Your Man in the Public Gallery: Assange Hearing Day 18 118

It is hard to believe, but Judge Baraitser on Friday ruled that there will be no closing speeches in the Assange extradition hearing. She accepted the proposal initially put forward by counsel for the US government, that closing arguments should simply be submitted in writing and without an oral hearing. This was accepted by the defence, as they need time to address the new superseding indictment in the closing arguments, and Baraitser was not willing for oral argument to take place later than 8 October. By agreeing to written arguments only, the defence gained a further three weeks to put together the closing of their case.

But this entire hearing has been conducted in effective secrecy, a comprehensive secrecy that gives sharp insight into the politico-economic structures of current western society. Physical access to the courtroom has been extremely limited, with the public gallery cut to five people. Video link access has similarly been extremely limited, with 40 NGOs having their access cut by the judge from day 1 at the Old Bailey, including Amnesty International, PEN, Reporters without Borders and observers from the European Parliament, among many others. The state and corporate media have virtually blacked out this hearing, with a truly worrying unanimity, and despite the implications of the case for media freedom. Finally, the corporations that act as internet gatekeepers have heavily suppressed social media posts about Assange, and traffic to those few websites which are reporting.

I am reminded of the words of another friend of mine, Harold Pinter, in accepting the Nobel Prize for Literature. It seems perfectly to fit the trial of Julian Assange:

It never happened. Nothing ever happened. Even while it was happening it wasn’t happening. It didn’t matter. It was of no interest. The crimes of the United States have been systematic, constant, vicious, remorseless, but very few people have actually talked about them. You have to hand it to America. It has exercised a quite clinical manipulation of power worldwide while masquerading as a force for universal good. It’s a brilliant, even witty, highly successful act of hypnosis.

Harold sent me a copy of that speech printed for the ceremony, with a kind dedication that I knew was by then painful for him to write as lines of ink shot uncontrollably across the page. After he died, I had it framed and it hangs on my study wall. That was a mistake. When I get back home to Edinburgh, I will break the frame and get the pamphlet out. It needs to be read, often.

The closing arguments are the part of any trial which the media is most likely to report. They sum up all the evidence heard on both sides and what might be drawn from the evidence. To have these simply submitted on paper, without the drama of the courtroom, is to ensure that the hearing will continue to be a media non-event.

The timetable which has been accepted is that the defence will lodge their closing arguments in writing on 30 October, the prosecution will reply on 13 November, with the defence able to make a further response by 20 November purely on any legal questions; Baraitser will then deliver her judgement in January. She made plain that she would not accept any further submissions based on developments in the interim, including the US Presidential election.

Friday was yet another day when the process was as important to the result as the evidence heard, if not more so. The day had started with discussion over a defence attempt to submit two new statements from two new witnesses. Both were psychiatrists with expert knowledge of the US prison system. Previous witnesses, both psychiatrists and US attorneys, who had testified for the defence had been criticised by the prosecution as not having direct knowledge of the specific prison, ADX Florence, Colorado, in which Julian would serve his sentence if convicted.

The prosecution had provided two affidavits on conditions in the prison, one from US Assistant Attorney Gordon Kromberg dated 20 August 2020 and one from a prison psychiatrist named Leukefeld dated 3 September 2020. Now it is a very strange feature indeed of these extradition hearings that the defence have no right to cross-examine witnesses who are US federal employees. Gordon Kromberg has submitted five separate affidavits, containing much which is disputed hotly as to fact, but he cannot be cross-examined. Nor may Leukefeld be cross-examined.

Fitzgerald made the point that the defence had to respond to this prosecution evidence somehow, as it could not be cross-examined. He stated that as it had been submitted by the prosecution with the last four weeks, it had taken the defence a little time to find expert witnesses who were in a position to contradict, and then to take their evidence. The defence now had two excellent witnesses with personal knowledge of ADX Florence, and wished to enter their evidence. The defence accepted that because Baraitser had stated the trial will end next week, there would not be time to cross-examine these new witnesses. But then, the prosecution witnesses could not be cross-examined either. As Fitzgerald put it “the prosecution do not have a divine right to cross-examine our witnesses when we do not have any right to cross-examine their witnesses.”

For the US government, James Lewis QC “strongly objected” to this new evidence being submitted. He said the defence had more than a year to prepare these statements and kept trying to prolong the hearing. He said that the defence witnesses did not have the authority of the US government witnesses, and they needed to be cross-examined because many of the defence “experts” were not really expert at all. If these witnesses were called, he would insist on the right to cross-examine and that would extend the hearing.

Having heard the lawyers, Judge Baraitser yet again read out a ruling from her laptop which had been written before she heard either Lewis or Fitzgerald speak. Entirely predictably, she ruled that the defence statements were not admissible, as being too late. The defence “had had a fair opportunity to investigate”. Defence witnesses must be liable to cross-examination. These proceedings had lasted too long already and there must be an end to new evidence. “As a matter of fairness a line must be drawn”, she intoned. She seemed particularly pre-occupied with the notion of “fairness”, which apparently almost always entails ruling against the defence.

For the first time in the course of these hearings, Baraitser did look up briefly from her pre-prepared judgement to insert a reference to something Fitzgerald had said in court, that one possible approach might be that the new defence evidence could simply be cited as though it were an academic article. But only to dismiss it.

So, no closing speeches and two key witnesses not admitted.

We then moved on to the next leg of this very peculiar procedure, in which “case management” always trumps justice, with another defence evidence statement of which an agreed “gist” is simply read into the record, with no cross-examination. Under this procedure, which Baraitser expressly initiated to save time, where the defence will agree, witness statements are whittled down simply to those facts which are uncontested, and a “gist” or edit of that edit is read out, with the whole redacted statement entered into the court record.

The defence have allowed themselves to be too easily browbeaten into submission on all of this “time saving”, which is of course pursued by the judge and the US government in the interests of having as little embarrassing information aired in public as possible, and closing down the hearing quickly. One consequence of the rather hangdog defence approach to this is that, after the first very effective reading of key passages from el-Masri’s evidence, subsequent “gists” read into the record have been raced through, as though the defence realise this evidence has been reduced to a pointless formality, with no expression or weight in the reading and at a speed that far exceeds my ability to take an accurate note.

Like Thursday’s evidence from John Young of Cryptome, the witness statement of Jakob Augstein was important evidence that went to the fact that it was not Assange or Wikileaks who first published the unredacted material, and Augstein added additional information that Assange had tried to prevent it. Before Der Freitag had published its article of 25 August 2011, which revealed that both the password key and the file were out there, Assange had telephoned Augstein, editor of Der Freitag:

This evidence negates the main thrust of the prosecution case, so much so that I cannot understand why the defence have agreed to having it slipped into the record in a manner nobody notices.

The other interesting point about Augstein’s evidence is that it pointed squarely at the possibility that it has been Daniel Domscheit-Berg who, in defecting from Wikileaks, had been responsible for the emergence of the encrypted but unredacted cache on the net.

We then came on to the only witness who was actually heard in person on Friday, Patrick Eller, by videolink from the States. He was to address the accusation that Assange conspired with Chelsea Manning to crack a hash key password and obtain the documents which Manning leaked, and/or to help Manning cover her tracks. Securing Eller was rather a coup for the defence as there could not be a better expert witness on this particular subject. Eller is CEO of Metadata Forensics and a Professor teaching forensic evidence at the US Army Law School. A 25 year veteran, he was commander of the US Army digital forensic investigations unit at US Army Criminal Investigation Command in Virginia.

I am not going to use my usual technique of reporting through Eller’s evidence and cross-examination chronologically, because the subject matter does not lend itself to that, being both highly technical and delivered in a very disjointed fashion. This was partly due to the approach by James Lewis QC, counsel for the US government, who adopted a policy of asking long runs of technical questions about the operation of the computer systems, most of which were basic, irrelevant, and both required and got the simple answer “yes”, and then after a run of a dozen to twenty “yeses”, Lewis would throw in a more dubious proposition. This did once work when he got a “yes” to the proposition that “a great hacker can crack a great cypher” by this system of inducing impulsive repetition of “yes”. Lewis went on to claim that Assange had once self-described as “a fantastic hacker”.

I am not attempting to hide the fact that there were passages of Eller’s testimony in court which I simply did not understand. When I get a new laptop, it takes me days to work out how to turn it on and I am yet to find how to transfer any information from an old one. There are very definitely readers who would have done a much better job than me of reporting this, but then I was there and you were not. So these, for me, were the key points of Eller’s evidence.

With respect to the Jabber conversations between Chelsea Manning and “Nathaniel Frank”, which form the basis of the charge of aiding the commission of computer intrusion, there is no forensic evidence that “Nathaniel Frank” is Julian Assange, or indeed any single individual.

The “Hash key”, or encrypted half of a password, which Manning had requested assistance with cracking could not have been cracked with the technology available in 2010. It was “impossible” and “computationally infeasible”, according to Eller. This could not have been done with a brute force attack, dictionary attack or rainbow table. In cross-examination Lewis explored this at great length and read from a 2009 article on a vulnerability in Windows XP precisely with regard to the hash key system. Eller replied this was well known, but Microsoft had fixed it with a patch well before the events in question. That made it in practice impossible for the code to be cracked using one half of the hash key. Lewis did not query this and quickly moved on; it appeared he knew of the patch all along.

Perhaps Eller’s most telling evidence was that Manning had in fact already downloaded the bulk of the material passed to the Wikileaks dropbox before initiating the conversation with Frank at all. Manning had full access to the SIPRnet, or classified infranet of material up to secret, under her own username, and had already been downloading using a program called wget. Furthermore, Manning had already been taking steps to protect her identity by rebooting from a Linux CD thus evading several Windows security features. That would have been at least as effective as downloading from the FTP account if preventing detection were the goal.

Manning therefore had no need of help from “Nathaniel Frank”, either to obtain the classified documents or to cover her tracks, although the problem of downloads being traceable to the IP address would remain. But this would not have been solved anyway by Manning’s interest in logging in to a File Transfer Protocol account. There was much discussion as to whether the FTP account would or would not have admin privileges, but as Eller was insistent it would neither have increased her access to classified material nor have better enabled her to cover her tracks, and that they could not have cracked the password with the hash key half anyway, I did not quite understand where that discussion was leading.

One particularly jolting bit of information from Eller was that the SIPRnet from which Manning had downloaded all the material was open to “millions” of users. Eller’s final key point was that all of his evidence was consistent with the findings of the prosecution at Manning’s court martial, and presumably thus with the investigations of his old forensic team. Some of the lines taken by Lewis – including that it was in fact possible to crack the password from the half hash key – are inconsistent with the US prosecution’s own forensic evidence at the Manning court martial.

Eller’s evidence is an example of those occasions where I know the comments below the line will be much more informed than my own efforts!

Finally and ominously, Baraitser heard arguments on whether the full medical records of Assange from the doctors and psychiatrists who had given evidence should their public be released to the media. They have been requested by the press. The records contain a huge amount of background and many intimate details of Julian’s childhood and relationships which are in evidence but were not given in open court by the doctors. Both defence and prosecution opposed release, but Baraitser kept referring to “open justice”. You will remember that earlier this year, Baraitser decided that it was in the interests of “open justice” to release to the media the identity of Julian’s partner Stella Moris and her children. That too was against the wishes of both prosecution and defence.

That a judge so intent on shutting down or refusing to hear defence evidence is suddenly so preoccupied with “open justice” when it comes to hurting Assange by release of his deeply personal information, is a great irony. Baraitser will rule on this on Monday and I hope humanity has prevailed with her.

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118 thoughts on “Your Man in the Public Gallery: Assange Hearing Day 18

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  • Paul

    Imagine if Assange was before, say, a Russian or Chinese court. The Australian government would demand consular representation inside the court and the media would echo these demands on continuous loop.

    Thanks for the brilliant coverage.

    • Gerald

      He’d get a fairer trial or at the very least no worse than this farago. To my mind the British can no longer whine about the Russian or Chinese judicial systems whilst it conducts such obvious show trials where US interference and influence is so nakedly apparent. They obviously feel so confident to do this because they now have complete capture of the UK MSM. Swine, the lot of them.

      • Deb O'Nair

        “…the British can no longer whine about the Russian or Chinese judicial systems…”

        I think they will manage, the British are shameless hypocrites.

        • Ort

          Reply to Deb O’Nair

          Yes, exactly. I was about to comment that if “… the British no longer whine…” etc., it will be because they’ve escalated the whining into full-bore (in every sense) bumptious bluster.

          At least the British ruling class and their official spokespersons will retreat further into bottomless hypocrisy and doublethink. As we’ve seen in every alleged crisis from the Iraq War to the Skripal farce, the more patently false, absurd, and preposterous the official narratives are, the more strenuously the officials promote them.

    • Alan Edward Tattersall

      Craig, will there be an appeal? And is there a chance that the Justice system will redeem itself in a higher court? Even though Assange’s criminal incarceration will continue in the meantime.

  • Geoff S

    In the Kromberg evidence, apart from the stuff brought up in Craig Murray’s recounting, I notice he also makes the statement: “The ADX is the most secure prison in the federal system. It is designed to safely house the BOP’s most violent, predatory, and escape-prone inmates”

    Given that the prosecution would have a hard time showing that Julian Assange fitted into any of those categories, does this not also go to evidence of the vindictive and political nature of this?

    • Ort

      Assange’s conjoint US/UK persecutors will blithely aver that Assange’s “bail-jumping” foray into his treacherous and ill-fated political asylum in the Ecuadorian Embassy is incontrovertible proof that Assange is “escape-prone”. Thus, this is an appropriate administrative decision that isn’t the slightest bit vindictive or political.

      It’s slanderous, malicious nonsense, of course, but remember that the Western governments have acquired vast experience in “fixing facts to fit the narrative”, and reflexively spew forth scurrilous Big Lies as naturally as the Big Liars breathe.

  • VinylFlunkie

    i think like a lot of people, i am just too astonished to ‘leave a comment’ during this superb yet horrifying account of the disgusting death throes of justice in an English Court (gosh i wish this were the 6th century)…. But ridiculously to some degree as its just my small story I feel (sorry, look away) that i should share my own surreal experience of facing a magistrate or three.

    The only time I have been up in a jury-less court (CSA family kangaroo court,) the magistrates were so removed from modern reality, (which I guess is the point of their usefulness), these three tweed wearing smirkers, who didn’t understand the ‘benefit system’ “no neither do I!”, “nor I Caroline!, I’ve never even considered it”… as they dismissed my carefully written defence of my right to eat, “we cannot take as evidence political points of view” (the CSA didn’t take into account my student loan repayments nor the debts incurred relating to modern academia etc…, as far as they were concerned I could pay them 60 % of what was left over and not see my superb daughter because it cost 16.50 on the train at that time. The banality of evil.)

    Now, forget my experience, I fought hard and found a tunnel, and some twenty years later I am wiser, happier and pretty much exhausted! My understanding of the processes in the power field is that these empty shells of vindictiveness do not themselves produce the stupidity of anti justice, in fact the further this journey goes, (is it like chicken on the A12 maybe?, but instead its ‘how far can we take this before reality gives up, and we can just get on with our li(v)es… I don’t know anything, but during the past 44 years of my life i have watched this world (what else is there to do? and i have learned to be strong in the face of that banality).

    This trial cannot end with the extradition as a finality. There is after all reality and thus an open opportunity, call it truth, which for me is a normal human condition. But there is such a banality, such a coldness, a self supporting system of anti-virtue perpetually administering anti virtue, the lie will continue to fill our mouths our eyes our ears our time online as we read the truth piercing words of a man sitting inside the volcano, who himself is due to be defiled and denigrated, (as they do to the truth every day, every second) for his honesty and love and good humour.

    It may appear that I am rambling, and yes, red wine was involved earlier. So i’ll just sum it up now: Justice is not a logical process to magistrates who have no contact with reality. In fact the chair gives them the singular opportunity to defend the lie, the one that they believe, the banality of emotionless anti-intelligence. Second, reality is always there, it is a constant, provable and generally its visual/emotional ground is solid and equal, justice is fertile there. Justice becomes progressive, talented minds would thrive in such a world that would accept universal love (the fair trade economy if you will lolz) as the grounds for progress. (Yes i have also smoked some weed). So finally thirdly, (might be 4 though I’m rambling like a drunk MP in the late bar, one more Helena, but don’t tell my wife) this injustice will find fertile ground in reality, as is natural, it is the course of true events. The stupid decision by the Bilderbummers to silence the mute white blanket of the racist ‘anglo saxon billionaires of the MSM’, and the recent sabotage of this outrageously rational and critical and truly reflective blog, is but a cheap nail in the thick rubber tyres of the truth truck. It appears effective in myopia but reality doesn’t even register the prick.

    I may be wrong, but I am a human too, Mr Assange is an exemplary researcher who must have been born with a distinct sense of virtuous intelligence. He will not be silenced, its impossible. How long has this been going on? Far too long. Free Julian Assange now and face reality you banal ignorant idiots, death awaits you just like me, you water the desert with poison now, the people will finally understand this. Murderers and pound shop tyrants, undisclosed tax haveners, you have everything to lose if you silence the earth.

    If you’ve read this far and are annoyed, well you could have stopped reading. This blog helps me reflect upon the incredibly irrational world that fills my eyes my ears and my mouth, so its natural that my outpouring should reflect this terribly confusing state of affairs. I hope i don’t do this again.

      • Vimto Bingo

        Thanks Bevin. It appears that a kind moderator has edited the structure of my outpost. I’m even more drunk now than before, nicely, listening to a very lovely jazz playlist on the whatnot. I finally subscribed and I’m back on the journey into knowledge of time through music. Of course it’s not for everyone, adventure, enquiry, pain, love, fear (everyone knows fear) (love is to be feared) (love will destroy fear) (so fear resists love). (Stoned) I’ve skipped a few transient analogies there because I still can’t remember what I’m listening to. Sportify! So called because you could, in effect, dance all day forever, from now-on until an cosmic emergency demands a hastily formed state enforced ‘dopamine enhancing diet’ and exercise regime (as long as you can pay in warm clothes) which will actually be a good thing. Having a limitless stream of music has been an essential observable phenomenon since The Brotherhood of Man. Save all your kisses for me. Is there a finer devotional artifice still to be Unassailed by the smirking over stimulated gif sniffers. Were you at Stonehenge in 84??? (Side note I was but I was just 10.) it’s now impossible to run out of music to dance to. This technical marvel only just arrived and few people look at its overreaching spiritual potential bar the Russians. I’m taking to these places as I did to libraries when allowed to leave the house. It’s vast and beautiful. Knowledge is key to judgement, it’s important to remain apart from judgement without application of knowledge unabridged undefiled unexamined. Unless we want to live the rest of our lives being exemplary in the discharge of our duties having knowingly delivered Great Britta Garbo a harsher blow to the national identity than the way quite a lot of foriengees internalised their rational concerns regarding this phenomena of both sublimeand in your face duality. Anyway, thread lost! the English were portrayed in De Capriod’s Titanic as the voice of pessimistic rationality to the point of idiocy. Notwithstanding the class biases. Which I think went a bit far, In all honesty’s baskets I’d be willing to wager 4 Guinness and a handful of dried flowers that I’ll forget the point and wish you all a good night sleep.
        Humanity, Ingenuity, Sobriety
        free Julian now and continue your banality
        It’s all in the open
        Like a turd on the milkfloat.
        Regardless milk floats are a rare thing
        The analogy can be parachuted into
        A goodnight and god bless
        Sorry I just had to write something
        I’ll try to resist tomorrow
        Kafka would blush

  • DeQuincey

    “To have these simply submitted on paper, without the drama of the courtroom, is to ensure that the hearing will continue to be a media non-event.”

    Can anybody comment on whether the European inquisitorial legal system relies on “the drama of the courtroom” to get its message across?

  • Brianfujisan

    Great work Craig… I doubt Very many of the Blog’s readers would do a better job.

    Julian’s Dad Put a Nobel winning slant on the Iraq Infanticide – in which 500.000 small infants died …because of Evil ( U.S… Western Sanctions )

    John Shipton – ” 500.000 infants, that’s a Million parent’s, Four Million Grandparent’s, All shedding tears ”

  • Deb O'Nair

    Every time the odious Tony Blair appears on TV I always think of the words of Harold Pinter. It’s hard not to see the people in charge of the US and UK today as nothing more than utterly vile and as such they should be repugnant to any normal society, alas the societies of the US and UK today are in no way normal and deliberately so. It seems that the US and UK are criminalising all forms of genuine political opposition and dissent, as can be seen in the UK practically every day. What nightmare awaits will be revealed in the fullness of time but I think they are getting their populations ready for either WW3 or complete economic collapse.

  • Susan

    “The other interesting point about Augstein’s evidence is that it pointed squarely at the possibility that it has been Daniel Domscheit-Berg who, in defecting from Wikileaks, had been responsible for the emergence of the encrypted but unredacted cache on the net.”

    Yes, I agree with your observation, Craig. I believe that Domscheit-Berg is every bit the traitor as Leigh and Harding. I vividly remember when D-B defected from Wikileaks, because it was at that point he started his vicious, vindictive smearing of Julian, and Wikileaks in general. At the time I was perplexed and saddened by his ‘turncoating’. But now I wonder if he had been a plant. Regardless, I knew then that he was an active and willing participant in the destruction of Julian and Wikileaks. So it does not surprise me that you have speculated that D-B was also responsible for the emergence of the cache on the net.

    There were two prongs to the assault on Assange: One was the vicious, vindictive smearing of him personally, and the second was the smearing of Wikileaks, its methods, and the emergence of the unredacted cache. So now we know that D-B was a participant in both prongs. I say this not because the knowledge of D-B’s participation in Julian’s demise will make any difference to the outcome of this extradition hearing. I say this because when the book is finally written, the role of D-B and his treachery will be acknowledged and recorded for history.

  • Alan Heffez

    The Extradition of Julian Assange by the British justice system at the behest of the US government, as presaged in a song written by Bertolt Brecht in 1919.

    “The Drowned Girl” ***

    When she drowned and began the slow descent
    From the canal into the broader stream,
    The lustrous sky shone like mother of pearl
    As if it meant to appease the girl.

    The passing fish nudged her cold limbs,
    Weeds and algae added to her weight,
    Clinging to her as she floated on
    Creatures and plants further slowed her down…

    As her pallid corpse began to rot,
    Little by little, God forgot her:
    First her face, then her hands, and last her hair.
    One more corpse in a corpse-clotted river.

    ***Stanzas 1, 2 & 4, initially titled “The Murdered Girl” and composed for Rosa Luxemburg, murdered and thrown into the Landwehr Canal on January 15, 1919 by the Freikorps

    • giyane

      Alan Heffez

      God most certainly did not forget her and God is most certainly recording the efforts of Johnson’s unelected junta to hide the truth about US UK IS war crimes.

  • Monster

    I have revised my opinion of the defence from not very good to downright useless. They must be trousering some cash to keep up the appearance of justice. Michael Mansfield would have stood up this Judge Dredd.

    • Sarge

      Ah yes, “emptywheel” aka Marcy Wheeler. An exemplar of the liberal Resistance lining up behind Trump whenever he pursues reactionary national security actions or hawkish foreign policy.

      Here she is back in defiant Resistance mode …
      “One of my fears is that Putin has threatened Trump he’ll unleash far right violence if Trump tries to get out of his devil’s bargain. ”

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