Your Man in the Public Gallery – Assange Hearing Day 8 232


The great question after yesterday’s hearing was whether prosecution counsel James Lewis QC would continue to charge at defence witnesses like a deranged berserker (spoiler – he would), and more importantly, why?

QC’s representing governments usually seek to radiate calm control, and treat defence arguments as almost beneath their notice, certainly as no conceivable threat to the majestic thinking of the state. Lewis instead resembled a starving terrier kept away from a prime sausage by a steel fence whose manufacture and appearance was far beyond his comprehension.

Perhaps he has toothache.

PROFESSOR PAUL ROGERS

The first defence witness this morning was Professor Paul Rogers, Emeritus Professor of Peace Studies at the University of Bradford. He has written 9 books on the War on Terror, and has been for 15 years responsible for MOD contracts on training of armed forces in law and ethics of conflict. Rogers appeared by videolink from Bradford.

Prof Rogers’ full witness statement is here.

Edward Fitzgerald QC asked Prof Rogers whether Julian Assange’s views are political (this goes to article 4 in the UK/US extradition treaty against political extradition). Prof Rogers replied that “Assange is very clearly a person of strong political opinions.”

Fitzgerald then asked Prof Rogers to expound on the significance of the revelations from Chelsea Manning on Afghanistan. Prof Rogers responded that in 2001 there had been a very strong commitment in the United States to going to war in Afghanistan and Iraq. Easy initial military victories led to a feeling the nation had “got back on track”. George W Bush’s first state of the union address had the atmosphere of a victory rally. But Wikileaks’ revelations in the leaked war logs reinforced the view of some analysts that this was not a true picture, that the war in Afghanistan had gone wrong from the start. It contradicted the government line that Afghanistan was a success. Similarly the Wikileaks evidence published in 2011 had confirmed very strongly that the Iraq War had gone badly wrong, when the US official narrative had been one of success.

Wikileaks had for example proven from the war logs that there were a minimum of 15,000 more civilian deaths than had been reckoned by Iraq Body Count. These Wikileaks exposures of the failures of these wars had contributed in large part to a much greater subsequent reluctance of western powers to go to war at an early stage.

Fitzgerald said that para 8 of Rogers’ report suggests that Assange was motivated by his political views and referenced his speech to the United Nations. Was his intention to influence political actions by the USA?

Rogers replied yes. Assange had stated that he was not against the USA and there were good people in the USA who held differing views. He plainly hoped to influence US policy. Rogers also referenced the statement by Mairead Maguire in nominating Julian for the Nobel Peace Prize:

Julian Assange and his colleagues in Wikileaks have shown on numerous occasions that they are one of the last outlets of true democracy and their work for our freedom and speech. Their work for true peace by making public our governments’ actions at home and abroad has enlightened us to their atrocities carried out in the name of so-called democracy around the world.

Rogers stated that Assange had a clear and coherent political philosophy. He had set it out in particular in the campaign of the Wikileaks Party for a Senate seat in Australia. It was based on human rights and a belief in transparency and accountability of organisations. It was essentially libertarian in nature. It embraced not just government transparency, but also transparency in corporations, trade unions and NGOs. It amounted to a very clear political philosophy. Assange adopted a clear political stance that did not align with conventional party politics but incorporated coherent beliefs that had attracted growing support in recent years.

Fitzgerald asked how this related to the Trump administration. Rogers said that Trump was a threat to Wikileaks because he comes from a position of quite extreme hostility to transparency and accountability in his administration. Fitzgerald suggested the incoming Trump administration had demonstrated this hostility to Assange and desire to prosecute. Rogers replied that yes, the hostility had been evidenced in a series of statements right across the senior members of the Trump administration. It was motivated by Trump’s characterisation of any adverse information as “fake news”.

Fitzgerald asked whether the motivation for the current prosecution was criminal or political? Rogers replied “the latter”. This was a part of the atypical behaviour of the Trump administration; it prosecutes on political motivation. They see openness as a particular threat to this administration. This also related to Trump’s obsessive dislike of his predecessor. His administration would prosecute Assange precisely because Obama did not prosecute Assange. Also the incoming Trump administration had been extremely annoyed by the commutation of Chelsea Manning’s sentence, a decision they had no power to revoke. For that the prosecution of Assange could be vicarious revenge.

Several senior administration members had advocated extremely long jail sentences for Assange and some had even mooted the death penalty, although Rogers realised that was technically impossible through this process.

Fitzgerald asked whether Assange’s political opinions were of a type protected by the Refugee Convention. Rogers replied yes. Persecution for political opinion is a solid reason to ask for refugee status. Assange’s actions are motivated by his political stance. Finally Fitzgerald then asked whether Rogers saw political significance in the fact that Assange was not prosecuted under Obama. Rogers replied yes, he did. This case is plainly affected by fundamental political motivation emanating from Trump himself.

James Lewis QC then rose to cross-examine for the prosecution. His first question was “what is a political opinion?” Rogers replied that a political opinion takes a particular stance on the political process and does so openly. It relates to the governance of communities, from nations down to smaller units.

Lewis suggested that Assange’s views encompassed the governance of corporations, NGOs and trade unions. They could not therefore be considered as “political opinion”. Rogers replied that the province of the political in the last fifty years or so now includes much more beyond the strict governmental process. Assange particularly discusses relationships between government and corporations and the latter’s influence on government and society as part of a wider ruling establishment.

Lewis then asked “is simply being a journalist a person who expresses political opinions?” Rogers replied not necessarily; there were different kinds of journalist. Lewis than asked “So just being a journalist or publisher does not necessarily mean that you have political opinions, does it?” Rogers replied “not necessarily, but usually.” Lewis then suggested that the expression of editorial opinion was what constituted a political view in a journalist. Rogers replied that was one way, but there were others. Selection of material to publish could manifest a political view.

Lewis then rattled off a series of questions. Is transparency a political opinion? Does Assange hold the view that Governments may never hold secrets? Should that transparency enable putting individuals at risk? There were more.

Rogers replied that these questions did not permit of binary answers.

Lewis then took Rogers to Assange’s speech to the Stop the War Coalition, where he stated that the invasion of Poland at the start of the Second World War was the result of carefully concocted lies. Did Prof Rogers agree with that view? What political opinion did that view represent? Rogers replied it represented a strong political opinion and a particular view on the origin of war. Lewis then quoted another alleged comment of Assange, “Journalists are war criminals” and asked what political opinion that represented. Rogers replied that it represented a suspicion of certain journalistic practices.

Rogers said that he had never said he supported or identified with Assange’s views. He strongly disagreed with some. But that they were coherent political views there was no doubt.

Lewis then read out a lengthy quote by Assange to the effect that strongly anti-transparency governments will always result in more leaks, followed by more restrictions and this would set up a cycle. Lewis asked Rogers what political view this could be said to represent. Rogers replied it was an interesting analysis of the working of highly autocratic systems. Their concern with secrecy leads to increased leaks which decrease their security. He was not sure if it was explicit, but he believed Assange may be positing this as a new development made possible by the internet. Assange’s thesis was that autocratic regimes harbour the seeds of their own destruction. It was not a traditional view held by political scientists but it was worth consideration.

Lewis now changed tack. He stated that Prof Rogers was appearing as a “so-called expert witness” under a continuing obligation to be unbiased. He had a duty to consider all supporting evidence. US Assistant Attorney Gordon Kromberg had submitted an affidavit explicitly denying there was any political motivation for the prosecution, stating that it is evidence based. Why did Prof Rogers not mention the Kromberg statement in his report? An unbiased expert witness would take into account Kromberg’s statement.

Rogers replied that he spoke from his expertise as a political scientist, not a lawyer. He accepted that Kromberg had made his statement but believed a wider view to be more important.

Lewis stated that Kromberg’s first affidavit stated that “based on the available evidence and applicable law a grand jury had approved the charges.” Why had Rogers not mentioned the grand jury? Rogers said that he had taken a wider view about why there was a decision now to prosecute and not in 2011, why Kromberg’s statement was being made now after a gap of eight years. This was anomalous.

Lewis then asked “I want to consider why you did not consider the opposite view. Have you seen the evidence?” At this point he was grinning very strangely indeed, looking up at the judge, leaning back with one arm wide across his chair back, in some sort of peculiar alpha male gesture. I believe Rogers’ videolink only gave him a wide view of the whole courtroom, so how much he could see of the body language of his questioner I am unsure.

Rogers said he had seen the evidence. Lewis gurned in wild-eyed triumph “you cannot have seen the evidence. The evidence has only been seen by the grand jury and not released. You cannot have seen the evidence.” Rogers apologised, and said he had understood Lewis to mean Kromberg’s affidavit as the evidence. Rogers went on to say that less than 24 hours ago he had received an evidence bundle of 350 pages. It was unfair to expect him to have a precise mental picture of every document.

Lewis then returned to a Gordon Kromberg affidavit which said that prosecutors have a code which bars them from taking politically motivated decisions. Rogers replied that may be right in theory, but was untrue in practice, particularly in the USA where a much higher percentage of senior officials in the Department of Justice were political appointees who changed with each administration. Lewis asked Rogers whether he was alleging the prosecutors did not follow the code outlined by Kromberg. Rogers replied you had to consider the motivation of those above the prosecutors who influenced their decisions. “What you are giving me is a fair representation of how federal prosecutors are supposed to do their work. But they work as those above direct them.”

Lewis repeated that the code excludes political motivation for prosecution. Was Rogers claiming that Gordon Kromberg was acting in bad faith? Rogers replied no, but he was acting under political direction. The timing of this indictment after eight years was the key. Lewis asked whether that mattered if a crime had been committed. He referred to historic prosecutions of those soldiers who had allegedly committed crimes in Northern Ireland over twenty years ago. Was it political motivation that led to new prosecutions now? Rogers said this was more about bad faith.

Lewis asked if Rogers understood what Assange was being prosecuted for. Was he being prosecuted for publishing the collateral murder video? Rogers replied no, the charges were more specific and mostly related to the Espionage Act. Lewis stated the majority of charges were focused on complicity in theft and on hacking. Rogers responded there was obviously a wider political question as to why acts were being done in the first place. Lewis stated that on the question of publication, charges only related to the unredacted names of sources. Rogers said that he understood that was what the prosecution is saying, but was not agreed by the defence. But the question remained, why is this being brought now? And you could only look at that from the point of view of developments in American politics over the last twenty years.

Lewis asked Rogers to confirm that he was not saying US prosecutors were acting in bad faith. Rogers replied that he would hope not, at that level. Lewis asked if Rogers’ position was that at a higher level there had been a political decision to prosecute. Rogers said yes. These were complex matters. It was governed by political developments in the US since about 1997. He wished to speak to that… Lewis cut him off and said he preferred to look at evidence. He cited a Washington Post article from 2013 which stated that there had been no formal decision not to prosecute Assange by the Obama administration (this was the same article Lewis had quoted yesterday to Feldstein, on which he had been called out by Edward Fitzgerald for selective quotation). Rogers replied yes, but that must be considered in a wider context.

Lewis again refused to let Rogers develop his evidence, and gave the quotes from Assange’s legal team, again as given yesterday to Feldstein, to the effect they had in 2016 not been informed charges had been dropped. Rogers replied that was just what you would expect from Wikileaks at that time. They did not know and were bound to be cautious.

Lewis: Do you accept there had been a continuing investigation from Obama to Trump administrations.
Rogers: Yes, but we do not know at what level of intensity.
Lewis: Do you accept that there was no decision not to prosecute by Obama
Rogers: There was no decision to prosecute. It did not happen.
Lewis: How could they prosecute when Assange was in the Embassy?
Rogers: That would not preclude a prosecution going ahead and charges being brought. That might be a way to bring pressure on Ecuador.
Lewis: Assange’s lawyer said there was no decision not to prosecute by the Obama administration.
Rogers: I have accepted there was no decision not to prosecute. But there was no prosecution and it was considered.
Lewis: Judge Mehta said there was ongoing investigation of others beside Manning. And Wikileaks tweeted Assange’s willingness to come to the USA to face charges if Manning was granted clemency.
Rogers: Obviously Assange and his lawyer could not be sure of the situation. But it must be understood that bringing Julian Assange to the USA for a major trial of someone who was perceived by many Trump supporters and potential Trump supporters as an enemy of the state, might be of crucial political benefit to Mr Trump.

Lewis now responded that Rogers was not a real expert witness and “had given a biased opinion in favour of Julian Assange”.

Edward Fitzgerald QC then re-examined Prof Rogers for the defence. He said that Mr Lewis had appeared to see something sinister in Mr Assange’s statement that the invasion of Poland and second world war had been started by lies. To what lies did Prof Rogers think that Assange was referring? Rogers replied the lies of the Nazi Regime. Fitzgerald asked if this was a fair point. Rogers replied yes.

Fitzgerald read the context of Assange’s statement which also referred to lies starting the Iraq war. Rogers agreed that lies leading to war was a consistent Assange political theme. Fitzgerald then invited Rogers briefly to summarise the consequences of the change of US administration. Rogers stated that under Trump, the narrative from senior politicians on Wikileaks had changed.

The Bush administration had viewed the Iraq war as essential, with the support of most American people. That view had gradually changed until Obama had won basically on a “withdraw from Iraq” ticket. Similarly the Afghan war had been thought winnable but gradually the political establishment changed their mind. This shift in view was partly due to Wikileaks. By 2015/6 American politics had moved on from the wars and there was no political interest in prosecuting Wikileaks.

Then Trump came in with a completely new attitude to the entire fourth estate and to openness and accountability of the executive. That had led to this prosecution. Fitzgerald directed Rogers to a Washington Post article which stated:

The previously undisclosed disagreement inside the Justice Department underscores the fraught, high-stakes nature of the government’s years-long effort to counter Assange, an Internet-age publisher who has repeatedly declared his hostility to U.S. foreign policy and military operations. The Assange case also illustrates how the Trump administration is willing to go further than its predecessors in pursuit of leakers — and those who publish official secrets.

Rogers agreed this supported his position. Fitzgerald then asked about Lewis’s comparison with prosecution of British soldiers for historical crimes in Northern Ireland. Rogers agreed that their prosecution in no way related to their political opinions, so the cases were not comparable. Rogers’ final point was that four months after Barr took office as attorney general, charges were increased from a single one to eighteen. This was a pretty clear indication of political pressure being put on the prosecutorial system.

TREVOR TIMM

The afternoon witness was Trevor Timm, co-founder of the Freedom of the Press Association in San Francisco, again via videolink. You can see his full evidence statement here. The Freedom of the Press Association teaches and supports investigative journalism and seeks to document and counter violations of media freedom in the USA.

Mr Timm testified that there is a rich history in the USA of famous reporters covering defence and foreign affairs related matters drawing upon classified documents. In 1971 the Supreme Court had decided the government could not censor the NYT from publishing the Pentagon Papers. There have been several instances over history where the government had explored using the Espionage Act to prosecute journalists but no prosecution had ever materialised because of First Amendment constitutional rights.

For the defence, Mark Summers QC put to Mr Timms that this was the prosecution’s case: Chelsea Manning had committed a crime in whistleblowing. So any act that helped Chelsea Manning or solicited material was also a crime. Timm replied this was not the law. It was standard practice for journalists to ask sources for classified material. The implications of this prosecution would criminalise any journalist in receipt of classified intelligence. Virtually every single newspaper in the United States had criticised this decision to prosecute on these grounds, including those that have opposed Wikileaks’ general activities.

This was the only attempt to use the Espionage Act against a person not in government employ apart from the AIPAC case, which had collapsed for that reason. Many great journalists would have been caught by this kind of prosecution, including Woodward and Bernstein for the cultivation of Deep Throat.

Summers asked about the prosecution’s characterisation of the provision of a drop box by Wikileaks to a whistleblower as criminal conspiracy. Timm replied that the indictment treats possession of a secure drop box as a criminal offence. But the Guardian, Washington Post, New York Times and over 80 other news organisations have secure drop boxes. The International Committee of Investigative Journalists has a drop box with a specific “leak to us” page requesting classified documents. Timms’ own foundation had developed in 2014 a secure drop box which they taught, and which had been adopted by multiple news organisations in the USA.

Summers asked if news organisations advertised drop boxes. Timm replied yes. The New York Times links to its secure drop box in its social media posts. Some even took out paid adverts for whistleblowers. Summers asked about the “most wanted list” which the prosecution characterised as criminal solicitation. Timm replied that multiple respectable news organisations actively solicited whistleblowers. The “most wanted” list had been a Wiki document which had been crowdsourced. It was not a Wikileaks document. His own foundation had contributed to it along with many other media organisations. Summers asked if this was criminal activity. Timm replied in the negative.

Summers asked Timm to expound his thoughts on the Senate Intelligence Committee Report on Torture in 2014. Timm said that this vital and damning report on CIA involvement in torture had been much redacted and was based on thousands of classified documents not made available to the public. Virtually the entire media had therefore been involved in trying to obtain the classified material that revealed more of the story. Much of this material was classified Top Secret – higher than the Manning material. Many newspapers appealed for whistleblowers to come forward with documents and he had himself published an appeal to that effect in the Guardian.

Summers asked if it had ever been suggested to Timm this was criminal behaviour. Timm replied no, the universal belief had been that it was first amendment protected free speech. The current indictment is unconstitutional.

James Lewis QC then cross-examined for the prosecution. He said this was claimed to be expert opinion, but did Timm know what that meant in UK law? Timm said he had an obligation to explain his qualification and to tell the truth. Lewis replied that he was also supposed to be objective, unbiased and have no conflict of interest. But the Free Press Foundation had contribute to Assange’s defence fund. Lewis asked how much? Timm replied US$100,000.

Lewis asked if there were any conditions under which the Foundation would get their money back. Timm replied no, not to his knowledge. Lewis asked whether Timm would feel personally threatened were this case to go to prosecution. Timm replied that would represent a threat to many thousands of journalists. The Espionage Act was so widely drafted it would even pose a threat to purchasers and readers of newspapers containing leaked information.

Lewis said that Timm had testified that he had written advocating a leaking of CIA material. Did he fear he would be prosecuted himself? Timm replied no, he had not asked for material to be leaked to himself. But this prosecution was a real threat to thousands of journalists represented by his organisation.

Lewis said that the prosecution position is that Assange is not a journalist. Timm replied that he is a journalist. Being a journalist does not mean working for the mainstream media. There was a long legal history of that going back to pamphleteers at the time of Independence.

This cross examination was not going so well, and Lewis reached yet again for Gordon Kromberg’s affidavit as for a comfort blanket. Kromberg had sworn that the Department of Justice takes seriously the protection of journalists and that Julian Assange is no journalist. Kromberg had further sworn that Julian Assange was only being prosecuted for conspiring to illegally obtain material, and for publishing unredacted names of informants who would be at risk of death. The government is going out of its way to stress it is not prosecuting journalism.

Timm replied that he based his opinion on what the indictment said, not on the Department of Justice press release from which Lewis had read. Three of these charges relate to publication. The other charges relate to possession of material. Lewis said that Timm was missing the hacking allegation which was central to Count 1 and several other counts. Lewis quoted an article in the Law Review of New York Law School, which said that it was illegal for a journalist to obtain material from the wreckage of a crashed airplane, from an illegal wiretap or from theft, even if the purpose were publication. Would it not be illegal to conspire with a source to commit hacking?

Timm replied that in this case the allegation appeared to be that the hacking was to protect the identity of the source, not to steal documents. Protection of sources was an obligation.

Lewis then asked Timm if he had seen the actual evidence that supports the indictment. Timm replied only some of it, in particular the Java script of the messages allegedly between Assange and Manning. Lewis said Timm could not have seen all the evidence as it had not been published. Timm replied he had not said he had seen it all. He had seen the alleged Assange/Manning messages which had been published.

Lewis said that Assange had published unredacted material which put lives in danger. That was the specific charge. Timm replied that, assuming the assertion was true, the prosecution was still unconstitutional. There was a difference between responsible and irresponsible, and legal and illegal. An act could be irresponsible, even blameworthy, and still not illegal.

There had never been a prosecution for publication of names of informants, even where they were allegedly put in harm’s way. Following the official line about harm to informants precisely due to Wikileaks’ publication of the cables, Senator Joe Liebermann had introduced the Shield Bill into Congress. It failed specifically on First Amendment grounds. The episode tells us two things; firstly that Congress considered publication of informants’ names was not illegal and secondly that neither did they wish to make it illegal.

Lewis quoted a Guardian editorial condemning the publication of names, and stated that the Washington Post, New York Times, El Pais and Der Spiegel among many others had condemned it too. Timm replied that still did not make it illegal. The US government ought not to be the arbiter of whether an editorial decision is correct or not. Timm also felt it worth noting in passing that all of those media outlets whose opinions Lewis held in such high regard, had condemned the current attempt at prosecution.

Lewis asked why we should prefer Timm’s opinion to that of the courts. Timm replied that his opinion was in line with the courts. Countless decisions over centuries upheld the First Amendment. It was the indictment which was out of tune with the courts. The Supreme Court had expressly stated that there was no balance of harm argument in First Amendment cases.

Lewis asked Timm what qualification he had to comment on legal matters. Timm replied he had graduated from Law School and had gained admission to the New York Bar, but rather than practice he had worked on academic analysis of media freedom cases. The Foundation often joined in with litigation in support of media freedom, on an amicus basis.

Lewis said (in a tone of disbelief) that Timm had stated this prosecution was part of “Trump’s war on journalism”. Timm cut in niftily. Yes, he explained, we keep track on Trump’s war on journalism. He has sent out over 2,200 tweets attacking journalists. He has called journalists “enemies of the people”. There is a great deal of available material on this.

Lewis asked why Timm had failed to note that US Assistant Attorney Gordon Kromberg had specifically denied that there was a war on journalists? Timm said he had addressed these arguments in his evidence, though without specifically referencing Kromberg. Lewis stated that Timm had also not addressed Kromberg’s assertion that Assange is not charged simply with receipt of classified material. Timm replied that is because Kromberg’s assertion is inaccurate. Assange is indeed charged with offences encompassing passive receipt. If you get to count 7, for example and look at the legislation it charges under, it does precisely criminalise passive receipt and possession.

Lewis asked why Timm had omitted Kromberg’s reference to the grand jury decision? Timm replied that it meant very little: 99.9% of grand juries agree to return a prosecution. An academic study of 152,000 grand juries had revealed only 11 which had refused the request of a federal prosecutor to prosecute.

Lewis asked Timm why he had failed to mention that Kromberg asserted that a federal prosecutor may not take political considerations into account. Timm replied that did not reflect reality. Prosecution was one prong of many in President Trump’s war on journalism. Lewis asked whether Timm was saying that Kromberg and his colleagues were acting in bad faith. Timm replied no, but there had been a story in the Washington Post that more senior federal prosecutors had been opposed to the prosecution as contrary to the First Amendment and thus unconstitutional.

Mark Summers then re-examined for the defence. He said that Kromberg presents two grounds for Assange not being a journalist. The first is that he conspired with Manning to obtain confidential material. Timm replied that this cultivating of a source was routine journalistic activity. The indictment is precluded by the First Amendment. The Supreme Court has ruled that even if a journalist knows that material is stolen (but not by him), he may still publish with entitlement to First Amendment protection.

Summers asked Timm about Lewis’s comparison of Assange’s contact with Manning to theft from an airplane wreck or illegal wiretap. Timm said this alleged offence did not reach that bar. The government does not allege that Assange himself helped Manning to steal the material. It alleges he provided help to crack a code that enabled Manning better to protect his identity.

Lewis here interrupted with a lengthy quote from one of Kromberg’s affidavits, to the effect that the government was now alleging that Assange helped Manning hack a password in order to facilitate obtaining classified information. Timm said yet again Kromberg’s affidavit did not appear to match the actual indictment. The claim there is that the password hacking “may have made it more difficult to identify Manning”. It is about source protection, not theft. Source protection is normal journalistic activity.

Summers stated that Kromberg’s second justification for stating that Assange is not a journalist was that he published the names of sources. Timm replied that he understood these facts were disputed, but in any event the Supreme Court had made plain such publication still enjoyed First Amendment protection. Controversial editorial choice did not render you “not a journalist”.

Summers asked Timm if he accepted Kromberg’s characterisation that Assange was only being prosecuted for alleged hacking and for publication of names. Timm said he did not. Counts 16, 17 and 18 were for publishing. All the other counts related to possession. Count 7 for example was for “knowingly unlawful receiving and obtaining”. That described passive receipt of classified information and would criminalise much legitimate journalistic activity. Huge swathes of defence, national security and foreign affairs reporting would be criminalised.

COMMENT

The defence have been attempting the last two days to make a rational case that this is a politically motivated prosecution and therefore not eligible under the terms of the UK/US extradition treaty of 2007 (relevant extract pictured above).

In opening argument back in February, the prosecution had run a frankly farcical argument that Article 4 of the treaty does not apply as incompatible with UK law, and an esto argument that Assange’s activity is not political as in law that word can only mean support for a particular party. Hence Lewis’s sparring on that point with Prof Rogers today, in which Lewis was well out of his depth.

Lewis primary tactic has been rudeness and aggression to disconcert witnesses. He questions their honesty, fairness, independence and qualifications. Today his bullying tactics ran foul of two classier performers than he. That is no criticism of Professor Feldstein yesterday, whose quiet dignity and concern was effective in a different way in exposing Lewis as a boor.

Lewis’s remaining tactic is to fall back repeatedly on the affidavits of Gordon Kromberg, US Assistant Attorney, and his statements that the prosecution is not politically motivated, and on Kromberg’s characterisation of the extent of the charges, which everybody else but Lewis and Kromberg finds inconsistent with the superseding indictment itself.

Witnesses understandably back away from Lewis’s challenge to call Kromberg a liar, or even to question his good faith. Lewis’s plan is very plainly to declare at the end that every witness accepted Kromberg’s good faith and therefore this is a fair prosecution and the defence have no case.

Perhaps I can assist. I do not accept Kromberg’s good faith. I have no hesitation in calling Kromberg a liar.

When the best thing your most supportive colleague can say about you, is that out-and-out Islamophobes do enjoy temporary popularity in the immediate aftermath of a terror attack, then there is a real problem. There is a real problem with Gordon Kromberg, and Lewis may very well come to regret resting the weight of the credibility of his entire case upon such a shoogly peg.

Kromberg has a repeated history of Islamophobic remarks, including about Muslim women. As the Wall Street Journal reported on September 15th 2008,

“Kromberg has taken a lot of heat recently for comments made and tactics taken in terrorism prosecutions”… said Andrew McCarthy, a former federal terrorism prosecutor. “As long as nothing goes boom, they want to say you’re an Islamophobe. The moment something does go boom, if the next 9/11 happens, God help anyone who says they weren’t as aggressive as Gordon.”

For British readers, Kromberg is Katie Hopkins with a legal brief. Conjure up that image every one of the scores of times Lewis relies on Gordon Kromberg.

More to the point, all expert witnesses have so far said that Kromberg’s precious memoranda explaining the scope of the indictment are inaccurate. It is at odds either with actual practice in the USA (the lawyer Clive Stafford Smith made this point) or the actual statutes to which it refers (the lawyers Trevor Timm and of course Mark Summers QC for the defence both make this point).

Crucially, Kromberg has a proven history of precisely this kind of distortion away from the statute. Also from the Wall Street Journal:

Federal judge Leonie M. Brinkema lashed out at the prosecutor [Kromberg], calling his remark insulting. Earlier, she had chastised Kromberg for changing a boilerplate immunity order beyond the language spelled out by Congress and questioned whether Arian’s constitutional rights had been violated.

“I’m not in any respect attributing evil motives or anything clandestine to you, but I think it’s real scary and not wise for a prosecutor to provide an order to the Court that does not track the explicit language of the statutes, especially this particular statute,” Brinkema said at the hearing in the Alexandria courtroom.

Next time Lewis asks a witness if they are questioning Kromberg’s good faith, they might want to answer “yes”. It certainly will not be the first time. As Trevor Timm testified today, senior prosecutors in the Justice Department had opposed this prosecution as unconstitutional and refused to be involved. Trump was left with this discredited right wing sleazeball. Now here we are at the Old Bailey, with a floundering Lewis clutching at this oaf Kromberg for intellectual support.
 
 
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232 thoughts on “Your Man in the Public Gallery – Assange Hearing Day 8

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  • Sean_Lamb

    It seems the prosecution is going to focus on two issues: the unredacted names issue and the hacking. It is important then the defense is similarly laser focused in their response.

    As far as the unredacted names, the fact John Young of cryptome was the one who first published the fully decrypted files is extremely important. This means technically Assange was not the publisher of the unredacted names, John Young was. The refusal of the US government to prosecute him is a powerful argument to dual criminality requirement (ie it appears it is not considered illegal under the First Amendment, or they would have prosecuted John Young). The fact that the decryption was facilitated by two journalists (who published the key) who are so hostile in their accounts of Assange should also be stressed.

    On the hacking charge, it can’t be repeated often enough that the password hash was for a password for Manning’s computer and there is no evidence that it could provide any network access whatsoever.

    For dual criminality the question needs to be asked has anyone ever been prosecuted in the UK for passing on a hash to a third party that is uncrackable, provides no access to anything and without any discussion as to motivation. You would need to have a good knowledge of the requirements of inchoate offences under English law, but I think a strong argument can be made that the threshold has not been reached
    https://en.wikipedia.org/wiki/Inchoate_offences_in_English_law

    There is also the impossibility defense, since at Manning’s trial the expert witness stressed that it was impossible for Assange (or associate) to actually decrypt this particular hash, let alone we still have no evidence as to what such a successful decryption might have been used for.

    The argument I would be using is Assange’s actions didn’t represent a crime to conspire to hack a computer under English law. And even if it did, it was so obscure that such a prosecution would only be undertaken for political reasons.

    • Sean_Lamb

      In terms of Defense of Impossibility, I would refer to the State V Guffey

      https://law.justia.com/cases/missouri/court-of-appeals/1953/7209.html

      Here the defendant had been convicted of shooting a stuffed deer out of season, in the belief it was a real deer. However, as the Court of Appeals pointed out.

      “Bearing these definitions in mind, it seems to us that the State has wholly failed to make its case when it stands upon the proposition that defendants “pursued” a deer. In the first place there was no deer. The hide of a doe long since deceased, filled with boards, excelsior and rods with eyes made of a reflective scotch tape, was not a deer within the meaning of the statute and Section 33 of the “Wildlife Code of Missouri”. The dummy, such as it was, was a stationary affair, it could not run, could not jump, it could not flee from the rifle slug of a hunter. It was not wild and it had no life.”

      In the same way the 32 hexadecimals Assange received was not a password hash – according to the Manning trial it was a meaningless series of numbers and letters that needed to be decrypted by the system key before it could be subjected to cracking.

      It could no more generate a password, than a stuffed deer could leap a fence.

      • Mez

        Brilliant! Here’s hoping it reaches Assanges team! I’ve heard little of UK case law so far. Dual-criminality should be the juxtaposition of the defense. I’m a little worried they’re riding the ‘political’ topic too hard – like – they put all their eggs in one basket and got taken by surprise with the new indictment. I hope I’m wrong but this is great material and I hope they see/consider it.

      • Mez

        With regard to mens rea: just because Assange was sent the code doesn’t mean he tried to crack it as he would have known full well he couldn’t. I suspect that it was not Assange behind the keyboard at the time or he would have said as much. I’m actually surprised Manning thought he could

      • Mez

        And… now that I’m actually thinking about it… I seriously doubt this coversation ever transpired between Assange and Manning since they both know perfectly well that it was impossible. Let’s say it wasn’t Assange and Manning behind the keyboards – or that there’s no proof it was – the entire allegation would fall flat on its face. Have Assange or Manning ever acknowledged that they wrote one side or the other?

    • Simon+Abbott

      Thank you for this, Sean. I am sure we all hope that JA’s team is fully apprised of all the arguments and precedents you have put forward, or if not that somehow your post will find its way to them.
      From the highly selective live coverage I followed, yesterday’s proceedings seemed very unusual in one respect at least, namely that Baraitser overruled the prosecution three times in a row. I was, I must admit, very pleasantly surprised. But I won’t let this go to my head. I like most people I am sure, still expect Baraitser, as she has repeatedly done before, to read a pre-prepared judgment from her laptop.. Or maybe she’ll even bother to memorise some of it this time..
      Brilliant job, as ever, Craig..

    • Blissex

      «It seems the prosecution is going to focus on two issues: the unredacted names issue and the hacking. It is important then the defense is similarly laser focused in their response.»

      Despite our blogger’s tone, this is an administrative review case part of an extradition process, not a criminal case, and in any case the defendant is the UK government, and the plaintiff is Assange, not viceversa. The UK government is defending their approval of the extradition request from a complaint by Assange. The issue is not whether there is a case against Assange, the extradition treaty’s loose wording does not require that, but whether the UK government violated the treaty in approving the extradition request.

      The crucial issue made by the advocates of the UK government are not the unredacted names and the hacking, but they are that the USA justice system does not do political prosecutions, and even if it did, it has independent judges and juries that would not convict Assange if it was a political or vexatious prosecution.

      • Mez

        This is what I thought too. Doesn’t make sense for the UK government to be represented by US prosecutors. Where’s the UK representatives who are experts in UK domestic law to prove the dual criminality of the original verdict?

  • Margaret+Eleftheriou

    The judge has (presumably) already got her statements prepared, on her laptop, or sometimes in written form. She hears the defence witnesses’ statements (and has presumably read their written statements), the cross-examinations, but crucially DOES NOT HEAR any of this. For her, the defence is merely producing sounds, not arguments.
    Craig’s detailed account of the trial is essential for us to know and understand, not only the crassness/boorishness of Lewis, but also the inaccuracy of the indictment, his continual distortion of the actual charges…….
    Mr Murray, you are a beacon of sanity in the insane world that we have to live in.

    • AlexT

      I will agree on this – the decision is already taken and fully drafted. There is exactly zero chance that extradition will be denied.

      I am no lawyer hence asking: is there a tactical / technical advantage for Assange and his defense in this process (except the hefty fees) ? Is any of this going to be admissible in the US court that will actually judge him ?

      • Courtenay Barnett

        Alex T,

        I think that the process and defence approach is:-

        1. Put up credible defences which on an objective basis will expose the charade which this whole extradition application is.

        2. Look beyond the first instance Judge to the appellate level where the court will be faced with a harder task of ignoring that which had been credibly led at first instance; and

        3. Be aware that even in the stickiest and tightest of situations both national and international public opinion does count for a lot.

        I therefore don’t believe that it is all an exercise in futility just so that lawyers can get legal high legal fees ( speaking as a lawyer myself – but I must live and do have to charge something ( chuckle).

  • Gerry Bell

    I know it’s been said, but I can’t help echoing the sentiment that this whole inquisition seems Kafkaesque – terrifyingly irrational and vindictive.

  • Gareth Watson

    Thanks so much Craig for being there and allowing us to be there at this pivotal moment, it’s not like we can rely on corporate media sources at this time to report on this issue.

  • Fwl

    This reminds me somewhat generally of Jeremy Hutchinson’s case reports of his defences of the great cases of the 1960s – in the days of Roy Jenkins and Mary Whitehouse except those issues (of freedom of abortion, censorship & obscenity in the theatre , in books and saucy postcards, gay rights and divorce) were in the public domain. On the censorship / obscenity cases the state turned away from prosecutions before a jury because the state kept losing to prosecuting before magistrates where they had a better chance of winning. The records of those cases are a great source of understanding issues of the 1960’s. Craig’s accounts may be a great primary source for future historians of our current period and perhaps those historians will be asking themselves but why was it that it fell to this Craig Murray to report?

    Fascinating to hear the narrow suggestion that having views about the governance of corporate life is somehow not a political opinion and it would be interesting to read more about Wikileaks version of libertarianism- is this akin to the political view of the Piracy Party? Presumably corporate libertarians such as the Kochs may have different views about transparency in private corporate life. Libertarianism, like human rights, is often beloved by the left but then turns out to be of use to the right.

    Given the reported witness comments about how this prosecution has the potential to undermine the fundamental work of journalists it is a shame that professional bodies of journalists (NUJ?) and national US and UK press or media organisations do not join the proceedings as an interested party (I don’t know if that is possible in criminal proceedings as it is in civil ?).

    Incidentally why does Julian Assange appear to have two silks: do they cover different aspects of his defence or is one for him and one for Wikileaks?

    • Muscleguy

      In New Zealand when we forced the politicians to change the voting system to MMP, a form of PR, prominent figures from both the Labour & National (Tory) parties came together to form the ACT Party which is expressly Libertarian. Very socially liberal (so of the left) absolutely dry economically and very small state (so of the right) so it depends on your focus.

      They have propped up National govts. But they were also part of the coalitions of the willing who passed (and cast useful eyes over) genuine Civil Partnership for all (a form of civil contracts) and legalised prostitution in brothels (as a harm reduction measure). This was during Helen Clark’s Premiership.

  • Stonky

    I would have thought there is a very simple response to the Lewis tactic of “Kromberg has said this is not politically motivated – are you calling him a liar?”

    “What if it is? Would you expect him to have it tattooed on his forehead?”

  • Mary

    It is good that the editor of the Independent, Christian Broughton, gave room for Noam Chomsky and Alice Walker* to write on the case.

    Julian Assange is not on trial for his personality – but here’s how the US government made you focus on it
    By drawing attention away from the principles of the case, the obsession with his character pushes out the significance of WikiLeaks’ revelations
    https://www.independent.co.uk/voices/julian-assange-trial-us-trump-chelsea-manning-chomsky-walker-b420930.html

    Evgeny Lebedev is part owner of the online newspaper.
    https://en.wikipedia.org/wiki/The_Independent

    * They are co chairs of AssangeDefense.org

  • Mazunga

    Said it before, but I’ll say it again. There is much I disagree with you on, and I’m not particularly a fan of Assange’s, but what you’re doing here is incredibly valuable.

    I may have to reach down the back of the sofa again…

    • Failed cricketer

      Oh dang, and all along I thought was just a lucky murdoch on his birthday, granted one googly by his bevy of presstitutes, with a chance to peg his shoogly in the wrong’un !!

  • Robert+Dyson

    This is a fascinating insight into how unscrupulous power works. You report with passionate detail, I am learning a lot from you and the defence witnesses. I certainly hope Assange is freed, he does not deserve this horror show.

  • Mazza

    Great Article. Every so often I find myself buoyed with glimmers of hope that Assange will be victorious and won’t be extradited, only to remind myself that the fix is in. Even if his team appear to be winning the legal argument, so what? With no jury to convince it scarcely matters. The establishment judge decides. And that is the nub of the matter. The chief magistrate has a huge conflict of interest and the presiding judge has shown through her pre-written and decided judgements everything you need to know about Assange’s chances. My prediction: Assange’s team soundly win the legal argument but it won’t matter, she’ll still find against him. I hope I’m wrong, but I’ll bet a pound to a pinch of salt I’m not.

  • Jeremy+Smith

    I wouldn’t be surprised if the Americans offer up Anne Sacoolas in exchange for Julian Assange – and even publicise it as ‘a great deal’ – as a nice piece of red meat for Trump to keep his US base fed as well as shore up his popularity amongst his UK foreign legion of Mail devotees.

    • M.J.

      Offer something to a vassal? Who is Boss around here? Nay, the vassals will do as told and hand Assange over. Unless some pesky judges in higher courts interfere, because some high-falutin’ old-fashioned notion of British Justice, of course.

    • Mary

      Poor Harry Dunn’s mother was on the news this morning, along with her solicitor, appealing for justice for her son. She has been given the usual fob off again by the FCO ref the extradition of Sacoolas.

  • Ian

    It is becoming obvious how desperately flailing the prosecution is, in terms of its case and its arguments. Rogers and Timm made Lewis look like the unprincipled lapdog that he is, not in command of his brief, his shallow bag of tricks exposed as a trite and dishonest repetition of Kromberg and unsupported allegations and hearsay. Their attempts to deny what is in their own indictment is astonishing in its complacency and its dishonesty, and explains clearly why they were so desperate to limit public scrutiny and discussion of what they are doing. The case looks more and more shambolic, incoherent and plainly so selective in its arguments, that only the briefest exposure to daylight destroys any credibility or justifiability. They have had to manufacture the most convoluted of arguments and charges, in order to avoid the overwhelming case for the defence, in terms of the first amendment, a political trial and the role of journalism, that they are making the law look absurd, ridiculous and afraid of public comment.

    As others, i don’t believe Baraitser, on all the evidence, will care a jot about the arguments placed in front of her, and has already decided to grant the request, but it is fascinating how tawdry, unprincipled and malevolent they are. How the legal profession can support people like this, who undermine everything about their supposed standards and independence, their basic competence and commitment to justice, is hard to comprehend. The answer seems to be that they look away. How Baraitser can sleep at night I don’t know, but you would have to be made of stone to ignore what is being laid out in front of you.

    Trump’s corruption, vindictiveness, ignorance and attempts to gerrymander the law are jawdropping, even by any past low standards. That the British allow themselves to be dragged into his moral degradation is a stain on all the institutions in this country which enable and abet him.

    • Blissex

      «It is becoming obvious how desperately flailing the prosecution is, in terms of its case and its arguments.»

      Again, Assange is the plaintiff and the defendant is the UK government, and this is not a criminal trial. It is Assange that has to prove a case, not the advocate for the UK government.
      The whole issue of whether the approval of the extradition request by the UK government is legitimate, and that ultimately hinges on whether the USA justice system is corrupt or not. If it is not regarded as corrupt, and it appears possible that Assange’s trial could be fair, the extradition request will pass.
      I think that Assange’s prosecution by the USA is vexatious, that is designed as “lawfare”, meant to wear down and ruin Assange, even if ultimately the trial were to be fair and a jury were to refuse to convict him, but I think that is irrelevant to the validity of the extradition.

  • Patsy Millar

    Superb summation. Professor Rogers and Trevor Timm really showed up the inadequacy of the prosecution though I have no faith that their testimonies will prevail. I suspect, as others have said in their comments that the result is a foregone conclusion and not one in Julian Assange’s favour; but at least your coverage will help to expose the injustice of it all. Thank you once again for your sterling work.

  • Bayard

    “Witnesses understandably back away from Lewis’s challenge to call Kromberg a liar, or even to question his good faith.”

    Why, what would happen if they did?
    In any case, there are plenty of euphemisms in the English language for lying, arising out of a similar reluctance from MPs to call another of their number a liar.

  • nevermind

    Thanks for this excellent account, Craig, you are an example to all who want to join the journalistic profession.
    please change ‘Lewis to Timm’ in the sentence before mentioning the 99.9%.

    [ Mod: Thanks for pointing this out. The text has been amended accordingly. ]


    It looks like the prosecution is in a cage of their own making and Lewis is playing up to a judge that cant think for herself.

  • Mazza

    Given that it’s all a predetermined show trial, wouldn’t it be nice if someone actually called it out as such in court, maybe repeatedly yelling: “This is the mother of all show trials! Your pre-written and predetermined judgements are proof this in not a fair trial!”

    Sure, they’d get dragged off and do a bit for contempt but at least it would garner some media attention.

  • Peter M

    I cannot believe how morally corrupt some people are. How low can one go? Do the prosecution and judge even understand the concept of justice?

    In the meantime Julian’s life is ticking away. Had he been free, he could and would have made the world a better place. But that is not in the interest of the powers that be, so they will try to put a stop to that, no matter what. It makes me shiver.

    Thank you Craig for your reporting efforts. I am in awe with your devotion to this case (and others). You are living proof that good honest people still do exist.

  • Sarge

    Another great recounting of events. Shook my head more than once reading of Lewis’s antics. The poor man seems quite feeble minded and, as you say, very far out of his depth. Where in the name of God are they finding these characters?

  • Steven Peake

    If, as others have (I suspect correctly) that the “fix is already in”, I wonder what the next steps will be for the defence.

    Given the mainfestly apparent bias of the judge, what with the reading of prepared statements, are there grounds for appeal ?

    The UK is still a signatory to the European Convention of Human Rights, (is it not?) and the Human Rights Act has yet to be repealed.

    Article 6 of the Human Rights Act is of relevance.

    “You have the right to a fair and public hearing that:

    is heard by an independent and impartial decision-maker”

    There would appear to be considerable grounds to suggest this is not the case.

    I also wonder whether a Biden administration would continue the prosecution.

  • DiggerUK

    Can anybody confirm the appeals procedures open to Julian and his defence team if this court case goes against him.

    I am of the opinion, because of how Baraitser is handling herself, there is every reason to suspect she is just acting as a jailor, without finding Julian guilty of anything. A ‘neat trick’ to keep him incarcerated as punishment for as long as possible…_

    • Mighty Drunken

      I suspect the same. Either the judge is simply incompetent or they want an appeal.

      Is it possible for Assange to lose, lodge an appeal but be extradited anyway? “Oh, sorry about that we only saw the appeal after the plane had taken off”.
      Or they just want Assange to rot in jail and don’t really care where. So for example he loses this one, wins the appeal but the US just creates a new one. Or Sweden could resurrect the “rape” charges, or who knows.

  • Ian

    The case has been adjourned until 14th September because of a suspected coronavirus case in the prosecution team. They tried to continue by video link, but it was unworkable, people couldn’t hear each other etc. The person with symptoms will get a test – good luck, there have been no tests available in London for days, with suggestions to go to Inverness or Swansea. Meanwhile, the results can take days to come through. Such is the glory of outsourced public health, to accountants and security firms, at enormous expense of course.

  • James L

    Another very illuminating piece of reportage.

    I am particularly thankful for the additional asides to provide context and to explain what the prosecution are attempting to do here. I am extremely nervous that a D Notice is being used to ensure coverage of the details of this sham of a case and will allow Baraitser to do as the US prosecution wishes and extradite Assange.

  • David G

    Just as an analytical point, I don’t quite understand the importance both sides seem to be giving to the question of whether Obama’s Justice Dept. decided not to prosecute Assange, or simply did not decide to prosecute him, or however either side might want to spin it.

    Just because a political change has occurred that has led to a different decision on whether to prosecute a case, I don’t see that as necessarily making it either a political offense (Para. 1), or even as making it a politically motivated request (Para. 3).

    In that sense, I thought Lewis’s analogy to Northern Ireland was on point (although of course in reality that example lacked the extradition aspect): British politics having evolved to the point that old wrongs could now be dealt with did not make Troubles-related prosecutions political in a way that would be relevant here.

    I kind of get why Assange’s side would want to highlight the change that came in with the new administration, since it is at least suggestive of politics. And on the same superficial level, the Crown side may have found a tender area, since there’s a touch of Assange being hoist by his own petard in formerly saying that the Obama-era U.S. was going after him when justifying his taking refuge in the embassy, and now maintaining that there is a clear contrast between Obama, who didn’t ultimately go after him, and Trump, who is.

    But the ruling under the treaty should depend on what the U.S. prosecutors are doing now, not what they did or didn’t do under Obama. If I were the judge, while I might let the parties fight it out, I wouldn’t ultimately care too much about this part of the evidence (even if, apparently unlike Baraitser, I were earnestly trying to reach a just decision).

    • Ian

      The point is that the defence is laying out why the current charges are political, stemming from Trump’s ‘war on journalism’, his antipathy to Obama, the crudely and absurdly framed charges etc. Thus the change from Obama to Trump is not new evidence, but simply a political vendetta against a publisher they don’t like. The reason the former administration didn’t file charges is because, as they latterly said, they couldn’t find any which didn’t breach the first amendment. The prosecution is trying to deny this by inventing reasons why charges weren’t filed, such as unavailability of the suspect, which is irrelevant, as Timm pointed out.

      The reason all this is important is because the extradition treaty doesn’t apply when the charges are political. Thus also the time spent on whether Assange had a distinct and articulate political belief system, and whether there was a public interest defence, and whether he was a journalist. Rogers and Timm answered all these objections rigorously and convincingly.

      And that is why they are trying to demolish the political argument, Assange as a journalist and publisher of whistleblowers etc and stick to a narrow set of charges around criminality – hacking, espionage etc. But they are on very thin ice with that, as the defence will no doubt show.

      • Ian

        On cross examination, the prosecutor, James Lewis QC, hammered Rogers to try to get him to admit he has no basis to testify that the prosecution of Julian Assange is politically motivated.

        Lewis tried to destroy the witness’ credibility as an expert by saying he did not include a statement by the U.S. prosecutor saying that the charges against Assange are motivated by criminal justice, and not politics.

        Rogers says he has no doubt Department of Justice officials acted professionally in putting together an indictment, but questions officials at high levels of government who gave the orders to prosecute in the first place.

        They have done this, Rogers testified, after eight years of failure by the Obama administration to prosecute because it would clash with the First Amendment. This brought about a round of interrogation similar to Tuesday as Lewis again tried to establish that the Assange probe was never dropped and that he was not prosecuted because he was in Ecuador’s embassy “and not available to stand trial.”

        Rogers cited statements of intent to take down WikiLeaks by Jeff Sessions, Trump’s first attorney general, Mike Pompeo, as CIA director, and Attorney General William Barr as evidence of political motivation. He also pointed to the personal political animosity of Trump towards the press. On the whole Rogers stood his ground, unlike Tuesday’s defense witness, who wilted under Lewis’ withering forays.

        On re-direct examination, Rogers says he believes that the changing political mood in the United States against the wars in Afghanistan and Iraq at the time of Barack Obama’s election and during his administration contributed to the Obama decision not to prosecute Assange.

        This changing mood was influenced, Rogers testified, by WikiLeaks releases that confirmed the U.S. military privately knew both wars were going badly. Lewis picked up his theme from yesterday that the Obama era grand jury investigation never ended and that it is wrong to say a decision was made not to prosecute.

        https://consortiumnews.com/2020/09/09/live-updates-day-three-assange-hearing-defense-witness-dismantles-key-elements-of-government-case/

        • David G

          I of course see the centrality of the question of whether the current prosecution is political; I was questioning the pains both sides are taking to characterize what the Obama DoJ did in the past.

          With a few hours more thought, I can see more relevance than when I wrote my earlier comment (“helpful”, as Craig says), but I still think it is a peripheral dispute.

        • David G

          If it really could be demonstrated that the Trump DoJ is going after Assange because of Trump’s personal obsession with doing the opposite of Obama in all things, I’d have no big problem with saying that made the current prosecution political – though in that case, “arbitrary” would be the more accurate term.

          But I think too much is made of that phenomenon, also cited as why Trump took the U.S. out of the JCPOA (“Iran nuclear deal”).

          In both the Assange and Iran cases, as well as much other policy such as environmental protection, Trump reverses Obama because in these areas the Obama administration acted in the public interest to at least some limited degree, while Trump is enabling the unrestrained id of corporate and military/surveillance interests.

          Obama also launched a huge “modernization” of the nuclear arsenal. For some reason, Trump’s alleged obsession with undoing everything his predecessor did hasn’t extended to that!

          The motivating forces are institutional, not any personal pique between presidents.

        • David G

          Having said all that, I certainly agree that the U.S. is seeking to prosecute Assange for political offenses – with some cheap window dressing to obscure that reality – and if the U.K. extradites him, the political-offense defense under the treaty will have been rendered meaningless.

          • Blissex

            «the political-offense defense under the treaty will have been rendered meaningless»

            Let’s not be naive: what it really is there for is not for the accused to avoid extradition, but for the UK government to have an excuse to refuse extradition of “freedom fighters” to countries it does not like.

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