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 Jabber 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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  • Rhys Jaggar

    IN my opinion, James Lewis QC should face the death sentence for actively defending the US administration, which committed genocide in Iraq in flagrant disregard of international law, the strictures of the UN and much more.

    He is a murderous, unprincipled prostitute totally unfit to practice law.

  • SA

    The defense’s reliance on claiming that this is a political offence because the Trump administration has declared war on journalists is not without risk. The democrats have declared their animosity to Assange on many occasions and the failure to ask for extradition application during the Obama year may have just been a technical issue because he could not be arrested. Certainly the animosity to Assange by the democrats increased post the 2016 elections following the Clinton email publication, and I am not sure that a democrats administration would drop the request for extradition. By the way has anyone asked Biden this specific question?

    • Bill Marsh

      Even if the Democrats agreed with the extradition this would not mean it was not political. The political differences between the Republicans and Democrats is less than the thickness of a fag paper.

      • Ian

        Indeed, but it is the difference between whether it was legally watertight where they differed, not the intention or desire.

        • Yalt

          I’m not sure it’s that so much as a difference over whether it mattered whether it was legally watertight.

    • Tom Welsh

      Logically (although I appreciate that the law has nothing to do with logic) whether an alleged offence is or is not political has nothing at all to do with who expresses dislike of it.

      All repressive politicians, and many other repressive individuals and groups, would like to see Assange crushed. The question is whether they can distort the mechanism of the law sufficiently to accomplish this, without making it obvious even to the purblind populace that the law is being mercilessly distorted.

      There is also the risk that official “journalists” and “editors” may suddenly awaken from their complacent trance, and notice that the precedents set by a successful prosecution would mean that, in future, everything they do would be potentially criminal.

    • Nickle101

      This is the modern equivalent of how Stalin used to airbrush key figures from photos. Media organs like the BBC serve as archives for institutional memory. The omitted inconvenient bits will be as if they never happened. This is how Power makes history.

      • ftmntf

        Indeed. See Ian Cobain’s book ‘The History Thieves’ for an account of how the Brit establishment disappeared inconvenient documents about the Empire either to a bonfire at the time of deolonisation or to Hanslope Park.

      • Ken Kenn

        Agreed.

        In my opinion the best propaganda is the stuff you are not allowed to see.

        If you are not allowed to see it then it doesn’t exist publicly until the PTB want you to see something that they want you to see ( witness).

        Now you see it – now you don’t.

        The BBC are adept at this.

        Laura is angling for a job with Fox type Radio with a view to going on to a Fox type British News outfit.

        In my opinion of course.

        Many future ex BBC types will follow suit eventually.

      • Squeeth

        The British state started bleaching people from history in the 1870s. Stalin was a Johnny-come-lately.

    • Crispa

      Yes it is absolutely reprehensible of the BBC to decide against ongoing reporting of the progress of the Hearing. Contrast its silence with the coverage of such as the Johnny Depp libel case and compare its significance in terms of their respective newsworthiness.

      • Mary

        Yes agree. The BBC is not called the state broadcaster for no reason. I see La Kuenssberg is back from her extended break. They were running that stupid three way thing called Newscast with her and Katya Adler and Chris Mason. Nitwits and loyal servants to the state..

      • On the train

        Yes good point….the Johnny Depp trial was heavily covered . But this one is going well under the radar. I find hardly anyone is aware that it is taking place which I suppose is the idea.

  • Cubby

    The UK government a bunch of crooks and scumbags. That is what the English and the Britnats in Scotland vote for.

      • Cubby

        U Watt

        You what – the UK’s colonial lackeys in Scotland are persecuting CM and MH. Every colony has always had their Vichy administration. Scotland is no different. Every one of them signed up to the Ragman Roll. Today the BBC (the British state propaganda broadcaster) has pulled the broadcasting of the coronavirus briefings in Scotland. Britnats putting saving the Union over the health of the population of Scotland. Truly scumbags. Instead of the forts and garrisons that the British state used to maintain in Scotland they now have the pushers of propaganda based in their large buildings on the Clyde. Scumbags the lot of them.

    • Squeeth

      Don’t be bitter, only the EU ref was democratic, all the rest were/are travesties of democracy.

      • Cubby

        Squeeth

        Sorry squeeth old chap. Nothing democratic about it for Scotland (as usual). 62% remain in Scotland – as Scots are sovereign and have the legal right to choose their own form of government the decision by Westminster to ignore this is the action of a dictatorship.

        2016 EU ref 52% to leave across the UK – result we leave.

        1979 Scottish devolution referendum 52% yes to devolution – result no devolution.

        Westminster phoney democracy for Scotland since 1707. Scotland has NEVER had democracy. Only by terminating the Treaty of Union will Scotland have a chance of having democracy.

  • Marmite

    I found it quite shocking to learn that a magistrate is presiding over this case.

    Magistrates, so far as I know, are the lowest of the low when it comes to legal expertise, and are usually drafted out of a semi-senile retiree pool of people that once held highly conservative jobs, those of the kind deemed ‘respectable’.

    It is kind of like asking someone with a bit of first-aid experience to perform open-heart surgery, isn’t it?

    But I suppose that way a nobody gets the blame retrospectively for committing the crime of sentencing an innocent person, rather than somebody who actually cares about their career and posterity.

    • Bramble

      She’s a district judge. Not a volunteer, full time and paid. But like JPs she is on the first tier of the legal process. Magistrates deal with something like 95 per cent of all cases in the courts. Not, obviously, anything that is “sensitive” politically. The state turns to its own for that.

      “District judges (magistrates’ courts) are appointed by the Queen, on the recommendation of the Lord Chancellor, following a fair and open competition administered by the Judicial Appointments Commission.
       
      “The statutory qualification is a five-year right of audience – the right of a lawyer to appear and speak as an advocate for a party in a case in the court – in relation to all proceedings in any part of the Supreme Court, or all proceedings in county courts or magistrates’ courts. Additionally, they will have often have served as deputy district judges (magistrates’ courts) for a minimum of two years or 30 days’ sittings.”

  • Sally

    “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.”

    I found that most illuminating Craig, thank you. What a huge effort you are making, stay strong and look after yourself.

    • Mary

      A short biog and a photo of Gordon Kromberg here..

      Assistant U.S. Attorney
      Mr. Gordon Kromberg is an Assistant United States Attorney in the Eastern District of Virginia, where he has served since 1991. He has been the lead prosecutor in many cases of defendants attempting to support Al Qaeda and ISIS, and other terrorist groups. After 9/11, Gordon served on the United States Justice Department’s Terrorist Financing Task Force, and helped coordinate a nationwide enforcement effort to combat terrorist financing. Gordon is a graduate of Princeton University and the New York University School of Law, and a retired Lieutenant Colonel in the United States Army’s Judge Advocate General’s Corps.

      https://na.eventscloud.com/ereg/popups/speakerdetails.php?eventid=353187&language=eng&speakerid=1091459&

  • Blissex

    «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.
    »

    Here Lewis uses a nice technique: confusing a decision to “not prosecute” with a decision to “never prosecute”. Obviously there was a decision to “not prosecute”, because the prosecution was not started, but there was also no decision to “never prosecute”, as that decision could not bind a subsequent administration.

    • Tom Welsh

      ‘Here Lewis uses a nice technique: confusing a decision to “not prosecute” with a decision to “never prosecute”’.

      It’s what barristers do. As someone neatly observed, the job of lawyers is not to explicate or implement the law, but to find ways around it. Cheap rhetoric is an easy way to do that.

  • Blissex

    «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.»

    With hindsight, he could have argued that the decision to *not* prosecute them before was political. In practice the most political decisions are those to not prosecute someone, as K Starmer seems to have decided in some famous cases.

    • David G

      Would arguing that decisions not to prosecute are the most political really have been helpful to Assange at this juncture?

      • Tom Welsh

        I doubt it. Even assuming the prosecution’s good faith (a laughable idea), all the discussion about “political” or not is a rat hole.

        Assange set out to publish information that governments wanted to keep secret. That alone is unarguably a political goal.

        Political parties have nothing to do with the matter. Their main purpose, after all, is to prevent open political debate.

      • Blissex

        «decisions not to prosecute are the most political really have been helpful to Assange at this juncture?»

        I was talking about the decision not to prosecute the soldiers, the case of Assange is a bit different.

        My impression is that some commenters here (and in part our blogger, but it may be partly intentional) misunderstand the issues here.

        There is a big difference between the *indictments* being political (e.g. the alleged crime being “subversive speech”) and their *motivation* being political (e.g. the alleged crime is “sexual assault” which is not political but it is alleged only to persecute a target, as being indicted, arrested, jailed and subjected to a court case is a punishment in itself, especially for a public person).

        The problem with Assange is that in the new indictment most of the crimes alleged are non-political, and the defense (the UK government) says that they are *all* non-political. So the task is to prove that the *motivation* for the indictment is political, so the current indictment is vexatious. As to that the Obama era prosecutors:

        #1 Made a decision to not-prosecute the *political* indictments because of 1st amendment reasons, and that was not a political decision, but a legal one.

        #2 Made *also* the decision to not-prosecute *non-political* indictments, and that was a political decision to not persecute Assange with a vexatious prosecution.

        The second point means that given pretty much the same evidence, the decision to prosecute Assange for alleged non-political crimes must also be political.

        Note that the defense (the UK government) has a very strong counter-argument: that even if the indictments for non-political crimes are politically motivated, if they are false the USA courts are fair and will recognize Assange’s innocence, so there is no reason of substance to deny extradition.

        But there is still a formal reason: as I read it the treaty explicitly excludes politically motivated indictments, not just indictments for political crimes, from the reasons to exclude extradition. But the wording seems to me to say that the UK govenment *can* refuse extradition if the indictments are politically motivated, but it does not have to do that, extradition in that case is not forbidden, but optional.

  • Ian

    Update: COVID-19 tests for prosecutor and their partner are negative. Proceedings in #AssangeCase resume on September 14.

      • Ingwe

        What a shame Crispa at 16:26 on September 11 – what a delicious irony it would have been had one or more of the prosecution team contracted Covid when the government has done its damndest to ensure that Mr Assange contracted Covid19 in Belmarsh.

      • nevermind

        yes Crispa, the first question to Lewis should entail to disclose all correspondence that occured over the weekend with witnesses and or officials.

  • John Bernard

    Thank you Craig. A rivetting account and a service to us all, not least like you,concerned with fairness, due process and transparency.

  • David G

    So I’ve caught up on this week’s print NY Times, and the number of mentions of Assange runs to … hold on … carry the four … um, zero. That’d be zero stories about the hearing in the NY Times.

    A website search turns up one article filed by their own reporter after the first day which did not make the print edition, besides various wire service reports. (I have no idea how visible they made any of that on the site.)

    Meanwhile, the paper this week did find space for substantial articles on the two Australian reporters who lammed it out of China fearing detention, and Beijing’s decision to stop renewing credentials for reporters with U.S. news organizations. Because people need to know that journalism, and Australian journalists, are under threat … in China.

    • Tom Welsh

      “… Beijing’s decision to stop renewing credentials for reporters with U.S. news organizations”.

      Well, at least that is good news. Now if Russia, Iran, Pakistan and the rest of Washington’s designated “antagonists” would follow suit…

    • np

      No surprise that the chief executive of the NYT (for the past eight years, until last Tuesday) was hired from the BBC, which he also headed for eight years, after being chief executive of Channel 4 in the UK for two years. (Mark Thompson). Small world.

    • glenn_uk

      There is this: https://www.nytimes.com/2020/09/07/world/europe/assange-court-extradition-london.html

      It doesn’t really take the Establishment’s side:

      “From the start, the charges against Mr. Assange have raised profound First Amendment issues because his actions are difficult to distinguish in a legally meaningful way from those of traditional news organizations. It would be unprecedented in American law for such activity to result in criminal convictions, so press freedom advocates have denounced the charges against him and have been watching the case closely.

      Not a really comprehensive report, but there are plenty of links in there for further reading.

      • Brianfujisan

        Thanks Glenn… I’ll explore some of those links

        P.s Thanks for the Greeting message a few weeks ago…After I had been Absent a while…. Stay Safe.

  • Greg Park

    Unfortunately the outcome looks overdetermined no matter how poor Lewis is . Bozo’s u-turn on Huawei has shown he’lll do anything to please Trump and Pompeo. If he’s willing to massively antagonize China it’s unlikely he’ll hesitate to upset supporters of Wikileaks and Julian Assange. Maybe that underestimates the independence and open-mindedness of Vanessa Baraitser. Hopefully so.

    • Blissex

      «Maybe that underestimates the independence and open-mindedness of Vanessa Baraitser. Hopefully so.»

      Well, I was pretty sure that the prosecution of Salmond was politically motivated, and that in #MeToo “better safe than sorry” climate he would be easily convicted, “just in case”, but I was wrong. I am currently guessing that Assange’s complaint against the extradition decision also fail even if his prosecution is politically motivated, but I hope to be wrong again.

  • Peter Mo

    The delay in court proceedings should have been an opening to apply again for bail. Since the Swedish requests have been withdrawn the sexual status of the bail breach is irrelevant. Therefore Assange’s bail breach is due to a non existent charge so Assange’s history of defying bail only minimal. Surely the defense can do better than it has done so far applying for bail.

  • Peter

    From Craig’s Twitter page (https://mobile.twitter.com/CraigMurrayOrg/status/1304377142587928578):

    “So USA junior counsel’s Covid test was negative and Assange hearing continues Monday.

    We could not help but notice that the prosecution was looking extremely groggy on the ropes ahead of this timeout.”

    Indeed.

    Judging from Craig’s simply outstanding reporting, it appears the prosecution is getting smashed to the floor on a regular basis.

    Please excuse my ignorance on the matter but could somebody please confirm whether the hearing is being decided by a jury or by a judge – or, in this case, a magistrate?

    I’m guessing it’s one of the two latter but would be very pleased if someone could confirm otherwise.

    • Ingwe

      [email protected]:40, 12 September 2020-the hearing is before a District Judge (Magistrate’s Court). She is a magistrate, a paid full time lawyer. There is no jury and, if she gives leave an appeal will be heard by the High Court (Administrative) Division.

      • Peter

        @ Ingwe

        Thanks for that.

        So yes, it is as I feared, the outcome is in the hands of Baraitser – deeply troubling given the complete contempt with which she has treated JA to date and her complete disregard for even the most minimal of humanitarian consideration towards JA’s isolated situation.

        However, as Craig is showing, the defence appear to be doing a very good job of comprehensively dismantling the prosecution. Assuming that continues, we must wait to see if, in that case, Baraitser can completely disregard the evidence and give a malicious judgement – she certainly appears up for the job so far.

        Then to the High Court, and then to the ECHR?

        • Ingwe

          @Peter-no, after the High Court, it’s Court of Appeal and then, if leave granted, to the Supreme Court.

          • Ingwe

            @Peter-hopefully some further explanation.

            Just a quick clarification on the relationship between cases in the the U.K. and human rights. Reference is often made to cases of the European Court of Human Rights (ECHR) in Strasbourg. This is an institution of the Council of Europe that hears cases brought against the signatory states of the European Convention on Human Rights.

            The Court of Justice of the European Union (ECJ) in Luxembourg is the supreme court of the European Union.

            The Council of Europe is a distinct entity from the European Union and the Council of Europe has members outside the European Union and includes both Russia and Turkey. When Britain left the EU it didn’t leave the Council of Europe. As a Council of Europe member, the U.K. Is still subject to the European Convention of Human Rights which is incorporated into UK domestic law by the Human Rights Act 1998. So if Mr Assange’s treatment by the UK government breached the EU Convention on Human Rights the recourse would be a case against the UK in the ECHR in Strasbourg.

            The UK government is already talking about repealing the Human Rights Act 1998 though as far as I’m aware, there has been no mention of leaving the Council of Europe. One wonders whether if the UK does breach international law as currently mooted whether the Council of Europe might discuss expelling the U.K. It can then join the pariah states such as the USA, Israel, KSA, UAE etc. Such good company.

  • Jon

    Great reporting as usual Craig, and sadly there isn’t many mainstream outlets that are willing to touch it. I foolishly await the Guardian’s ending to their long-running and spiteful decision not to adequately cover his case.

    For your journalistic work, and in view of your own need for legal funds, £300 is winging its way to you today.

  • Noel Wauchope

    Australia stinks. Apart from a brave effort by Bob Carr, the ABC (Background Briefing) and a few others, the Australian media has ignored Julian Assange. All this while the Australian media recently went on a campaign for “freedom of the press”. ha ha.
    As for the Australian government, and most politicians – mealy mouthed spin about “consular support” – is all you get out of them. Exceptions – Andrew Wilkie and a couple of others. I shouldn’t be surprised. We did the same thing decades ago to Wilfred Burchett – who at least was not an Australian citizen. But Julian Assange is. Surely Julian should get the same compassion and help that the Australian government and press give to Australian drug dealers and murderers who are in legal trouble overseas.

  • JohninMK

    There is some fair comment in the US on all this, not detail though. This link should take you to a segment of the Tucker Carlson show Friday night on Fox News when he interviewed Glen Greenwald. One of the best short analyses of the Assange case I have seen.

    https://youtu.be/hrYN3e4sq8I

    It comes from this thread, which, if you are interested, will take you deep into the 2016 corruption in the US IC. In the first photo the ‘friendly’ looking guys are top left ex CIA boss John Brennan and bottom left FBI Agent Peter Strzok. If this had been in a book it would have been dismissed as totally unrealistic but it happened. We read very little about this in the UK.

    https://theconservativetreehouse.com/2020/09/12/tucker-carlson-questions-doj-aggression-toward-julian-assange/#more-199498

  • JohninMK

    The Russians are following this in detail. These are their last comments

    Technical issues derail proceedings for the rest of the day

    The inability to secure a proper video link between the court and Eric Lewis, who is based in the United States, resulted in the second half of the day being lost. Multiple journalists, including observers working for WikiLeaks, complained of being bumped-off from the video link service with a number not being able to make their way back in. This is the first major technological disruption to be experienced by the court ever since Mr Assange’s substantive extradition hearings recommenced on 7 September 2020, though they are reminiscent of the problems faced by journalistic observers in prior months.

    Sputnik will continue to monitor the extradition hearings having been granted access to view them via secure video link.

    https://sputniknews.com/uk/202009141080454438-espionage-charges-against-assange-an-abuse-of-the-criminal-law-enforcement-power-defence-expert/

  • Damian Cano

    Once again, Bravo! for a bravura report that captures the real life drama, while elucidating the facts and legal points with precision and clarity. Superb. I do not know your legal qualifications Mr. Murray, but you would be an asset to any legal team, particularly in matters of legal nicety and civil liberties and rights. The case against Assange is unarguably political, though the legal hoops obfuscating that plain fact put forth by desperate toadies would be amusing were not the consequences so dire and the stakes so high.

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