist would present an objection to the judge.

    How would Baraitser know the statements were available online at all? As I said previously, maybe she spends her spare time Googling [and having any references or images of herself deleted]

    • Josh R

      this idea of these documents being public except the public can’t actually find them seems increasingly cheeky* each time I read & consider it.

      *I know “cheeky” is not the word for it, but the injustices are too numerous and brazen in this case, leaving me incapable of settling on a more appropriate adjective.

      No excuse for it, let alone in the 21st Century for fks sake!

      Has anyone come across soft copies online?
      If not, does anyone know which hacks might be in possession of hard copies?
      Am quite inclined to badger anyone who’s likely to have access to the statements and get copies,

      blinkin’ ridiculous state of affairs that I’m even asking a question like this.
      Hopefully I’m just being a dullard and the docs are already up & just a click away…


      • Twirlip

        I’m baffled too. I think someone has already commented on the unexplained interruption of the appearance of witness statements online. There are some statements here dated up to Wednesday 9, and some dated Friday 18, but nothing between those dates, and in particular nothing from John Goetz or Daniel Ellsberg, both of whom appeared on Day 11 (Wednesday 16):

      • Annie McStravick

        See some of the witness statements on — not produced by the court but by Bridges for Media Freedom.
        The statements of the first four witnesses (Feldman, Stafford Smith, Rogers, Timm) were published on 7, 8 and 9 September. Subsequently, no statements were published for several days, as mentioned by Craig. They started up again last Friday 18 September when those of Shenkman, Yates and El Masri appeared.
        Among the statements of 14, 15 and 16 September – not published – were those of two strong witnesses: Daniel Ellsberg and John Goetz.

  • amanfromMars

    “The US Government had not pressurised the Government of Germany, Lewis said”. …. Tom Welsh, September 21, 2020 at 09:50

    Is it a Criminal Bar barring offence for a barrister acting for a client to lie and/or wilfully misinform the court on a leading or pivotal matter? Is that perjury and a rash brazen attempt to pervert the course of natural justice, in spades?

    • N_

      It’s not perjury because he wasn’t under oath, but of course it’s a serious professional offence for a barrister to lie to or otherwise wilfully mislead a court.

  • Carolyn Zaremba

    Thank you so much, Craig, for your detailed reporting from the Court. Yours is the best and most detailed reporting on the hearings of anything I have read, and I read everything that is published by independent journalists on this case. I continue to support you financially because of this.

    • Susi

      You are such a star, Craig. I salute your stamina and wit. You are a true friend to Julian and mankind.
      Love and all the best from Germany

  • Dave

    Hager No, of course not. However…
      Lewis No. Stop. You answered.”

    My impression from the TV, and this bears it out, is some courts have a real problem with the oath to tell “the truth, the WHOLE truth and…” Would be interesting to see any witness attempt to withdrew their evidence on oath on the grounds that they are being railroaded and unable to tell the whole truth.

  • JohninMK

    More comments in the US. First para setting the scene.

    “It is dangerous to reveal the truth about the illegal and immoral things our government does with our money and in our name, and the war on journalists who dare reveal such truths is very much a bipartisan affair. Just ask Wikileaks founder Julian Assange, who was relentlessly pursued first by the Obama Administration and now by the Trump Administration for the “crime” of reporting on the crimes perpetrated by the United States government.”

    Or with comments

  • Crispa

    That Ruth Smeeth was providing information to the American government even before being elected as an MP has not gone unnoticed – though to pursue her involvement would take the thread along a different path. Perhaps another time.

  • Hope

    I’m also annoyed about the lack of witness statement releases. I’m not sure why they stopped releasing statements until Friday and didn’t release any today, although they may not be ready as of yet. I think that if witnesses still have copies, they should release them.

  • grayslady

    Craig, once again thank you for your superb reporting. I know some of the legal disputations between Shenkman and Dobbin must seem tedious to you, but to those of us across the pond who have some understanding of the U.S. legal system, the detail in the questions and responses is incredibly revealing. I don’t know if Dobbin was simply trying to be obnoxious or truly doesn’t understand how U.S. law works in practice (or maybe both), but a couple of telling weaknesses in her questioning:

    1. While the statements of dissenting justices may be interesting, they don’t represent legal precedent; and in the U.S., precedent is everything when arguing a case.
    2. The U.S. District Federal Court system is a patchwork of fiefdoms, and it is almost unheard of for a competent lawyer to argue a Constitutional case based on District precedent, much less argue that a District case is dispositive law. If you want to argue a case in the 7th District, you had better have 7th District precedent, not 9th District precedent. The people in the midwestern states (7th District) don’t think that people in the 9th District (far western states) share the same opinions and experiences on legal issues, and vice versa. Shenkman was quite correct to bat down Dobbin on the Robson case, since Robson is only considered settled law in the Eastern District of Virginia–not in other District Courts–and Summers was pitch perfect in driving this home on re-examination. That Dobbin concluded with an ad hominem attack shows, to me, that she knew she was outlawyered by Shenkman.

    One opportunity that I think may have been missed regarding what truly constitutes “national security” in document classification is the egregious case of the U.S. versus Thomas Drake, former senior executive of the NSA, who the government also tried to charge under the Espionage Act. The government actually classified documents possessed by Drake at the time of his arrest that had been unclassified when he took them home to work on them. Shenkman was correct that document classification in the U.S is totally political, because politicians have ultimate control over what gets classified and at what level. The President, for example, has the absolute authority to unclassify any document, not the Supreme Court. That’s about as political as you can get.

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