The EXB Assange courtroom weekly: Week 2

Exberliner has a digital seat inside London's Old Bailey, where Julian Assange is fighting against extradition to the US. Here's a recap of the last week's hearings, as remotely observed from our Mitte office.

In Week 1, we shared our experience navigating the court's cloud video platform (CVP) system, as the lawyers struggle to make their way through witness testimony. Members of the European Parliament who were unexpectedly blocked from observing the trial have called on judicial authorities to restore their access to the proceedings. We have been watching every day from 11:00 to 17:00 (10:00 to 16:00 London time). (Here’s why we at EXB give a shit about the Assange trial.)

Bottom line up front

This week, ten defence witnesses gave testimony, of which seven were intensely cross examined. The prosecution attempted to block Khalid El-Masri, a victim of CIA torture, and Julian Assange interrupted proceedings by speaking out in favor of having El-Masri's experience be heard by the court. Instead, his statement was read into the record. Celebrity whistleblower Daniel Ellsberg, who released the Pentagon Papers, was the highlight witness of the week.

We heard from media partners who described the extensive source protection processes and technical implementations behind WikiLeaks' editorial decisions leading up to and during the 2010 publications. The prosecution conveyed satisfaction regarding jail and prison conditions in the U.S., while downplaying the present risk of Covid-19 wherever Assange may be held in custody if he is extradited. Jennifer Robinson's submission covered a Republican Congressman's visit to the Ecuadorian Embassy in 2017. The Congressman reportedly offered a quid pro quo pardon on behalf of President Trump, and Assange did not accept on source protection grounds.

The players

The hearings are presided over by District Judge Vanessa Baraitser, herself supervised by Judge Emma Arbuthnot. The prosecution team representing the U.S. government is staffed by James Lewis QC, Clair Dobbin, and Joel Smith. The defence team representing Assange includes solicitor Gareth Pierce, who sits in the back of the courtroom; barristers Mark Summers QC and Edward Fitzgerald QC occupy the front defence bench. A new barrister for the defence, Florence Iveson, spoke on Thursday. A limited number of observers are allowed in the jury box and public gallery directly in the courtroom, and there is a secondary overflow courtroom with a video feed for local media.

Monday, Day Five: "I love WikiLeaks!" (Donald Trump)

Following a coronavirus scare that cut short last week's schedule, defense barrister Mark Summers QC expressed concern that his client did not have adequate access to protective masks. Judge Baraitser replied that Assange must have the opportunity to wear a mask in court should he choose to do so. Assange was seen wearing a mask each day of the week.

• ERIC LEWIS, lawyer and chairman of the board for Reprieve, was the fifth expert witness. He spoke about the pre-trial treatment and prison conditions that Assange would likely to be subjected to, given federal sentencing guidelines. He believed the best-case scenario was a sentence of 20 years.

Cross-examination by prosecutor James Lewis QC challenged whether U.S. prisons violate Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and degrading treatment. They also debated whether Assange would be placed in "administrative segregation" which is bureaucrat newspeak for 'solitary confinement'.

As prosecutor James Lewis QC was challenging the witness on his knowledge of mental health services and classification levels according to the Bureau of Prisons, a Fox News' audio clip suddenly began playing into the court room, including comments about WikiLeaks from President Trump. Judge Baraitser swiftly left the courtroom in order to avoid the prejudicial material. This led to a comical moment where people rushed to stand, the customary practice when the judge enters or leaves the court. We were unable to find the exact clip which was played, but we located a similar Fox News segment which includes them.

Due to technical issues that could not be resolved, court finally adjourned for the day.

Tuesday, Day Six: 'An unbroken line of courts declining to prosecute publishers' (Lewis)

• ERIC LEWIS offered an apology for unintentionally being the source of the auto-played media clip, and the Lewises continued cross-examination where they had left off.

He noted that the treatment of prisoners at the Administrative Maximum Facility supermax federal prison in Florence (ADX) – where Julian Assange may be held once in the United States – had improved in certain ways since Babar Ahmad and Cunningham v. Federal Bureau of Prisons, but in other ways became worse. During re-examination, he recognised the Nelson Mandela Rules and said there is a lot more data on the harmful effects of solitary confinement today than was available during those cases. Prosecutor James Lewis alleged the 175-year sentence was a mere "soundbite from the defence." His commentary on the matter did not include his own precise estimate of the possible length of a sentence for Assange.

The Lewises debated about the similarities and differences with the cases of Chelsea Manning, CIA whistleblower Jeffrey Sterling, and FBI whistleblower Terry Albury. Witness Lewis argued that those cases are not truly comparable, as those individuals were insider whistleblowers and not journalists or publishers.

On the question of whether the First Amendment precludes prosecution under the Espionage Act, the prosecution asserted that it did not, as it broadly includes "... having unauthorized possession of, access to, or control over any document... relating to the national defense."

Lewis cited an interview with former attorney general Eric Holder, who said in April 2019 that his Justice Department had only been open to prosecuting journalists "acting at the behest of a foreign power." To do otherwise, officials believed, would trigger the so-called "New York Times problem," i.e. criminalising the journalistic conduct of many other media organisations.

In agreement with Rogers that this was a politically motivated prosecution, witness Lewis cited an April 2017 article in the New York Times, where an official claimed it was "fueled by Attorney General Jeff Sessions," and there was "pressure" from the CIA "on the Justice Department to prosecute Mr. Assange" in retaliation for the Vault 7 release that exposed CIA cyber operations.

In terms of President Trump's willingness and / or ability to influence prosecution decisions, witness Lewis cited Attorney General William "Bill" Barr's June 2018 memo on unitary executive theory: "While the President has subordinates -- the Attorney General and DOJ lawyers -- who exercise prosecutorial discretion on his behalf, they are merely 'his hand'." He said that people have resigned due to "politicization" of the Justice Department by Barr. 'The evidence, witnesses, First Amendment, and Espionage Act haven't changed,' but the "politically extraneous influence" has changed between the Obama and Trump administrations, Lewis asserted.

• TOM DURKIN, a national criminal defence attorney who has been practicing law for 47 years, was the sixth expert witness. He agreed with the previous witness that it was very likely that Assange would spend the rest of his life in prison if tried in the United States.

He warned that Assange wouldn't have the right to appeal under the grand jury system, and during sentencing, the court can not only consider conduct that Assange has not been charged for, but even conduct he might be acquitted of, in their determination. They discussed the use of "trial tax," where defendants are punished with worse / longer sentences if they refuse to plead guilty; during cross-examination, prosecutor Lewis re-framed this phenomenon as a "plea discount." 

Durkin disagreed with Kromberg's statement that Assange would be permitted to use SCIF, a specialised facility for accessing classified material relevant to his case.

Durkin agreed with Feldstein, Rogers, and Lewis that the Obama administration had a "sound reason" not to prosecute Assange, though he clarifies that they could have of course re-opened the investigation within the statute of limitations. Regarding the reliability of media reports, such as the Washington Post, about Justice Department activities or viewpoints, Durkin explained that the department would make efforts to correct misstatements should any appear.

Wednesday, Day Seven: "Julian Assange could not get a remotely fair trial." (Ellsberg)

• JOHN GOETZ, an investigative journalist and senior editor for German public broadcaster NDR, was the first factual witness for the defence. He testified about his "recollections of the journalistic collaboration between WikiLeaks and Der Spiegel in the years 2010-2011, while I worked as a staff journalist at Der Spiegel in Berlin, Germany."

Goetz recounted that he was asked to work on material concerning Afghanistan because he had done stories on military operations and was familiar with the relevant jargon. This work would become the Afghan War Diaries release which was done in partnership with Der Spiegel.

He described the partnership among competing media organisations – including the New York Times and Guardian – as "unorthodox" but "fascinating." The use of encryption tools was also "new" to him, and not yet standard in the industry as it is today. However, it was impressed upon involved parties that they were necessary for "harm minimisation" purposes.

He underlined that Assange was "very concerned" about finding and redacting sensitive names from documents, which delayed the publication schedule. In his statement, Goetz wrote that "Wikileaks delayed the release of 15,000 documents."

While this was not mentioned in court due to an upheld objection from the prosecution, Goetz had signed a statement in May 2012 that he had been present at the dinner where Guardian journalists David Leigh and Luke Harding allege that Assange said informants deserved to die; Goetz had countered "Julian did not say that at the dinner."

Due to a "technical delay" on WikiLeaks' end, Der Spiegel, the Guardian, and possibly other media partners actually published the redacted material first. The decryption password for the unredacted document archive was published in the book "WikiLeaks: Inside Julian Assange's War on Secrecy" (2011), authored by Leigh and Harding, allowing anyone with a copy of the encrypted 'insurance file' to read them.

During cross-examination, Goetz asked whether prosecutor Lewis could provide an example of a sensitive name being published; Lewis did not offer one. Goetz said he was not aware of any instances of harm, and that this matter was settled in Manning's trial.

The prosecution attempted time and time again to attack the propriety of the publications as a whole, and portray Assange as being solely responsible for all WikiLeaks-related conduct. In that light, they alleged that Assange was irresponsible and only "responsible journalism" should be should be protected by law. This interpretation of press freedom is in direct contradiction with the First Amendment in the Bill of Rights. The rights of the free press are not contingent on responsibility or any other poorly defined appeal to propriety. 

• DANIEL ELLSBERG, Pentagon Papers whistleblower and Freedom of the Press Foundation (FPF) co-founder, was the second factual witness for the defence. Charged under the Nixon administration in 1973 for violating the Espionage Act, Ellsberg had not been allowed to provide his intention to serve the public interest in court, which ruled the question as “irrelevant." The case against him was eventually dismissed with prejudice due to criminal government misconduct during their investigation.

Ellsberg noted that the same dirty tricks used against him during the Pentagon Papers era appear to have been performed against Julian Assange. Noteworthy is that they were together and spied upon in the Ecuadorian Embassy, so this observation is more than a mere historical footnote. 

Ellsberg testified that he identified with Chelsea Manning's willingness to sacrifice her life and liberty to inform the public, as he had; he also felt "a great affinity" with Assange over a shared frustration that current and previous U.S. administrations exhibited a "great lack of transparency." He described the Afghan and Iraq wars as "Vietnam-istan," meaning that despite differences in time, terrain and society, they were all "unlawful" wars; their inception and pursuit was a "replay of the stalemate the USA had been in 40 years ago."

In line with the questions posed to the prior witness, the prosecution repeatedly attempted to instill Daniel Ellsberg and the Pentagon Papers with a strong sense of propriety, while denigrating WikiLeaks publications in contrast.

During cross-examination, prosecutor Lewis quoted from a 2010 article by U.S. constitutional lawyer Floyd Abrams titled "Why WikiLeaks Is Unlike the Pentagon Papers." Ellsberg responded that Abrams was "mistaken" and "does not understand my motives" very well because he represented the New York Times in the civil case, not in the criminal case. He described Abrams' distinction between him and Assange as "entirely misleading in terms of motive and effect" for a number of reasons, first and foremost because the "high-level" Pentagon Papers were actually classified more strictly than the field reports WikiLeaks received from Manning. Furthermore, as Goetz and Sloboda had previously testified, Assange withheld 15,000 documents, just as Ellsberg had withheld three or four of the forty-seven volumes of the Pentagon Papers.

Ellsberg recounted that prior to leaking, "I spent over a year and a half attempting to get hearings in Congress without success." In a similar vein, he argued that the U.S. State and Defense departments didn't respond to WikiLeaks' attempts to notify them because they would rather "preserve the possibility of charging Mr Assange" than prevent the possibility of harm.

Lewis suggested that Ellsberg withheld documents because he didn't want to get in the way of diplomacy; Ellsberg clarified that his goal was to get in the way of the war, and chose to withhold them rather than redact because he was "afraid" the government would somehow use any redactions as an excuse for affecting negotiations. He did not think that revealing the name of a clandestine CIA officer would have put them in harms' way, but noted that such a defence would not matter today under the  Intelligence Identities Protection Act, which criminalises revealing names regardless of harm.

Lewis read through a significant portion of Kromberg's statements about individuals who had supposedly "suffered great harm" due to WikiLeaks' releases. Assange spoke up that he was being defamed: "Through rhetorical sleight of hand the prosecution is suggesting that I put lives at risk. It needs to be corrected immediately. The harm to me will be irreparable." Judge Baraitser gave him another warning. Ellsberg asked if the prosecution could provide any concrete examples of harm. Lewis insisted that Ellsberg was not the person to be asking questions, but asserted "common sense tells us," and began to look through Kromberg's statements again. Judge Baraitser said, "Mr. Lewis is going to find the evidence." Lewis read from Kromberg; Fitzgerald QC encouraged him to finish the paragraph (page 21), which included: "... although the United States cannot prove at this point that their disappearance was the result of being outed by WikiLeaks." In the end, Lewis provided no examples.

Lewis quoted from Leigh and Harding's book (page 168), which claims Assange said Ellsberg had been given "an encrypted back-up copy of the database which he was to give the New York Times in a piece of political theatre." He confirmed that he was given a copy, but stated that he had been difficult to access it as it was encrypted, that he never published or released anything from this dataset, and it had been subsequently destroyed with hammers. This final question from the prosecution was not like the others. Speculation by sources near to the defense indicate that this appears to be an attempt to have Daniel Ellsberg admit under oath to committing a crime as they radically redefine it: the mere receipt of classified information alone is considered as a serious crime.

During re-examination by the defense, Ellsberg said that he was now being "used as a foil" by state and non-state actors against Assange, as the 'good whistleblower', despite being subjected to similar defamatory attacks in his day. "I was told 'blood would be on my hands' [too]. They were wrong."

At the end of Ellsberg's testimony, the in-court camera turned to include Assange at the back. Ellsberg smiled and waved.

Thursday, Day Eight: "[The Espionage Act is] one of the most contentious laws in the United States." (Shenkman)

• JOHN SLOBODA, co-founder of Iraq Body Count (IBC), was questioned by defence barrister Florence Iveson about the Iraq War Logs release, which his organisation had helped to analyse.

He said the logs were "the largest single contribution to knowledge" about the war, and no other public domain source – including the U.S. government – had come forward since to corroborate them. He noted that the logs revealed 15,000 previously unrecorded civilian casualties. The prosecution noticeably avoided using the full name "Iraq Body Count" and preferred to refer to them as "IBC."

Sloboda said that the logs were published in a "wholly appropriate, highly redacted form." During cross-examination by Joel Smith, Sloboda continued that WikiLeaks had taken "complex and innovative steps" to develop "responsible" systems for redaction. Analysts and media partners still had to deal with a "steep learning curve." Smith asserted that "responsible journalism would be not naming cooperating sources," and quoted from the statement of U.S. prosecutor Kellen Dwyer (page 3 to 45) that "ASSANGE created a grave and imminent risk that the innocent people he named would suffer serious physical harm and/or arbitrary detention." When asked whether Assange took a "cavalier attitude" toward such risks, Sloboda simply countered, "No."

After Sloboda's testimony concluded, Judge Baraitser expressed concern that they were moving too slowly through the witness list, and asked both legal teams to decide which written testimony could be read into the record as it was.

• CAREY SHENKMAN, a human rights lawyer and legal researcher, testified as an expert on "the history of the Espionage Act and its implications for freedom of the press." He and his co-author are the only two people "who have undertaken research of this kind."

Shenkman described the Espionage Act as "extraordinarily broad" and "one of the most contentious laws in the United States." He claimed that there was "incredible confusion" surrounding the scope of the law, given that it could criminalise the dissemination or receipt of any national defense information, whether it was classified or not. When asked about robust safeguards, he replied that there were none and the Act could potentially be applied to "ordinary citizens" re-tweeting such material on social media.

He noted that up to this point, despite at least eleven past investigation attempts, there has been no successful indictment of a publisher. Prior Justice Departments showed "great ambivalence," but there has been an "escalation" in the prosecution of government sources. The press have been "very nervous" since the Obama administration.

During cross-examination by Clair Dobbin, Shenkman was questioned about his legal practice since 2013, specifically whether he had represented Assange while working under the late Michael Ratner. Despite Shenkman repeatedly reminding the court that his testimony was not legal analysis, but rather to share his peer-reviewed opinion on the political nature of the Espionage Act, Dobbin continued "exploring" his views on the Assange case according to articles in The Nation and Guardian.

Dobbin provided various legal questions and asked whether he agreed or disagreed with them. Shenkman responded that many of the issues, such as those involving "hacking government databases," were "highly contentious" among legal scholars in the U.S., and that there were often disagreements in judicial opinion. 'If laws were clear-cut, lawyers wouldn't have work.'

Realising they were running low on time, Dobbin complained that Shenkman had not been answering questions briefly enough. Judge Baraitser, "choosing my words carefully," countered that the witness had been cooperative and criticised Dobbin for developing her line of questioning too slowly. For those not fluent in the subtleties of British English, the judge was expressing something extremely negative to the prosecutor about the prosecutor. Court then adjourned for the day, scheduling Shenkman to finish testifying the next day.

Friday, Day Nine: "No one has ever been held accountable for what happened to me" (El-Masri)

• NICKY HAGER, an investigative journalist from New Zealand, testified as "a user of the data" from various important releases published by WikiLeaks. He himself had redacted "a few hundred" documents related to New Zealand and Australia.

Like Sloboda and other witnesses before him, Hager said that the material about the Iraq and Afghanistan wars had a "profound effect on public opinion" and insight into "levels of war we weren't be told about." As he wrote about in "Other People's Wars" (2011), aid, and reconstruction campaigns were being used for psychological operations (PSYOPs).

He described their redaction process as a "deliberately slowed down process," observing Assange and colleagues spending "hour after hour in total silence" from concentration, "very serious about what they were doing."

He claimed to have felt very much that Assange was on the same "wavelength" as himself, in terms of source protection and following principles laid out in the preamble to the Charter of the United Nations. "I saw nothing of the difficult, awful person he is often portrayed as through the media."

During cross-examination, when the prosecution asked if he was aware that Assange was not being charged for publishing 'Collateral Murder', Hager countered that the indictment did include charges for the Rules of Engagement, which was relevant to the conduct observed in the video. The bundle of releases "affected the world as a whole, not as divisible parts." Contrary to the U.S. government's claims, he did not believe that these releases presented a "dire risk" to troops. Defense barrister Mark Summers has previously argued that "Manning gave WikiLeaks the U.S. Rules of Engagement in Iraq to show that the Collateral Murder video had violated those rules, not because Assange had asked for it."

Like Feldstein and Timm before him, Hager disagreed with the notion that journalists just passively receive documents, and that the prosecution had a "fundamental misunderstanding of the work that someone like me does." Echoing the analysis of Ellsberg, he was "puzzled" by their argument that publication wasn't being criminalized, as all publication necessitates receiving the information first.

Regarding the allegations by Leigh and Harding, Hager described their book as a "really potentially unreliable source" due to their personal "bitterness" about Assange. Though they did use the passphrase, ACollectionOfHistorySince_1966_ToThe_PresentDay#, as a chapter title, a noteworthy exception to their unreliability.

• JENNIFER ROBINSON, an Australian human rights lawyer and barrister with Doughty Street Chambers, had her statement read into the record by Iveson.

She testified about a meeting she had witnessed in April 2017 between her client Julian Assange and then Republican Congressman Dana Rohrabacher, who purported to be "acting on behalf of the president." Rohrabacher offered Assange a pardon or other similar assurance in exchange for the source of the Democratic emails released in 2016.

Assange maintains that he did not provide them with any information. The prosecution team did not dispute this.

• KHALID EL-MASRI, a German citizen, was scheduled to testify that his kidnapping, cross-border rendition, and torture by the CIA would have been "impossible to establish" without "revelations in US diplomatic cables published by WikiLeaks."

One of the cited cables, sent from the U.S. Embassy in Berlin, stated the U.S. had told German authorities that "issuance of international arrest warrants [against those responsible] would have a negative impact on our bilateral relationship." An earlier cable, sent from the capital of Macedonia in 2006, noted that the case "generated intense press commentary here, most of it negative, over the past several months." In June 2016, the American Civil Liberties Union (ACLU) wrote that the inspector general's investigation into his treatment "makes clear that El-Masri’s unlawful rendition and detention were rife with neglect, abuse, and incompetence, reaching to the highest levels of the CIA."

While an interpreter was provided to help El-Masri testify, the court was unable to establish a remote video connection with him. The prosecution attempted to dismiss him altogether, but Assange spoke up that he would "not censor a torture victim's statement to this court." Summers expressed "great regret that we can't use easier platforms," and instead read a "gist" of El-Masri's statement into the record.

• CAREY SHENKMAN joined again for further cross- and re-examination.

In going through case law related to the Espionage Act, Dobbin asked whether it had been established that publishers could be prosecuted. Shenkman answered that while the letter of the Act allowed that, constitutional law must be considered and seems to "take serious issue" with this interpretation.

His research, which Dobbin alleged was "incomplete" and "not objective," highlighted a history of selective application by the U.S. government – to the point where the Act had a "chilling effect" and became a civil rights issue when used against black publishers. Hence he believed that the limitations of the Act's application were more political than legal. "If these questions were simple, I wouldn't have written 100,000 words on the subject," and no "serious scholars" would give "binary answers" to her questions.

Dobbin also questioned his argument that the Computer Fraud and Abuse Act (CFAA) "suffers from similar breadth that enables the Espionage Act’s enormous malleability." She believed that the opinion of law professor Orin Kerr, who is cited in Shenkman's statement, made it "clear beyond doubt" that Assange's conduct constituted hacking. Shenkman countered that, on the day of Assange's arrest, Kerr said the indictment took a "relatively aggressive (and somewhat controversial) view of the Computer Fraud and Abuse Act -- that accessing files in violation of an order on classified materials is an unauthorized access."

During re-examination, Summers took him through the relevant case law again. He asked if any prior investigations had produced an indictment against the press, let alone against a foreign publisher. Shenkman responded that it had been "completely unforeseeable" that a foreign publisher would be indicted under the Espionage Act.

• DEAN YATES, former bureau chief of the Reuters' office in Baghdad, testified about his personal experience relating to the Collateral Murder video.

His employees, Namir Noor-Eldeen and Saeed Chmagh, were killed. Two children were also injured and lost their father. He reflected on the moment he was informed of the attack, and subsequent attempts to learn the truth of it.

A few months ago, Yates had publicly described the U.S. military's narrative as: "All lies." He notes in his statement that a U.S. lieutenant-colonel had described the attack to him as "combat operations against a hostile force," yet Yates noticed that Namir's cameras showed "no frames of insurgent gunmen or clashes with US forces." He explained in detail that his attempts to learn about the Rules of Engagement and access more footage through a Freedom of Information (FOI) request were "denied."

When he first saw the full video in April 2010, he "immediately realised that the US Military had lied to us." He quotes Assange as saying "If that's based on the Rules of Engagement then the Rules of Engagement are wrong."

"Had it not been for Chelsea Manning and Julian Assange the truth of what happened to Namir and Saeed, the truth of what happened on that street in Baghdad on July 12, 2007, would not have been brought to the world. What Assange did was 100% an act of truth-telling, exposing to the world what the war in Iraq in fact was and how the US military behaved and lied," he wrote.

Like El-Masri, Yates did not testify in person or via video-link; the defence read his statement into the record. He later tweeted that he felt "honored" to have his statement included, and that the prosecution "didn't require me to present as a witness to be asked questions."

The defence, prosecution, and Judge Baraitser discussed whether transcripts of the proceedings should be released publicly, and how they would decide on which other witness statements could be read into the record; they agreed to consider these matters over the weekend.

Join us next week for further coverage of Assange's extradition trial.