Assange Hearing Updates

Assange Hearing Day 6
Published 10 hours ago on September 9, 2020
By Craig Murray


After an adjournment for months, the Assange hearing Day 6 resumes. Judge Baraitser limits all defence witnesses to 30 minutes.

Assange Hearing Day 6: I went to the Old Bailey

today expecting to be awed by the majesty of the law, and left revolted by the sordid administration of injustice. There is a romance which attaches to the Old Bailey. The name of course means fortified enclosure and it occupies a millennia old footprint on the edge of London’s ancient city wall. It is the site of the medieval Newgate Prison, and formal trials have taken place at the Old Bailey for at least 500 years, numbering in the hundreds of thousands. For the majority of that time, those convicted even of minor offences of theft were taken out and executed in the alleyway outside. It is believed that hundreds, perhaps thousands, lie buried under the pavements.
The hefty Gothic architecture of the current grand building dates back no further than 1905, and round the back and sides of that is wrapped some horrible cheap utility building from the 1930’s. It was through a tunnelled entrance into this portion that five of us, Julian’s nominated family and friends, made our nervous way this morning. We were shown to Court 10 up many stairs that seemed like the back entrance to a particularly unloved works canteen. Tiles were chipped, walls were filthy and flakes of paint hung down from crumbling ceilings. Only the security cameras watching us were new – so new, in fact, that little piles of plaster and brick dust lay under each.
Court 10 appeared to be a fairly bright and open modern box, with pleasant light woodwork, jammed as a mezzanine inside a great vault of the old building. A massive arch intruded incongruously into the space and was obviously damp, sheets of delaminating white paint drooping down from it like flags of forlorn surrender. The dock in which Julian would be held still had a bulletproof glass screen in front, like Belmarsh, but it was not boxed in. There was no top to the screen, no low ceiling, so sound could flow freely over and Julian seemed much more in the court. It also had many more and wider slits than the notorious Belmarsh Box, and Julian was able to communicate quite readily and freely through them with his lawyers, which this time he was not prevented from doing.
Rather to our surprise, nobody else was allowed into the public gallery of court 10 but us five. Others like John Pilger and Kristin Hrafnsson, editor in chief of Wikileaks, were shunted into the adjacent court 9 where a very small number were permitted to squint at a tiny screen, on which the sound was so inaudible John Pilger simply left. Many others who had expected to attend, such as Amnesty International and Reporters Without Borders, were simply excluded, as were MPs from the German federal parliament (both the German MPs and Reporters Without Borders at least later got access to the inadequate video following strong representations from the German Embassy).

The reason given that only five of us were allowed in the public gallery of some 40 seats was social distancing; except we were allowed to all sit together in consecutive seats in the front row. The two rows behind us remained completely empty.
To finish scene setting, Julian himself looked tidy and well groomed and dressed, and appeared to have regained a little lost weight, but with a definite unhealthy puffiness about his features. In the morning he appeared disengaged and disoriented rather as he had at Belmarsh, but in the afternoon he perked up and was very much engaged with his defence team, interacting as normally as could be expected in these circumstances.

Proceedings started with formalities related to Julian’s release on the old extradition warrant and re-arrest under the new warrant, which had taken place this morning. Defence and prosecution both agreed that the points they had already argued on the ban on extradition for political offences were not affected by the superseding indictment.
Magistrate Baraitser then made a statement about access to the court by remote hearing, by which she meant online. She stated that a number of access details had been sent out by mistake by the court without her agreement. She had therefore revoked their access permissions.
As she spoke, we in the court had no idea what had happened, but outside some consternation was underway in that the online access of Amnesty International, of Reporters without Borders, of John Pilger and of forty others had been shut down. As these people were neither permitted to attend the court nor observe online, this was causing some consternation.

Baraitser went on to say that it was important that the hearing was public, but she should only agree remote access where it was “in the interests of justice”, and having considered it she had decided it was not. She explained this by stating that the public could normally observe from within the courtroom, where she could control their behaviour. But if they had remote access, she could not control their behaviour and this was not in the “interests of justice”.
Baraitser did not expand on what uncontrolled behaviour she anticipated from those viewing via the internet. It is certainly true that an observer from Amnesty sitting at home might be in their underwear, might be humming the complete soundtrack to Mamma Mia, or might fart loudly. Precisely why this would damage “the interests of justice” we are still left to ponder, with no further help from the magistrate. But evidently the interests of justice were, in her view, best served if almost nobody could examine the “justice” too closely.

The next “housekeeping issue” to be addressed was how witnesses should be heard. The defence had called numerous witnesses, and each had lodged a written statement. The prosecution and Baraitser both suggested that, having given their evidence in writing, there was no need for defence witnesses to give that evidence orally in open court. It would be much quicker to go straight to cross-examination by the prosecution.
For the defence, Edward Fitzgerald QC countered that justice should be seen to be done by the public. The public should be able to hear the defence evidence before hearing the cross-examination. It would also enable Julian Assange to hear the evidence summarised, which was important for him to follow the case given his lack of extended access to legal papers while in Belmarsh prison.
Baraitser stated there could not be any need for evidence submitted to her in writing to be repeated orally. For the defence, Mark Summers QC was not prepared to drop it and tension notably rose in the court. Summers stated it was normal practice for there to be “an orderly and rational exposition of the evidence”. For the prosecution, James Lewis QC denied this, saying it was not normal procedure.
Baraitser stated she could not see why witnesses should be scheduled an one hour forty five minutes each, which was too long. Lewis agreed. He also added that the prosecution does not accept that the defence’s expert witnesses are expert witnesses. A Professor of journalism telling about newspaper coverage did not count. An expert witness should only be giving evidence on a technical point the court was otherwise unqualified to consider. Lewis also objected that in giving evidence orally, defence witnesses might state new facts to which the Crown had not had time to react. Baraitser noted that the written defence statements were published online, so they were available to the public.
Edward Fitzgerald QC stood up to speak again, and Baraitser addressed him in a quite extraordinary tone of contempt. What she said exactly was: “I have given you every opportunity. Is there anything else, really, that you want to say”, the word “really” being very heavily emphasised and sarcastic. Fitzgerald refused to be sat down, and he stated that the current case featured “substantial and novel issues going to fundamental questions of human rights.” It was important the evidence was given in public. It also gave the witnesses a chance to emphasise the key points of their evidence and where they placed most weight.
Baraitser called a brief recess while she considered judgement on this issue, and then returned. She found against the defence witnesses giving their evidence in open court, but accepted that each witness should be allowed up to half an hour of being led by the defence lawyers, to enable them to orient themselves and reacquaint with their evidence before cross-examination.
This half hour for each witness represented something of a compromise, in that at least the basic evidence of each defence witness would be heard by the court and the public (insofar as the public was allowed to hear anything). But the idea that a standard half hour guillotine is sensible for all witnesses, whether they are testifying to a single fact or to developments over years, is plainly absurd. What came over most strongly from this question was the desire of both judge and prosecution to railroad through the extradition with as little of the case against it getting a public airing as possible.
As the judge adjourned for a short break we thought these questions had now been addressed and the rest of the day would be calmer. We could not have been more wrong.
The court resumed with a new defence application, led by Mark Summers QC, about the new charges from the US governments new superseding indictment. Summers took the court back over the history of this extradition hearing. The first indictment had been drawn up in March of 2018. In January 2019 a provisional request for extradition had been made, which had been implemented in April of 2019 on Assange’s removal from the Embassy. In June 2019 this was replaced by the full request with a new, second indictment which had been the basis of these proceedings before today. A whole series of hearings had taken place on the basis of that second indictment.
The new superseding indictment dated from 20 June 2020. In February and May 2020 the US government had allowed hearings to go ahead on the basis of the second indictment, giving no warning, even though they must by that stage have known the new superseding indictment was coming. They had given neither explanation nor apology for this.
The defence had not been properly informed of the superseding indictment, and indeed had learnt of its existence only through a US government press release on 20 June. It had not finally been officially served in these proceedings until 29 July, just six weeks ago. At first, it had not been clear how the superseding indictment would affect the charges, as the US government was briefing it made no difference but just gave additional detail. But on 21 August 2020, not before, it finally became clear in new US government submissions that the charges themselves had been changed.
There were now new charges that were standalone and did not depend on the earlier allegations. Even if the 18 Manning related charges were rejected, these new allegations could still form grounds for extradition. These new allegations included encouraging the stealing of data from a bank and from the government of Iceland, passing information on tracking police vehicles, and hacking the computers both of individuals and of a security company.
“How much of this newly alleged material is criminal is anybody’s guess”, stated Summers, going on to explain that it was not at all clear that an Australian giving advice from outwith Iceland to someone in Iceland on how to crack a code, was actually criminal if it occurred in the UK. This was even without considering the test of dual criminality in the US also, which had to be passed before the conduct was subject to extradition.
It was unthinkable that allegations of this magnitude would be the subject of a Part 2 extradition hearing within six weeks if they were submitted as a new case. Plainly that did not give the defence time to prepare, or to line up witnesses to these new charges. Among the issues relating to these new charges the defence would wish to address, were that some were not criminal, some were out of time limitation, some had already been charged in other fora (including Southwark Crown Court and courts in the USA).
There were also important questions to be asked about the origins of some of these charges and the dubious nature of the witnesses. In particular the witness identified as “teenager” was the same person identified as “Iceland 1” in the previous indictment. That indictment had contained a “health warning” over this witness given by the US Department of Justice. This new indictment removed that warning. But the fact was, this witness is Sigurdur Thordarson, who had been convicted in Iceland in relation to these events of fraud, theft, stealing Wikileaks money and material and impersonating Julian Assange.
The indictment did not state that the FBI had been “kicked out of Iceland for trying to use Thordarson to frame Assange”, stated Summers baldly.
Summers said all these matters should be ventilated in these hearings if the new charges were to be heard, but the defence simply did not have time to prepare its answers or its witnesses in the brief six weeks it had since receiving them, even setting aside the extreme problems of contact with Assange in the conditions in which he was being held in Belmarsh prison.
The defence would plainly need time to prepare answers to these new charges, but it would plainly be unfair to keep Assange in jail for the months that would take. The defence therefore suggested that these new charges should be excised from the conduct to be considered by the court, and they should go ahead with the evidence on criminal behaviour confined to what conduct had previously been alleged.
Summers argued it was “entirely unfair” to add what were in law new and separate criminal allegations, at short notice and “entirely without warning and not giving the defence time to respond to it. What is happening here is abnormal, unfair and liable to create real injustice if allowed to continue.”
The arguments submitted by the prosecution now rested on these brand new allegations. For example, the prosecution now countered the arguments on the rights of whistleblowers and the necessity of revealing war crimes by stating that there can have been no such necessity to hack into a bank in Iceland.
Summers concluded that the “case should be confined to that conduct which the American government had seen fit to allege in the eighteen months of the case” before their second new indictment.
Replying to Summers for the prosecution, Joel Smith QC replied that the judge was obliged by the statute to consider the new charges and could not excise them. “If there is nothing proper about the restitution of a new extradition request after a failed request, there is nothing improper in a superseding indictment before the first request had failed.” Under the Extradition Act the court must decide only if the offence is an extraditable offence and the conduct alleged meets the dual criminality test. The court has no other role and no jurisdiction to excise part of the request.
Smith stated that all the authorities (precedents) were of charges being excised from a case to allow extradition to go ahead on the basis of the remaining sound charges, and those charges which had been excised were only on the basis of double jeopardy. There was no example of charges being excised to prevent an extradition. And the decision to excise charges had only ever been taken after the conduct alleged had been examined by the court. There was no example of alleged conduct not being considered by the court. The defendant could seek extra time if needed but the new allegations must be examined.
Summers replied that Smith was “wrong, wrong, wrong, and wrong”. “We are not saying that you can never submit a new indictment, but you cannot do it six weeks before the substantive hearing.” The impact of what Smith had said amounted to no more than “Ha ha this is what we are doing and you can’t stop us.” A substantive last minute change had been made with no explanation and no apology. It could not be the case, as Smith alleged, that a power existed to excise charges in fairness to the prosecution, but no power existed to excise charges in fairness to the defence.
Immediately Summers sat down, Baraitser gave her judgement on this point. As so often in this hearing, it was a pre-written judgement. She read it from a laptop she had brought into the courtroom with her, and she had made no alterations to that document as Summers and Smith had argued the case in front of her.
Baraitser stated that she had been asked as a preliminary move to excise from the case certain conduct alleged. Mr Summers had described the receipt of new allegations as extraordinary. However “I offered the defence the opportunity to adjourn the case” to give them time to prepare against the new allegations. “I considered of course that Mr Assange was in custody. I hear that Mr Summers believes this is fundamental unfairness”. But “the argument that we haven’t got the time, should be remedied by asking for the time.”
Mr Summers had raised issues of dual criminality and abuse of process; there was nothing preventing him for raising these arguments in the context of considering the request as now presented.
Baraitser simply ignored the argument that while there was indeed “nothing to prevent” the defence from answering the new allegations as each was considered, they had been given no time adequately to prepare. Having read out her pre-prepared judgement to proceed on the basis of the new superseding indictment, Baraitser adjourned the court for lunch.
At the end of the day I had the opportunity to speak to an extremely distinguished and well-known lawyer on the subject of Baraitser bringing pre-written judgements into court, prepared before she had heard the lawyers argue the case before her. I understood she already had seen the outline written arguments, but surely this was wrong. What was the point in the lawyers arguing for hours if the judgement was pre-written? What I really wanted to know was how far this was normal practice.
The lawyer replied to me that it absolutely was not normal practice, it was totally outrageous. In a long and distinguished career, this lawyer had very occasionally seen it done, even in the High Court, but there was always some effort to disguise the fact, perhaps by inserting some reference to points made orally in the courtroom. Baraitser was just blatant. The question was, of course, whether it was her own pre-written judgement she was reading out, or something she had been given from on high.
This was a pretty shocking morning. The guillotining of defence witnesses to hustle the case through, indeed the attempt to ensure their evidence was not spoken in court except those parts which the prosecution saw fit to attack in cross-examination, had been breathtaking. The effort by the defence to excise the last minute superseding indictment had been a fundamental point disposed of summarily. Yet again, Baraitser’s demeanour and very language made little attempt to disguise a hostility to the defence.
We were for the second time in the day in a break thinking that events must now calm down and get less dramatic. Again we were wrong.
Court resumed forty minutes late after lunch as various procedural wrangles were addressed behind closed doors. As the court resumed, Mark Summers for the defence stood up with a bombshell.
Summers said that the defence “recognised” the judgement Baraitser had just made – a very careful choice of word, as opposed to “respected” which might seem more natural. As she had ruled that the remedy to lack of time was more time, the defence was applying for an adjournment to enable them to prepare the answers to the new charges. They did not do this lightly, as Mr Assange would continue in prison in very difficult conditions during the adjournment.
Summers said the defence was simply not in a position to gather the evidence to respond to the new charges in a few short weeks, a situation made even worse by Covid restrictions. It was true that on 14 August Baraitser had offered an adjournment and on 21 August they had refused the offer. But in that period of time, Mr Assange had not had access to the new charges and they had not fully realised the extent to which these were a standalone new case. To this date, Assange had still not received the new prosecution Opening Note in prison, which was a crucial document in setting out the significance of the new charges.
Baraitser pointedly asked whether the defence could speak to Assange in prison by telephone. Summers replied yes, but these were extremely short conversations. They could not phone Mr Assange; he could only call out very briefly on the prison payphone to somebody’s mobile, and the rest of the team would have to try to gather round to listen. It was not possible in these very brief discussions adequately to expound complex material. Between 14 and 21 August they had been able to have only two such very short phone calls. The defence could only send documents to Mr Assange through the post to the prison; he was not always given them, or allowed to keep them.
Baraitser asked how long an adjournment was being requested. Summers replied until January.
For the US government, Mark Lewis QC replied that more scrutiny was needed of this request. The new matters in the indictment were purely criminal. They do not affect the arguments about the political nature of the case, or affect most of the witnesses. If more time were granted, “with the history of this case, we will just be presented with a sleigh of other material which will have no bearing on the small expansion of count 2”.
Baraitser adjourned the court “for ten minutes” while she went out to consider her judgement. In fact she took much longer. When she returned she looked peculiarly strained.
Baraitser ruled that on 14 August she had given the defence the opportunity to apply for an adjournment, and given them seven days to decide. On 21 August the defence had replied they did not want an adjournment. They had not replied that they had insufficient time to consider. Even today the defence had not applied to adjourn but rather had applied to excise charges. They “cannot have been surprised by my decision” against that application. Therefore they must have been prepared to proceed with the hearing. Their objections were not based on new circumstance. The conditions of Assange in Belmarsh had not changed since 21 August. They had therefore missed their chance and the motion to adjourn was refused.
The courtroom atmosphere was now highly charged. Having in the morning refused to cut out the superseding indictment on the grounds that the remedy for lack of time should be more time, Baraitser was now refusing to give more time. The defence had called her bluff; the state had apparently been confident that the effective solitary confinement in Belmarsh was so terrible that Assange would not request more time. I rather suspect that Julian was himself bluffing, and made the call at lunchtime to request more time in the full expectation that it would be refused, and the rank hypocrisy of the proceedings exposed.
I previously blogged about how the procedural trickery of the superseding indictment being used to replace the failing second indictment – as Smith said for the prosecution “before it failed” – was something that sickened the soul. Today in the courtroom you could smell the sulphur.
Well, yet again we were left with the feeling that matters must now get less exciting. This time we were right and they became instead excruciatingly banal. We finally moved on to the first witness, Professor Mark Feldstein, giving evidence to the court by videolink for the USA. It was not Professor Feldstein’s fault the day finished in confused anti-climax. The court was unable to make the video technology work. For ten broken minutes out of about forty Feldstein was briefly able to give evidence, and even this was completely unsatisfactory as he and Mark Summers were repeatedly speaking over each other on the link.
Professor Feldstein’s evidence will resume tomorrow (now in fact today) and I think rather than split it I shall give the full account then. Meantime you can see these excellent summaries from Kevin Gosztola or the morning and afternoon reports from James Doleman. In fact, I should be grateful if you did, so you can see that I am neither inventing nor exaggerating the facts of these startling events.
If you asked me to sum up today in a word, that word would undoubtedly be “railroaded”. it was all about pushing through the hearing as quickly as possible and with as little public exposure as possible to what is happening. Access denied, adjournment denied, exposition of defence evidence denied, removal of superseding indictment charges denied. The prosecution was plainly failing in that week back in Woolwich in February, which seems like an age ago. It has now been given a new boost.
How the defence will deal with the new charges we shall see. It seems impossible that they can do this without calling new witnesses to address the new facts. But the witness lists had already been finalised on the basis of the old charges. That the defence should be forced to proceed with the wrong witnesses seems crazy, but frankly, I am well past being surprised by anything in this fake process.
You are free to republish this article, including in translation, without further permission. A brief note left in comments below detailing where it is republished is appreciated.

https://thefreedomarticles.com/assange-hearing-day-6/

Thanks to MB for the forward and: https://thefreedomarticles.com

Your Man in the Public Gallery: Assange Hearing Day 7

 j    September 9, 2020
September 9, 2020 

CLIVE STAFFORD SMITH
This morning we went straight in to the evidence of Clive Stafford
Smith, a dual national British/American lawyer licensed to practice in
the UK. He had founded Reprieve in 1999 originally to oppose the death
penalty, but after 2001 it had branched out into torture, illicit
detention and extraordinary rendition cases in relation to the “war on
terror”.
Clive Stafford Smith testified that the publication by Wikileaks of
the cables had been of great utility to litigation in Pakistan against
illegal drone strikes. As Clive’s witness statement put it at paras 86/7:

86. One of my motivations for working on these cases was
that the U.S. drone campaign appeared to be horribly mismanaged and was
resulting in paid informants giving false information about innocent
people who were then killed in strikes. For example, when I shared the
podium with Imran Khan at a “jirga” with the victims of drone strikes, I
said in my public remarks that the room probably contained one or two
people in the pay of the CIA. What I never guessed was that not only was
this true but that the informant would later make a false statement
about a teenager who attended the jirga such that he and his cousin were
killed in a drone strike three days later. We knew from the official
press statement afterwards that the “intelligence” given to the U.S.
involved four “militants” in a car; we knew from his family just him and
his cousin going to pick up an aunt. There is a somewhat consistent
rule that can be seen at work here: it is, of course, much safer for any
informant to make a statement about someone who is a “nobody”, than
someone who is genuinely dangerous.
87. This kind of horrific action was provoking immense anger, causing
America’s status in Pakistan to plummet, and was making life more
dangerous for Americans, not less.

Legal action dependent on the evidence about US drones strike policy
revealed by Wikileaks had led to a judgement against assassination by
the Chief Justice of Pakistan and to a sea change to public attitudes to
drone strikes in Waziristan. One result had been a stopping of drone
strikes in Waziristan.
Wikileaks released cables also revealed US diplomatic efforts to
block international investigation into cases of torture and
extraordinary rendition. This ran counter to the legal duty of the
United States to cooperate with investigation of allegations of torture
as mandated in Article 9 of the [url=https://treaties.un.org/doc/Treaties/1987/06/19870626 02-38 AM/Ch_IV_9p.pdf]UN Convention Against Torture[/url].
Stafford Smith continued that an underrated document released by
Wikileaks was the JPEL, or US military Joint Priority Effects List for
Afghanistan, in large part a list of assassination targets. This
revealed a callous disregard of the legality of actions and a puerile
attitude to killing, with juvenile nicknames given to assassination
targets, some of which nicknames appeared to indicate inclusions on the
list by British or Australian agents.
Stafford Smith gave the example of Bilal Abdul Kareem, and American
citizen and journalist who had been the subject of five different US
assassination attempts, using hellfire missiles fired from drones.
Stafford Smith was engaged in ongoing litigation in Washington on
whether “the US Government has the right to target its own citizens who
are journalists for assassination.”
Stafford Smith then spoke of Guantanamo and the emergence of evidence
that many detainees there are not terrorists but had been swept up in
Afghanistan by a system dependent on the payment of bounties. The
Detainee Assessment Briefs released by Wikileaks were not independent
information but internal US Government files containing the worst
allegations that the US had been able to “confect” against prisoners
including Stafford Smith’s clients, and often get them to admit under
torture.
These documents were US government allegations and when Wikileaks
released them it was his first thought that it was the US Government who
had released them to discredit defendants. The documents could not be a
threat to national security.
Inside Guantanamo a core group of six detainees had turned informant
and were used to make false allegations against other detainees.
Stafford Smith said it was hard to blame them – they were trying to get
out of that hellish place like everybody else. The US government had
revealed the identities of those six, which put into perspective their
concern for protecting informants in relation to Wikileaks releases.
Clive Stafford Smith said he had been “profoundly shocked” by the
crimes committed by the US government against his clients. These
included torture, kidnapping, illegal detention and murder. The murder
of one detainee at Baghram Airport in Afghanistan had been justified as a
permissible interrogation technique to put fear into other detainees.
In 2001, he would never have believed the US Government could have done
such things.
Stafford Smith spoke of use of Spanish Inquisition techniques, such
as strapado, or hanging by the wrists until the shoulders slowly
dislocate. He told of the torture of Binyam Mohammed, a British citizen
who had his genitals cut daily with a razor blade. The British
Government had avoided its legal obligations to Binyam Mohammed, and had
leaked to the BBC the statement he had been forced to confess to under
torture, in order to discredit him.
At this point Baraitser intervened to give a five minute warning on
the 30 minute guillotine on Stafford Smith’s oral evidence. Asked by
Mark Summers for the defence how Wikileaks had helped, Stafford Smith
said that many of the leaked documents revealed illegal kidnapping,
rendition and torture and had been used in trials. The International
Criminal Court had now opened an investigation into war crimes in Afghanistan, in which decision Wikileaks released material had played a part.
Mark Summers asked what had been the response of the US Government to
the opening of this ICC investigation. Clive Stafford Smith stated that
an Executive Order had been issued initiating sanctions against any
non-US citizen who cooperated with or promoted the ICC investigation
into war crimes by the US. He suggested that Mr Summers would now be
subject to US sanction for promoting this line of questioning.
Mr Stafford Smith’s 30 minutes was now up. You can read his full statement here.
There could not have been a clearer example from the first witness of
why so much time yesterday was taken up with trying to block the
evidence of defence witnesses from being heard. Stafford Smith’s
evidence was breathtaking stuff and clearly illustrated the purpose of
the time guillotine on defence evidence. This is not material
governments wish to be widely aired.
James Lewis QC then cross-examined Clive Stafford Smith for the
prosecution. He noted that references to Wikileaks in Stafford Smith’s
written evidence were few and far between. He suggested that Stafford
Smith’s evidence had tended to argue that Wikileaks disclosures were in
the public interest; but there was specifically no public interest
defence allowed in the UK Official Secrets Act.
Stafford Smith replied that may be, but he knew that was not the case in America.
Lewis then said that in Stafford Smith’s written evidence paras 92-6
he had listed specific Wikileaks cables which related to disclosure of
drone policy. But publication of these particular cables did not form
part of the indictment. Lewis read out part of an affidavit from US
Assistant Attorney Kromberg which stated that Assange was being indicted
only for cables containing the publication of names of informants.
Stafford Smith replied that Kromberg may state that, but in practice
that would not be the case in the United States. The charge was of
conspiracy, and the way such charges were defined in the US system would
allow the widest inclusion of evidence. The first witness at trial
would be a “terrorism expert” who would draw a wide and far reaching
picture of the history of threat against the USA.
Lewis asked whether Stafford Smith had read the indictment. He replied he had read the previous indictment, but not the new superseding indictment.
Lewis stated that the cables Stafford Smith quoted had been published
by the Washington Post and the New York Times before they were
published by Wikileaks. Stafford Smith responded that was true, but he
understood those newspapers had obtained them from Wikileaks. Lewis then
stated that the Washington Post and New York Times were not being
prosecuted for publishing the same information; so how could the
publication of that material be relevant to this case?
Lewis quoted Kromberg again:

“The only instance in which the superseding indictment
encompasses the publication of documents, is where those documents
contains names which are put at risk”.

Stafford Smith again responded that in practice that was not how the
case would be prosecuted in the United States. Lewis asked if Stafford
Smith was calling Kromberg a liar.
At this point Julian Assange called out from the dock “This is
nonsense. Count 1 states throughout “conspiracy to publish”. After a
brief adjournment, Baraitser warned Julian he would be removed from the
court if he interrupted proceedings again.
Stafford Smith said he had not said that Kromberg was a liar, and had
not seen the full document from which Lewis was selectively quoting at
him. Count 1 of the indictment is conspiracy to obtain national security
information and this references dissemination to the public in a sub
paragraph. This was not limited in the way Kromberg suggests and his
claim did not correspond to Stafford Smith’s experience of how national
security trials are in fact prosecuted in the United States.
Lewis reiterated that nobody was being prosecuted for publishing
except Assange, and this only related to publishing names. He then asked
Stafford Smith whether he had ever been in a position of responsibility
for classifying information, to which he got a negative reply. Lewis
then asked if had ever been in an official position to declassify
documents. Stafford Smith replied no, but he held US security clearance
enabling him to see classified material relating to his cases, and had
often applied to have material declassified.
Stafford Smith stated that Kromberg’s assertion that the ICC
investigation was a threat to national security was nonsense [I confess I
am not sure where this assertion came from or why Stafford Smith
suddenly addressed it]. Lewis suggested that the question of harm to US
national interest from Assange’s activities was best decided by a jury
in the United States. The prosecution had to prove damage to the
interests of the US or help to an enemy of the US.
Stafford Smith said that beyond the government adoption of torture,
kidnapping and assassination, he thought the post-2001 mania for
over-classification of government information was an even bigger threat
to the American way of life. He recalled his client Moazzam Begg – the
evidence of Moazzam’s torture was classified “secret” on the grounds
that knowledge that the USA used torture would damage American
interests.
Lewis then took Stafford Smith to a passage in the book “Wikileaks;
Inside Julian Assange’s War on Secrecy”, in which Luke Harding stated
that he and David Leigh were most concerned to protect the names of
informants, but Julian Assange had stated that Afghan informants were
traitors who merited retribution. “They were informants, so if they got
killed they had it coming.” Lewis tried several times to draw Stafford
Smith into this, but Stafford Smith repeatedly said he understood these
alleged facts were under dispute and he had no personal knowledge.
Lewis concluded by again repeating that the indictment only covered
the publication of names. Stafford Smith said that he would eat his hat
if that was all that was introduced at trial.
In re-examination, Mark Summers said that Lewis had characterised the
disclosure of torture, killing and kidnapping as “in the public
interest”. Was that a sufficient description? Stafford Smith said no, it
was also the provision of evidence of crime; war crime and illegal
activity.
Summers asked Stafford Smith to look at the indictment as a US lawyer
(which Stafford Smith is) and see if he agreed with the
characterisation by Lewis that it only covered publication where names
were revealed. Summers read out this portion of the superseding
indictment:

and pointed out that the “and” makes the point on documents
mentioning names an additional category of document, not a restriction
on the categories listed earlier. You can read the full superseding
indictment here;
be careful when browsing as there are earlier superseding indictments;
the US Government changes its indictment in this case about as often as
Kim Kardashian changes her handbag.
Summers also listed Counts 4, 7, 10, 13 and 17 as also not limited to the naming of informants.
Stafford Smith again repeated his rather different point that in
practice Kromberg’s assertion does not actually match how such cases are
prosecuted in the US anyway. In answer to a further question, he
repeated that the US government had itself released the names of its
Guantanamo Bay informants.
In regard to the passage quoted from David Leigh, Summers asked
Stafford Smith “Do you know that Mr Harding has published untruths in
the press”. Lewis objected and Summers withdrew (although this is certainly true).
This concluded Clive Stafford Smith’s evidence. Before the next
witness, Lewis put forward an argument to the judge that it was beyond
dispute that the new indictment only related, as far as publication
being an offence was concerned, to publication of names of defendants.
Baraitser had replied that plainly this was disputed and the matter
would be argued in due course.
PROFESSOR MARK FELDSTEIN
The afternoon resumed the evidence of Professor Mark Feldstein, begun
sporadically amid technical glitches on Monday. For that reason I held
off reporting the false start until now; I here give it as one account.
Prof Feldstein’s full witness statement is here.
Professor Feldstein is Chair of Broadcast Journalism at Maryland
University and had twenty years experience as an investigative
journalist.
Feldstein stated that leaking of classified information happens with
abandon in the United States. Government officials did it frequently.
One academic study estimated such leaks as “thousands upon thousands”.
There were journalists who specialised in national security and received
Pulitzer prizes for receiving such leaks on military and defence
matters. Leaked material is published on a daily basis.
Feldstein stated that “The first amendment protects the press, and it
is vital that the First Amendment does so, not because journalists are
privileged, but because the public have the right to know what is going
on”. Historically, the government had never prosecuted a publisher for
publishing leaked secrets. They had prosecuted whistleblowers.
There had been historical attempts to prosecute individual
journalists, but all had come to nothing and all had been a specific
attack on a perceived Presidential enemy. Feldstein had listed three
instances of such attempts, but none had reached a grand jury.
[This is where the technology broke down on Monday. We now resume with Tuesday afternoon.]
Mark Summers asked Prof Feldstein about the Jack Anderson case.
Feldstein replied he had researched this for his book “Poisoning the
Press”. Nixon had planned to prosecute Anderson under the Espionage Act
but had been told by his Attorney General the First Amendment made it
impossible. Consequently Nixon had conducted a campaign against Anderson
that included anti-gay smears, planting a spy in his office and
foisting forged documents on him. An assassination plot by poison had
even been discussed.
Summers took Feldstein to his evidence on “Blockbuster” newspaper stories based on Wikileaks publications:

• A disturbing videotape of American
  soldiers firing on a crowd from a helicopter above Baghdad, killing at
  least 18 people; the soldiers laughed as they targeted unarmed
  civilians, including two Reuters journalists.
  
• US officials gathered detailed and
  often gruesome evidence that approximately 100,000 civilians were killed
  after its invasion of Iraq, contrary to the public claims of President
  George W. Bush’s administration, which downplayed the deaths and
  insisted that such statistics were not maintained. Approximately 15,000
  of these civilians killings had never been previously disclosed
  anywhere.
  
• American forces in Iraq routinely
  turned a blind eye when the US-backed government there brutalized
  detainees, subjecting them to beatings, whippings, burnings, electric
  shock, and sodomy.
  
• After WikiLeaks published vivid
  accounts compiled by US diplomats of rampant corruption by Tunisian
  president Zine el-Abidine Ben Ali and his family, ensuing street
  protests forced the dictator to flee to Saudia Arabia. When the unrest
  in Tunisia spread to other Mideast countries,WikiLeaks was widely hailed
  as a key catalyst for this “Arab Spring.”
  
• In Afghanistan, the US deployed a
  secret “black” unit of special forces to hunt down “high value” Taliban
  leaders for “kill or capture” without trial.
  
• The US government expanded secret
  intelligence collection by its diplomats at the United Nations and
  overseas, ordering envoys to gather credit card numbers, work schedules,
  and frequent flier numbers of foreign dignitaries—eroding the
  distinction between foreign service officers and spies.
  
• Saudi Arabian King Abdullah secretly
  implored the US to “cut off the head of the snake” and stop Iran from
  developing nuclear weapons even as private Saudi donors were the
  number-one source of funding to Sunni terrorist groups worldwide.
  
• Customs officials caught Afghanistan’s
  vice president carrying $52 million in unexplained cash during a trip
  abroad, just one example of the endemic corruption at the highest levels
  of the Afghan government that the US has helped prop up.
  
• The US released “high risk enemy
  combatants” from its military prison in Guantanamo Bay, Cuba who then
  later turned up again in Mideast battlefields. At the same time,
  Guantanamo prisoners who proved harmless—such as an 89-year-old Afghan
  villager suffering from senile dementia—were held captive for years.
  
• US officials listed Pakistan’s
  intelligence service as a terrorist organization and found that it had
  plotted with the Taliban to attack American soldiers in Afghanistan—even
  though Pakistan receives more than $1 billion annually in US aid.
  Pakistan’s civilian president, Asif Ali Zardari, confided that he had
  limited control to stop this and expressed fear that his own military
  might “take me out.”
  

Feldstein agreed that many of these had revealed criminal acts and
war crimes, and they were important stories for the US media. Summers
asked Feldstein about Assange being charged with soliciting classified
information. Feldstein replied that gathering classified information is
“standard operating procedure” for journalists. “My entire career
virtually was soliciting secret documents or records”
Summers pointed out that one accusation was that Assange helped
Manning cover her tracks by breaking a password code. “Trying to help
protect your source is a journalistic obligation” replied Feldstein.
Journalists would provide sources with payphones, fake email accounts,
and help them remove fingerprints both real and digital. These are
standard journalistic techniques, taught at journalism college and
workshops.
Summers asked about disclosure of names and potential harm to people.
Feldstein said this was “easy to assert, hard to establish”. Government
claims of national security damage were routinely overblown and should
be treated with scepticism. In the case of the Pentagon Papers, the
government had claimed that publication would identify CIA agents,
reveal military plans and lengthen the Vietnam War. These claims had all
proven to be untrue.
On the White House tapes Nixon had been recorded telling his aides to
“get” the New York Times. He said their publications should be “cast in
terms of aid and comfort to the enemy”.
Summers asked about the Obama administration’s attitude to Wikileaks.
Feldstein said that there had been no prosecution after Wikileaks’
major publications in 2010/11. But Obama’s Justice Department had
instigated an “aggressive investigation”. However they concluded in 2013
that the First Amendment rendered any prosecution impossible. Justice
Department Spokesman Matthew Miller had published that they thought it
would be a dangerous precedent that could be used against other
journalists and publications.
With the Trump administration everything had changed. Trump had said
he wished to “put reporters in jail”. Pompeo when head of the CIA had
called Wikileaks a “hostile intelligence agency”. Sessions had declared
prosecuting Assange “a priority”.
James Lewis then rose to cross-examine Feldstein. He adopted a
particularly bullish and aggressive approach, and started by asking
Feldstein to confine himself to very short, concise answers to his
precise questions. He said that Feldstein “claimed to be” an expert
witness, and had signed to affirm that he had read the criminal
procedural rules. Could he tell the court what those rules said?
This was plainly designed to trip Feldstein up. I am sure I must have
agreed WordPress’s terms and conditions in order to be able to publish
this blog, but if you challenged me point blank to recall what they say I
would struggle. However Feldstein did not hesitate, but came straight
back saying that he had read them, and they were rather different to the
American rules, stipulating impartiality and objectivity.
Lewis asked what Feldstein’s expertise was supposed to be. Feldstein
replied the practice, conduct and history of journalism in the United
States. Lewis asked if Feldstein was legally qualified. Feldstein
replied no, but he was not giving legal opinion. Lewis asked if he had
read the indictment. Feldstein replied he had not read the most recent indictment.
Lewis said that Feldstein had stated that Obama decided not to
prosecute whereas Trump did. But it was clear that the investigation had
continued through from the Obama to the Trump administrations.
Feldstein replied yes, but the proof of the pudding was that there had
been no prosecution under Obama.
Lewis referred to a Washington Post article from which Feldstein had
quoted in his evidence and included in his footnotes, but had not
appended a copy. “Was that because it contained a passage you do not
wish us to read?” Lewis said that Feldstein had omitted the quote that
“no formal decision had been made” by the Obama administration, and a
reference to the possibility of prosecution for activity other than
publication.
Feldstein was plainly slightly rattled by Lewis’ accusation of
distortion. He replied that his report stated that the Obama
administration did not prosecute, which was true. He had footnoted the
article; he had not thought he needed to also provide a copy. He had
exercised editorial selection in quoting from the article.
Lewis said that from other sources, a judge had stated in District
Court that investigation was ongoing and District Judge Mehta had said
other prosecutions against persons other than Manning were being
considered. Why had Feldstein not included this information in his
report? Assange’s lawyer Barry J Pollock had stated “they are not
informing us they are closing the investigation or have decided not to
charge.” Would it not be fair to add that to his report?
Prof Feldstein replied that Assange and his lawyers would be hard to
convince that the prosecution had been dropped, but we know that no new
information had in 2015/16 been brought to the Grand Jury.
Lewis stated that in 2016 Assange had offered to go to the United
States to face charges if Manning were granted clemency. Does this not
show the Obama administration was intending to charge? Should this not
have been in his report? Feldstein replied no, because it was
irrelevant. Assange was not in a position to know what Obama’s Justice
Department was doing. The subsequent testimony of Obama Justice
Department insiders was much more valuable.
Lewis asked if the Obama administration had decided not to prosecute,
why would they keep the Grand Jury open? Feldstein replied this
happened very frequently. It could be for many reasons, including to
collect information on alleged co-conspirators, or simply in the hope of
further new evidence.
Lewis suggested that the most Feldstein might honestly say was that
the Obama administration had intimated that they would not prosecute for
passively obtained information, but that did not extend to a decision
not to prosecute for hacking with Chelsea Manning. “If Obama did not
decide not to prosecute, and the investigation had continued into the
Trump administration, then your diatribe against Trump becomes otiose.”
Lewis continued that the “New York Times problem” did not exist
because the NYT had only published information it had passively
received. Unlike Assange, the NYT had not conspired with Manning
illegally to obtain the documents. Would Prof Feldstein agree that the
First Amendment did not defend a journalist against a burglary or theft
charge? Feldstein replied that a journalist is not above the law. Lewis
then asked Feldstein whether a journalist had a right to “steal or
unlawfully obtain information” or “to hack a computer to obtain
information.” Each time Feldstein replied “no”.
Lewis then asked if Feldstein accepted that Bradley (sic) Manning had
committed a crime. Feldstein replied “yes”. Lewis then asked “If
Assange aided and abetted, consulted or procured or entered into a
conspiracy with Bradley Manning, has he not committed a crime?”
Feldstein said that would depend on the “sticky details.”
Lewis then restated that there was no allegation that the NYT entered
into a conspiracy with Bradley Manning, only Julian Assange. On the
indictment, only counts 15, 16 and 17 related to publishing and these
only to publishing of unredacted documents. The New York Times, Guardian
and Washington Post had united in condemnation of the publication by
Wikileaks of unredacted cables containing names. Lewis then read out
again the same quote from the Leigh/Harding book he had put to Stafford
Smith, stating that Julian Assange had said the Afghan informants would
deserve their fate.
Lewis asked: “Would a responsible journalist publish unredacted names
of an informant knowing he is in danger when it is unnecessary to do so
for the purpose of the story”. Prof Feldstein replied “no”. Lewis then
went on to list examples of information it might be proper for
government to keep secret, such as “troop movements in war, nuclear
codes, material that would harm an individual” and asked if Feldstein
agreed these were legitimate secrets. Feldstein replied “yes”.
Lewis then asked rhetorically whether it was not more fair to allow a
US jury to be the judge of harm. He then asked Feldstein: “You say in
your report that this is a political prosecution. But a Grand jury has
supported the prosecution. Do you accept that there is an evidentiary
basis for the prosecution?”. Feldstein replied “A grand jury has made
that decision. I don’t know that it is true.” Lewis then read out a
statement from US Assistant Attorney Kromberg that prosecution decisions
are taken by independent prosecutors who follow a code that precludes
political factors. He asked Feldstein if he agreed that independent
prosecutors were a strong bulwark against political prosecution.
Feldstein replied “That is a naive view.”
Lewis then asked whether Feldstein was claiming that President Trump
or his Attorney General had ordered this prosecution without a factual
basis. The professor replied he had no doubt it was a political
prosecution, this was based on 1) its unprecedented nature 2) the
rejection of prosecution by Obama but decision to prosecute now with no
new evidence 3) the extraordinary wide framing of the charges 4)
President Trump’s narrative of hostility to the press. “It’s political”.
Mark Summers then re-examined Professor Feldstein. He said that Lewis
had suggested that Assange was complicit in Manning obtaining
classified information but the New York Times was not. Is it your
understanding that to seek to help an official leaker is a crime?
Professor Feldstein replied “No, absolutely not”.
“Do journalists ask for classified information?”
“Yes.”
“Do journalists solicit such information?”
“Yes.”
“Are you aware of any kind of previous prosecution for this kind of activity.”
“No. Absolutely not.”
“Could you predict it would be criminalised?”
“No, and it is very dangerous.”
Summers than asked Professor Feldstein what the New York Times had
done to get the Pentagon Papers from Daniel Ellsberg. Feldstein replied
they were very active in soliciting the papers. They had a key to the
room that held the documents and had helped to copy them. They had
played an active not a passive role. “Journalists are not passive
stenographers.”
Summers reminded Prof Feldstein that he had been asked about hacking.
What if the purpose of the hacking was not to obtain the information,
but to disguise the source? This was the specific allegation spelt out
in Kromberg memorandum 4 paras 11 to 14. Professor Feldstein replied
that protecting sources is an obligation. Journalists work closely with,
conspire with, cajole, encourage, direct and protect their sources.
That is journalism.
Summers asked Prof Feldstein if he maintained his caution in
accepting government claims of harm. Feldstein replied absolutely. The
government track record demanded caution. Summers pointed out that there
is an act which specifically makes illegal the naming of intelligence
sources, the Intelligence Identities Protection Act. Prof Feldstein said
this was true; the fact that the charge was not brought under the IIPA
proves that it is not true that the prosecution is intended to be
limited to revealing of identities and in fact it will be much broader.
Summers concluded by saying that Lewis had stated that Wikileaks had
released the unredacted cables in a mass publication. Would it change
the professor’s assessment if the material had already been released by
others. Prof Feldstein said his answers were not intended to indicate he
accepted the government narrative.
Edward Fitzgerald QC then took over for the defence. He put to Prof
Feldstein that there had been no prosecution of Assange when Manning was
prosecuted, and Obama had given Manning clemency. These were
significant facts. Feldstein agreed.
Fitzgerald then said that the Washington Post article from which
Lewis complained Feldstein had quoted selectively, contained a great
deal more material Feldstein had also not quoted but which strongly
supported his case, for example “Officials told the Washington Post last
week that there is no sealed indictment and the Department had “all but
concluded that they would not bring a charge.”” It further stated that
when Snowden was charged, Greenwald was not, and the same approach was
followed with Manning/Assange. So overall the article confirmed
Feldstein’s thesis, as contained in his report. Feldstein agreed. There
was then discussion of other material that could have been included to
support his thesis.
Fitzgerald concluded by asking if Feldstein were familiar with the
phrase “a grand jury would indict a ham sandwich”. Feldstein replied it
was common parlance and indicated the common view that grand juries were
malleable and almost always did what prosecutors asked them to do.
There was a great deal of academic material on this point.
THOUGHTS
Thus concluded another extraordinary day. Once again, there were just
five of us in the public gallery (in 42 seats) and the six allowed in
the overflow video gallery in court 9 was reduced to three, as three
seats were reserved by the court for “VIPs” who did not show up.
The cross-examinations showed the weakness of the thirty minute
guillotine adopted by Baraitser, with really interesting defence
testimony cut short, and then unlimited time allowed to Lewis for his
cross examination. This was particularly pernicious in the evidence of
Mark Feldstein. In James Lewis’ extraordinary cross-examination of
Feldstein, Lewis spoke between five and ten times as many words as the
actual witness. Some of Lewis’s “questions” went on for many minutes,
contained huge passages of quote and often were phrased in convoluted
double negative. Thrice Feldstein refused to reply on grounds he could
not make out where the question lay. With the defence initial statement
of the evidence limited to half an hour, Lewis’s cross examination
approached two hours, a good 80% of which was Lewis speaking.
Feldstein was browbeaten by Lewis and plainly believed that when
Lewis told him to answer in very brief and concise answers, Lewis had
the authority to instruct that. In fact Lewis is not the judge and it
was supposed to be Feldstein’s evidence, not Lewis’s. Baraitser failed
to protect Feldstein or to explain his right to frame his own answers,
when that was very obviously a necessary course for her to take.
Today we had two expert witnesses, who had both submitted lengthy
written testimony relating to one indictment, which was now being
examined in relation to a new superseding indictment, exchanged at the
last minute, and which neither of them had ever seen. Both specifically
stated they had not seen the new indictment. Furthermore this new
superseding indictment had been specifically prepared by the prosecution
with the benefit of having heard the defence arguments and seen much of
the defence evidence, in order to get round the fact that the
indictment on which the hearing started was obviously failing.
On top of which the defence had been refused an adjournment to
prepare their defence against the new indictment, which would have
enabled these and other witnesses to see the superseding indictment,
adjust their evidence accordingly and be prepared to be cross-examined
in relation to it.
Clive Stafford Smith testified today that in 2001 he would not have
believed the outrageous crimes that were to be perpetrated by the US
government. I am obliged to say that I simply cannot believe the blatant
abuse of process that is unfolding before my eyes in this courtroom.
 
 
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via Your Man in the Public Gallery: Assange Hearing Day 7

https://jonsnewplace.wordpress.com/2020/09/09/your-man-in-the-public-gallery-assange-hearing-day-7/

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