News Media Who Ignore The Assange Trial Are Admitting They Don’t Care About Journalism
by Caitlin Johnstone


The Sydney Morning Herald just published an article titled "Julian Assange interrupts extradition hearing again" about the WikiLeaks founder's correct interjection that he never put anyone's lives in danger with the publication of the Manning leaks a decade ago.

It's actually a rather shocking smear piece for the SMH, who has been one of the better Australian publications at giving Assange a fair hearing over the years. The article's author Latika Bourke spends an inordinate amount of time waxing on about Assange's naughty "outburst" and how he was reprimanded for it by the judge, telling readers that the prosecution "separates Assange from the press which also published information revealed by WikiLeaks but without naming journalists, human rights advocates and dissidents who were informing on their governments and repressive regimes", and bringing up Osama bin Laden's possession of WikiLeaks documents apropos of precisely nothing.

At no time does Bourke (who has been a regular smearer of Assange) bother to provide the reader with any of the readily available information showing that Assange never caused anyone harm and was not responsible for the unredacted documents being made public. She weaves a narrative about Assange being badly behaved in the courtroom, insinuates that the accusations he objected to could be true to the furthest extent possible without actually making a claim that would need to be retracted, and gets out.

Your headline writers misspelled "Julian Assange being prosecuted for journalism in historic case that threatens press freedoms worldwide", @smh.https://t.co/xQ1O0z8BUh

— Caitlin Johnstone  [⏳]  (@caitoz) September 17, 2020

And unfortunately this drivel is more or less typical of the coverage Assange's historic, world-shaping extradition trial has been receiving from the mass media since it resumed this month. To the extent that they report on the trial at all, mainstream news outlets have mostly limited their coverage to trivialities like trouble with courtroom audio equipment or postponement due to a coronavirus scare. No mainstream outlet has been covering this immensely important trial in-depth to anywhere near the extent that former UK ambassador Craig Murray has been doing every night, or explaining to their audience the significance of a precedent which will allow journalists all over the world to be extradited and jailed for exposing embarrassing truths about the US government.

This dereliction of journalistic responsibility was damning enough back when the prosecution was trying to argue that Assange doesn't have First Amendment protections because he was engaged in espionage and not journalistic behavior. But now that the prosecution has pivoted to arguing that it doesn't matter that Assange is a journalist because the US government is allowed to imprison people for journalism, this dereliction of duty has become far more pronounced.

Murray writes the following in his latest update:

The prosecution’s line represented a radical departure from their earlier approach which was to claim that Julian Assange is not a journalist and to try and distinguish between his behaviour and that of newspapers. In the first three days of evidence, legal experts had stated that this gloss on the prosecution did not stand up to investigation of the actual charges in the indictment. Experts in journalism also testified that Assange’s relationship with Manning was not materially different from cultivation and encouragement by other journalists of official sources to leak.

 

By general consent, those first evidence days had gone badly for the prosecution. There was then a timeout for (ahem) suspected Covid among the prosecution team. The approach has now changed and on Tuesday a radically more aggressive approach was adopted by the prosecution asserting the right to prosecute all journalists and all media who publish classified information under the Espionage Act (1917).

 

The purpose of the earlier approach was plainly to reduce media support for Assange by differentiating him from other journalists. It had become obvious such an approach ran a real risk of failure, if it could be proved that Assange is a journalist, which line was going well for the defence. So now we have “any journalist can be prosecuted for publishing classified information” as the US government line. I strongly suspect that they have decided they do not have to mitigate against media reaction, as the media is paying no attention to this hearing anyway.

Corporate journalists have barely bothered to cover Assange's trial. But while they doze, the US has changed its argument, as ex-ambassador Craig Murray reports. Now the US is threatening to lock up other journalists for espionage if they expose its crimes https://t.co/4dpYUQ0EAZ

— Jonathan Cook (@Jonathan_K_Cook) September 16, 2020

Murray's subsequent breakdown of the prosecution's arguments makes it clear that he was not over-selling this change in strategy. His notes on attorney for the prosecution James Lewis' arguments contain lines as blatant as "There are Supreme Court judgements that make it clear that at times the government’s interest in national security must override the First Amendment" and "serial, continuing disclosure of secrets which harm the national interest cannot be justified. It therefore follows that journalists can be prosecuted" in arguing against witness testimony that Assange's publishing behavior should be protected by the First Amendment.

"The United States Supreme Court has never held that a journalist cannot be prosecuted for publishing national defence information," Murray reports Lewis argued.

So that's the precedent the prosecution is setting now. No longer "We can extradite and imprison Assange because he isn't a journalist", but "We can extradite and imprison Assange because we're allowed to extradite and imprison journalists."

The argument that Assange isn't a journalist has always been transparently false, whether made in the courtroom or in the court of public opinion. Publishing important information so that the public can understand what's going on in their world is exactly the thing that journalism is. All WikiLeaks publications have included extensive written analyses of their contents, and its staff have received many esteemed awards for journalism.

WikiLeaks’ publisher Julian Assange has been awarded the 2019 GUE/NGL Award for Journalists, Whistleblowers & Defenders of the Right to Information.
The award, sponsored by European parliamentarians, was established in honour of assassinated Maltese journalist, Daphne Galizia. pic.twitter.com/5DaMWcMFM9

— WikiLeaks (@wikileaks) April 16, 2019
But the fact that the prosecution is no longer even attempting to argue against the journalistic nature of the actions they are attempting to criminalize means they have ceased trying to pretend that they are not waging a war against worldwide press freedoms. Which means that all journalists and news media outlets have lost their last excuse for not condemning Assange's persecution with great force and urgency.

Now that it is out in the open that the US government plans to prosecute any journalist anywhere in the world who it deems to have committed "disclosure of secrets which harm the national interest" (which in Assange's case means exposing US war crimes), anyone on earth who actually plans on doing real journalism which holds real power to account is at risk. If someone isn't using whatever platform they can to denounce Assange's persecution, they are showing the world that they have no interest in ever doing real journalism which holds real power to account.

News reporters and news outlets are showing us what they are right at this moment. If they are not speaking out for Assange's freedom right now they are telling you that his persecution poses no threat to them. They are telling you that they never plan on doing anything that might hold power to account with the light of truth. They are telling you that they will side with power every time. They are telling you they are propagandists.

The prosecution's new line of argumentation should have drawn massive headlines from all the major news outlets who've been bloviating about the dangers posed by Trump's war on the press with flamboyant preening and self-aggrandizement. Instead they are silent, because they do not care.
To quote Maya Angelou, when someone shows you who they are, believe them.
_________________________
Feature image by Garry Knight.

Thanks for reading!

The best way to get around the internet censors and make sure you see the stuff I publish is to subscribe to the mailing list for at my website or on Substack, which will get you an email notification for everything I publish. My work is entirely reader-supported, so if you enjoyed this piece please consider sharing it around, liking me on Facebook, following my antics on Twitter, throwing some money into my tip jar on Patreon or Paypal, purchasing some of my sweet merchandise, buying my books Rogue Nation: Psychonautical Adventures With Caitlin Johnstone and Woke: A Field Guide for Utopia Preppers. For more info on who I am, where I stand, and what I’m trying to do with this platform, click here. Everyone, racist platforms excluded, has my permission to republish, use or translate any part of this work (or anything else I’ve written) in any way they like free of charge.

Your Man in the Public Gallery: The Assange Hearing Day 7

September 9, 2020
By Craig Murray

In the Assange hearing day 7, witness Clive Stafford Smith stresses the great legal and public importance of Wikileaks’ publications, while witness Professor Mark Feldstein highlighted how the US Government had never before prosecuted a journalist or publisher for leaked information.

https://thefreedomarticles.com/assange-hearing-day-7/

Assange Hearing Day 7: 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 UN Convention Against Torture.PROMOTED CONTENT
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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.PROMOTED CONTENT
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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.

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.FacebookTwitterEmailShare


Capitalism, Assange, And More Notes From The Edge Of The Narrative Matrix
by Caitlin Johnstone

Capitalism will keep getting more and more unjust and exploitative until people force its end. You can try making it about elite globalist conspiracies and corrupt governments all you want, but ultimately it's really just capitalism following its natural and inevitable course.

This is why I often avoid making our world's problems about specific individuals; our world's problems are not about specific individuals. You could get rid of all the individuals currently screwing us and if you kept the same systems they'd be replaced almost instantly.

People whose ideology prohibits them from admitting capitalism is responsible for humanity's existential crises need to make up other reasons for those crises. It's the globalists. It's the Jews. It's corrupt politicians. No, it's just capitalism doing what capitalism has to do. There are no specific groups or individuals you could eliminate from the equation to make capitalism move in a healthy way. As long as depravity is profitable and human behavior is driven by profit, humanity will always necessarily follow a depraved trajectory.

This doesn't mean criticisms of individuals are invalid, they're just not striking the root. Get rid of all the elites poisoning the world today and if you leave the same systems in place we'll find ourselves getting screwed by the Whateverski family and some guy named O'Donnell.

So many of the popular theories in today's conspiracy circles ultimately boil down to "Oh no, the elites are ruining the capitalism!"

No they're not. They are perfectly embodying it.
~
The Assange case is this generation's Nelson Mandela moment. Get on the right side of it or be forever judged by history.
~
Every news outlet and every journalist who is not speaking out for Assange with urgency and force is admitting they have no intention of ever challenging power in any meaningful way; they're saying this trial poses no threat to them. They are admitting they are propagandists.
~
It's so interesting how all these pedantic little transnational legal quibbles about Assange and WikiLeaks can be stitched together into a prosecution whose end result just so happens to look exactly the same as powerful governments imprisoning a journalist for exposing US war crimes.
~
The Assange trial looks different when you realize it's really just a collaborative performance by the US and UK governments to explain why it's good to jail journalists for telling the truth.
~
If you can't see that the US-centralized empire is the most destructive and oppressive force on this earth, then you won't see any part of the rest of the world clearly either.
~
Prisoner: Let me out of this cell! I've done nothing wrong!
Warden: Okay, here's the key. You're free.
Prisoner: This key is three feet long and made out of foam!
Warden: It'll work, just keep trying.
Prisoner: This is impossible! What the hell is this?
Warden: We call it voting.
~
The outcome of the US election in November will have no meaningful impact whatsoever on humanity's rapidly accelerating trajectory toward extinction, but it'll be great for news media ratings.
~

QAnon is all the dumbest things about Republicans crossed with all the dumbest things about 4chan crossed with all the dumbest things about boomers crossed with the dumbest iteration of conspiracy analysis you could possibly imagine.
~
Believing this new cold war is safe because we survived the last one is as sane as believing Russian roulette is safe because the guy passing you the gun didn't get his head blown off.
~
The position that detente should be sought with China and Russia is not a position that says their governments are wonderful, it's the position that the neoconservative ideology of US unipolar domination at all cost is not worth gambling the life of every terrestrial organism on.
~
The Iraq invasion killed hundreds of times more people than 9/11 and was vastly more evil than 9/11. If they lied to us about Iraq, they'll lie to us about anything.
~
In a remotely sane world, war would be the last thing anyone ever wants and would be turned to only as a very last resort. In a world that's dominated by an empire which seeks total planetary control, wars are planned as an ends in themselves and excuses are invented to get into them.
~
The impulse to control things is why egos exist. The impulse to control things is also why empires exist.
~
Psychology is the tool propagandists use to manipulate us into consenting to the status quo. The more you understand about the workings of your own mind, the easier a time you'll have spotting all manipulations. See how you fool yourself and you'll see how they fool everyone.
_________________________
Thanks for reading! The best way to get around the internet censors and make sure you see the stuff I publish is to subscribe to the mailing list for at my website or on Substack, which will get you an email notification for everything I publish. My work is entirely reader-supported, so if you enjoyed this piece please consider sharing it around, liking me on Facebook, following my antics on Twitter, throwing some money into my tip jar on Patreon or Paypal, purchasing some of my sweet merchandise, buying my books Rogue Nation: Psychonautical Adventures With Caitlin Johnstone and Woke: A Field Guide for Utopia Preppers. For more info on who I am, where I stand, and what I’m trying to do with this platform, click here. Everyone, racist platforms excluded, has my permission to republish, use or translate any part of this work (or anything else I’ve written) in any way they like free of charge.
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According to the indictment, Assangewas accused of conspiracy to commit computer intrusion in order to help Chelsea Manning gain access to privileged information which he intended to publish on Wikileaks. ...Assange himself does not consent toextradition to the US, in an ongoing move to prevent this from happening.
en.m.wikipedia.org › wiki › Indictm...

Indictment and arrest of Julian Assange - WikipediaJulian Assange was allegedly investigated by the Eastern District of Virginia grand jury for computer-related crimes committed in the U.S. in 2012. His request for asylum was granted and he remained a resident in the Ecuadorian Embassy in London since 2012. In 2019, an indictment from 2017 was made public following the termination of his asylum status and the subsequent arrest by the Metropolitan Police of UK in London.[1]According to the indictment, Assange was accused of conspiracy to commit computer intrusion in order to help Chelsea Manninggain access to privileged information which he intended to publish on Wikileaks. This is a less serious charge in comparison to those levelled against Manning, and carries a maximum sentence of five years with a possibility of parole
Julian Assange extradition hearing paused over fears lawyer exposed to coronavirus

WikiLeaks founder is battling being sent to US on 18 charges over leaked cablesLizzie Dearden
Home Affairs Correspondent
Julian Assange’s extradition hearing has been paused over fears that a lawyer may have been exposed to coronavirus.https://www.google.com/amp/s/www.independent.co.uk/news/uk/crime/julian-assange-extradition-hearing-lawyer-coronavirus-court-update-b421437.html%3famp

The WikiLeaks founder is battling against attempts to send him to the US for trial for allegedly conspiring to hack government computers and violating an espionage law over the release of confidential cables in 2010 and 2011

Judge Vanessa Baraitser adjourned the case until Monday after being told one of the lawyers involved had been exposed to the virus.
She told London’s Old Bailey that the lawyer was being tested on Thursday, with the result due on Friday.
At the moment we would respectfully submit we have to go ahead on the assumption that she has Covid,” Edward Fitzgerald, Mr Assange's lawyer said.

“If that is the correct assumption ... we shouldn’t really be here. Covid would be here in the courtroom and it's not possible to tell how far it's extended.”
Asked by Mr Fitzgerald QC if he believed the charges against  Mr Assange are motivated by “criminal justice concerns” or political considerations, Prof Rogers said: “I have to say it appears to be the latter. This does appear to be a political trial”.

The defence witness said the fact president Barack Obama's administration did not prosecute Assange was also a factor in the Trump administration's decision making.

Trevor Timm, co-founder and executive director of the San Francisco-based Freedom of the Press Foundation, said his organisation had contributed around $100,000 to Mr Assange’s legal costs.

He described the case as “a dire threat to press freedoms in the US” and agreed that it was the “thin end of the wedge to prosecute journalists”.


Former British diplomar Craig Murray was in the public gallery at Old Bailey for Julian Assange's hearing and here is his report on Monday's bizarre events
Volume 26, Number 261–Thursday, September 17, 2020
BRITAIN, COMMENTARY, LEGAL, WIKILEAKS

ASSANGE EXTRADITION: Craig Murray: Your Man in the Public Gallery: Assange Hearing—Day 5 September 15, 2020



Former British diplomat Craig Murray was in the public gallery at Old Bailey for Julian Assange’s hearing and here is his report on Monday’s bizarre events.


By Craig Murray
CraigMurray.org.uk

Things became not merely dramatic in the Assange courtroom today, but spiteful and nasty. There were two real issues, the evidence and the procedure.

On the evidence, there were stark details of the dreadful regime Julian Assange will face in U.S. jails if extradited.

On the procedure, we saw behavior from the prosecution Queen’s Counsel that went well beyond normal cross examination and was a real attempt to denigrate and even humiliate the witness. I hope to prove that to you by a straightforward exposition of what happened today in court, after which I shall add further comment.

Today’s witness was Eric Lewis. A practicing U.S. attorney for 35 years, Lewis has a doctorate in law from Yale and a masters’ in criminology from Cambridge. He is former professor in law at Georgetown University, an elected member of both the American Law Institute and the Council on Foreign Relations and a fellow of the American Bar Foundation. He is chairman of Reprieve, an international human rights group focused on the death penalty and other human rights abuses. He has represented high profile clients in national security and terrorism cases, including the journalist Seymour Hersh and Guantanamo Bay internees.

Lewis had submitted five statements to the court, between October 2019 and August 2020, addressing the ever changing indictments and charges brought by the prosecution. He was initially led through the permitted brief half hour summary of his statements by defence QC Edward Fitzgerald. (I am told I am not currently allowed to publish the defence statements or links to them. I shall try to clarify this tomorrow).

The New York Times Problem

The New York Times Building, Manhattan. (Defears, CC BY-SA 4.0, via Wikimedia Commons)

Eric Lewis testified that no publisher had ever been successfully prosecuted for publishing national security information in the USA.

Following the WikiLeaks publications — including the diplomatic cables and the Iraq and Afghanistan war logs — Assange had not been prosecuted because the First Amendment was considered insuperable and because of The New York Times problem — there was no way just to prosecute Assange without prosecuting The Times for publishing the same material.

The New York Times had successfully pled the First Amendment for its publication of the Pentagon Papers, which had been upheld in a landmark Supreme Court judgement.

Mark Feldstein. 

Trevor Timm.

Paul Rogers.

Lewis here gave evidence that mirrored that already reported of Professor Mark Feldstein, Trevor Timm and Professor Paul Rogers, so I shall not repeat all of it.

He said that credible sources had stated the Obama administration had decided not to prosecute Assange, notably Matthew Miller, a highly respected Justice Department figure who had been close to Attorney General Eric Holder and would have been unlikely to brief the media without Holder’s knowledge and approval.

Eric Lewis than gave testimony on the change of policy towards prosecuting Assange from the Trump administration. Again this mostly mirrored the earlier witnesses.

He added detail of U.S. Secretary of State Mike Pompeo stating the the free speech argument for WikiLeaks was “a perversion of what our great country stands for,” and claiming that the First Amendment did not apply to foreigners.

Mike Pompeo as CIA director calling WikiLeaks a nonstate hostile actor. (Screenshot)

Attorney General Jeff Sessions had accordingly stated that it was “a priority for the Justice Department” to arrest Julian Assange. He had pressured prosecutors in the Eastern District of Virginia to bring a case. In December 2017 an arrest warrant had been issued, with the indictment to be filled in later. The first indictment of a single count had been launched in March 2018, its timing possibly dictated by a limitation deadline.

In May 2019 a new superseding indictment increased the counts from one to 18, of which 17 related to espionage. This tougher stance followed the appointment of William Barr as attorney general just four months previously.

The plain intention of the first superseding indictment was to get around The New York Times problem by trying to differentiate Assange’s actions with Manning from those of other journalists.

It showed that the Justice Department was very serious and very aggressive in acting on the statements of Trump administration officials. Barr was plainly acting at the behest of Trump. This represented a clear abuse of the criminal enforcement power of the state.

The prosecution of a publisher in this way was unprecedented. Yet the facts were the same in 2018 as they had been in 2012 and 2013; there was no new evidence behind the decision to prosecute.

Crucially, the affidavits of U.S. Assistant Attorney Gordon Kromberg present no legal basis for the taking of a different decision to that of 2013. There is no explanation of why the dossier was lying around with no action for five or six years.

The Trump administration had in fact taken a different political decision through the presidential spokesperson Sarah Sanders who had boasted that only this administration had acted against Assange and “taken this process seriously.”

Former White House Press Secretary Sarah Huckabee Sanders speaking with reporters,May 31, 2019, outside the West Wing. (White House, Tia Dufour)

Question of Probable Sentencing

Edward Fitzgerald QC then turned to the question of probable sentencing and led Lewis through his evidence on this point.

Lewis confirmed that if Julian Assange were convicted he could very probably spend the rest of his life in prison. The charges had not been pleaded as one count, which it had been open to the prosecution to do. The judge would have discretion to sentence the counts either concurrently or consecutively. Under current sentencing guidelines, Assange’s sentence if convicted could range from “best case” 20 years to a maximum of 175 years. It was disingenuous of Gordon Kromberg to suggest a minimal sentence, given that Chelsea Manning had been sentenced to 35 years and the prosecution had requested 60.

It had been a government choice to charge the alleged offences as espionage. The history of espionage convictions in the USA had generally resulted in whole life sentences; 20-to-30 years had been lighter sentences for espionage. The multiple charges approach of the indictment showed a government intention to obtain a very lengthy sentence. Of course the final decision would lay with the judge, but it would be decades.

Detention Conditions 

Edward Fitzgerald QC. (YouTube)

Assange’s attorney Edward Fitzgerald QC then led on to the question of detention conditions. On the question of remand, Gordon Kromberg, the U.S. assistant attorney,  had agreed that Julian Assange would be placed in the Alexandria City Jail, and there was a “risk” that he would be held there under Special Administrative Measures, or SAMS.

In fact this was a near certainty. Assange faced serious charges related to national security, and had seen millions of items of classified information which the authorities would be concerned he might pass on to other prisoners. He would be subject to Special Administrative Measures both pre- and post-conviction.

After conviction Julian Assange would be held in the supermax prison ADX Florence, Colorado. There were at least four national-security prisoners currently there in the H block.

Under SAMS Assange would be kept in a small cell for 22 or 23 hours a day and not allowed to meet any other prisoners. He would be allowed out once a day for brief exercise or recreation excluded from other prisoners, but shackled.

Fitzgerald then led Lewis to the 2017 decision by the International Criminal Court to open an investigation into war crimes in Afghanistan, in which the evidence provided by the WikiLeaks release of U.S. war logs and diplomatic cables provided essential evidence.

This had been denounced by President Donald Trump, National Security Advisor John Bolton and Pompeo. The ICC prosecutor’s U.S. visa had been canceled to hinder the investigation. An Executive Order had been issued imposing financial sanctions and blocking the banking access of any non U.S. national who assisted the ICC investigation into crimes alleged against any U.S. citizen. This would affect Julian Assange.

At this point, the half-hour guillotine imposed by Judge Vanessa Baraitser on defence evidence came down. Fitzgerald pointed out they had not even reached the second superseding indictment yet, but Baraitser said that if the prosecution addressed that in cross examination, then the defence could question on it in re-examination.

Cross Examination 

James Lewis QC then rose to cross examine Eric Lewis. Yet again, he adopted an extremely aggressive tone. This is perhaps best conveyed as a dialogue.

NB this is not a precise transcript. It would be illegal for me to publish a transcript (of a “public” court hearing; fascinating but true). This is condensed and slightly paraphrased. It is I believe a fair and balanced representation of what happened, but not a verbatim record.

Eric Lewis was appearing by videolink and it should be borne in mind that he was doing so at 5 a.m. his time.

James Lewis QC Are you retained as a lawyer by Mr. Assange in any way?
Eric Lewis No.
James Lewis QC Are you being paid for your evidence?
Eric Lewis Yes, as an expert witness. At a legal aid rate.
James Lewis QC Are you being paid for your appearance in this court?
Eric Lewis We haven’t specifically discussed that. I assume so.
James Lewis QC How much are you being paid?
Eric Lewis £100 per hour, approximately.
James Lewis QC How much have you charged in total?
Eric Lewis I don’t know, haven’t worked it out yet.
James Lewis QC Are you aware of the rules governing expert witnesses?
Eric Lewis Yes, I am. I must state my qualifications and my duty is to the court; I have to give an objective and unbiased view.
James Lewis QC You are also supposed to set out alternative views. Where have you set out the arguments in Mr. Kromberg’s five affidavits?
Eric Lewis The court has Mr. Kromberg’s affidavits. I address his arguments directly in my statements. Are you saying that I should have repeated his affidavits and all the other evidence in my statements? My statements would have been thousands of pages long.
James Lewis QC You are supposed to be unbiased. But you had previously given views that Mr. Assange should not be extradited.
Eric Lewis Yes, I published an article to that effect.
James Lewis QC You also gave an interview to an Australian radio station.
Eric Lewis Yes, but both of those were before I was retained as an expert witness in this case.
James Lewis QC Does this not create a conflict of interest?
Eric Lewis No, I can do an objective analysis setting aside any prejudice. Lawyers are used to such situations.
James Lewis QC Why had you not declared these media appearances as an interest?
Eric Lewis I did not think perfectly open actions and information needed to be declared.
James Lewis QC It would be much better if we were not forced to dig out this information. You give opinions on law. You also give opinions on penal conditions. Are you an expert witness?
Eric Lewis I am very familiar with prison conditions. I visit prisons. I studied criminology at Cambridge. I keep up to date with penology. I have taught aspects of it at university.
James Lewis QC Are you a qualified penologist?
Eric Lewis I think I have explained my qualification.
James Lewis QC Can you point us to peer reviewed articles which you have published on prison conditions?
Eric Lewis No.
James Lewis QC Have you visited ADX Colorado?

ADX Florence in Colorado. (Federal Bureau of Prisons, Wikimedia Commons)

Eric Lewis No, but I have had a professional relationship with a client in there.
James Lewis QC Have you represented anyone in Alexandria Detention Center?
Eric Lewis Yes, one person, Abu Qatada.

James Lewis QC So you have no expertise in prisons?
Eric Lewis I have visited extensively in prisons and observed prison conditions. I have read widely and in detail on the subject.
James Lewis QC Abu Qatada was acquitted of 14 of the 18 charges against him. Was that not acquittal by the same jury pool that would try Julian Assange?
Eric Lewis No. That was [the District of] Columbia, not Eastern Virginia. Very different jury pools.
James Lewis QC The prosecutors withdrew capital charges. You said that was a courageous but correct decision?
Eric Lewis Yes.
James Lewis QC So what was Qatada’s sentence and what was the maximum?
Eric Lewis The government asked for life but to my mind that was not legal for the charges on which he was convicted. He got 22 years. That was much criticised as harsh for those charges.

William G. Truesdale Adult Detention Center. (Alexandriava.gov website)

James Lewis QC Was the Abu Qatada trial a denial of justice?
Eric Lewis No.
James Lewis QC Abu Qatada was held under Special Administrative Measures. Did that prevent you from spending many hours with him?
Eric Lewis No, but it made it extremely difficult. The many hours were spread out over a long period. That is why remand lasted for three years.
James Lewis QC Were your meetings with him monitored?
Eric Lewis Yes.
James Lewis QC But not by the prosecution.
Eric Lewis It was all recorded by the authorities. We were told that nothing would be passed to the prosecution. But from many other reports I am not convinced that is true.

James Lewis QC What jury pool was Zacarias Moussaoui convicted by?
Eric Lewis He was not convicted by a jury. He pled guilty.
James Lewis QC But the jury decided against the death penalty.
Eric Lewis Yes.
James Lewis QC What about Maria Butina? She was charged with being an agent of the Russian Federation but received a light sentence?
Eric Lewis That was a very weird case. She did no more than cultivate some figures in the National Rifle Association. She was sentenced to time served.
James Lewis QC But she only got 18 months when the maximum was 20 years?
Eric Lewis Yes. It was not a comparable case, and it was a plea deal.
James Lewis QC You have addressed prison conditions because the defence argue that Article 3 of the European Convention on Human Rights will be breached. You consider the case of Babar Ahmed. You state that it is “almost certain” that Julian Assange will be subject to administrative segregation. What is the procedure for administrative segregation?
Eric Lewis The bureau president will decide depending upon various factors including security risk, threat to national security, threat to other prisoners, seriousness of the charge. My experience is that national-security-charged prisoners go straight into administrative segregation.
James Lewis QC (very aggressive) What are you reading?
Eric Lewis Pardon?
James Lewis QC You are reading something there. What is it?
Eric Lewis It is my witness statement. (Holds it up). Is that not OK?
James Lewis QC That is alright. I thought it was something else. How many categories of administrative detention are there?
Eric Lewis I just went through the main ones. National security, serious charge, threat to other prisoners.
James Lewis QC You do not know the categories. They are (reels off a long list including national security, serious charge, threat to others, threat to self, medical custody, protective custody and several more). Do you agree there is no solitary confinement in administrative segregation and Special Administrative Measures?
Eric Lewis No.
James Lewis QC U.S. Assistant Attorney Kromberg states in his affidavit that there is no solitary confinement
Eric Lewis It is solitary confinement other than in the vernacular of the U.S. prison service.
James Lewis QC In that case it is also not solitary confinement in the vernacular of the English High Court, which has accepted there is no solitary confinement.
Eric Lewis It is solitary confinement. When you are kept in a tiny cell for 23 hours a day and allowed no contact with the rest of the prison population even during the one hour you are allowed out, that is solitary confinement. The attempt to deny it is semantic.

 

Artist’s view of an ADX Florence cell design. (RicHard-59, CC BY-SA 3.0, Wikimedia Commons)

 

James Lewis QC Was Abu Qatada in solitary confinement? When he was permitted unlimited legal visits?
Eric Lewis They were not unlimited. In reality there were practical and logistical obstacles. There was a single room that could be used, for the entire prison population. You had to get a booking for that one room. You had to book translation services. The FBI oversaw the visits and listened in. Now with Covid there are no visits at all. Theoretically visits are “unlimited” but in practice you do not get nearly as much time with your client as you need.
James Lewis QC You said that he would be held in solitary confinement. But is it not true that even prisoners under SAMs get a break schedule?
Eric Lewis There is a break schedule but it requires no other prisoner to be in the communal areas to have contact with the prisoner under SAM. So in practice the “one hour break” would typically be scheduled between 3 a.m. and 4 a.m. Not many prisoners wanted to get out of bed at 3 a.m. to walk around a cold and empty communal area.

At this point there was a break.

Lewis Complains Forcefully 

James Lewis QC used it forcefully to complain to Judge Baraitser about the four-hour limit set on his cross-examination of Eric Lewis.

He said that so far he had only got through one-and-a-half pages of his questions, and that Eric Lewis refused to give yes or no answers but instead insisted on giving lengthy explanations. James Lewis QC was plainly extremely needled by Eric Lewis’ explanations of “unlimited visiting time” and “no solitary confinement.” He complained that Baraitser was “failing to control the witness”.

It was plain that James Lewis’ real aim was not to get more time, but to get Baraitser to curtail Eric Lewis’s inconvenient answers. It is of course amazing that he was complaining about four hours when the defence had been limited to half-an-hour and had not even been permitted to get to the latest superseding indictment.

Baraitser, to her credit, replied that it was not for her to control the witness, who must be free to give his evidence so long as it was relevant, which it was. It was a question of fairness not of control. James Lewis was asking open or general questions.

James Lewis responded that the witness refused to give binary answers. Therefore his cross examination must be longer than four hours.

He became very heated and told Baraitser that never in his entire career had he been subject to a guillotine on cross examination, and that this “would not happen in a real court.” He very definitely said that:

“This would not happen in a real court.”

I have of course been arguing all along that this is not a genuine process. I did not expect to hear that from James Lewis QC, though I think his intention was just to bully Baraitser, which was confirmed by Lewis going on to state he had never heard of such a guillotine in his capacity of “high court judge.” I find that Lewis is listed as “deputy high court judge,” which I think is like being 12th man at cricket, or Gareth Bale.

Baraitser only conceded very slight ground under this onslaught, saying she had never used the word guillotine, that the timings had been agreed between parties, and she expected them to stick to them.

James Lewis said it was impossible in that way to adequately to represent his client (the U.S. government). He said he felt “stressed,” which for once seemed true, he had gone purple. Baraitser said he should try his best to stick to the four hours. He fumed away (though at a later stage apologised to Baraitser for his “intemperate language”).

U.S. Department of Justice headquarters in Washington. (CC BY-SA 3.0, Wikimedia Commons)

James Lewis QC’s touting for business webpage describes him as “the Rolls Royce of advocates.” I suppose that is true, in the sense of foreign owned. Yet here he was before us, blowing a gasket, not getting anywhere, emitting fumes and resembling a particularly unloved Trabant.

Cross-examination of Eric Lewis resumed. James Lewis QC started by reiterating the criteria and categories for Administrative Segregation after conviction (as opposed to pre-trial). Then we got back into questioning.

James Lewis QC Gordon Kromberg states that there is no solitary confinement in ADX Colorado.
Eric Lewis Again this is semantic. There is solitary confinement.
James Lewis QC But there is an entitlement to participate in three programs a week.
Eric Lewis Not in Special Administrative Measures.
James Lewis QC But which of the criteria for Special Administrative Measures might Julian assange fall into?
Eric Lewis Criteria 2, 4 and 5, at least.
James Lewis QC Can we agree there is a formal procedure?
Eric Lewis Yes, but not worth the name.
James Lewis Your opinion is based on one single client in ADX Colorado
Eric Lewis Yes, but the system is essentially the same as other super-maxes.

European Court of Human Rights building in Strasbourg, France. (CherryX, CC BY-SA 3.0, Wikimedia Commons)

James Lewis At para 14 of your report you state that the system lacks procedural rights, and is tantamount to solitary confinement. Had you read the Eurpopean Court of Human Rights judgement on Barbar Ahmed when you wrote this?
Eric Lewis Yes.
James Lewis That judgement specifically rejects the same claims you make.

James Lewis QC refers to a number of paragraphs in the original U.K. district court decision in the case of Babar Ahmad. Eric Lewis asks for more time to find the document as “I only received these documents from the court this morning.”

James Lewis QC But Mr. Lewis, you have testified on oath that you had read the Babar Ahmad judgement.
Eric Lewis I have read the final judgement of the European Court of Human Rights. I had not read all the judgements from lower courts. I received them from the court his morning.
James Lewis QC The senior district judge ruled that although Special Administrative Measures were a concern, they did not preclude extradition. There were various safeguards to SAMs. For example although attorney/client conversations were monitored, that was only for the purpose of preventing terrorism and the FBI did not pass on the recordings to the prosecution. The judge rejected the idea that SAMs amounted to solitary confinement. The High Court upheld the District judge’s ruling and the House of Lords rejected Babar Ahmad’s application to appeal. In its ruling on admissibility of the case, the European Court of Human Rights considered six affidavits from U.S. attorneys very similar to that submitted by Eric Lewis in this case. This included the affirmations that it would be “virtually certain” that Babar Ahmad would be subject to SAMs, and that these would interfere directly with the right to a fair trial, and would constitute cruel and degrading treatment. The ECHR found in relation to pre-trial detention that these allegations were wrong in the Babar Ahmad case.
Eric Lewis But that was a terrorism case, not a national security case. SAMs apply differently in national security cases. This is about a million classified documents. Different cases had to be considered each on their merits.
James Lewis QC In the Babar Ahmad case, the defence submissions were that the regime was harsh, amounted to solitary confinement nearly 24 hours a day, with one phone call every two weeks and one family visit a month. Is that not almost identical to your evidence here?
Eric Lewis Each case must be considered on its merits. There are key differences. Assange is charged with espionage not terrorism, and possession of classified intelligence is a factor. Mental health issues are also different. Under SAMS there is no intenet access and no access to any news source. Only approved reading material is allowed. These would be particularly hard for Assange.

Julian Assange outside U.K. Supreme Court in 2011. (Flickr)

James Lewis QC But the Babar Ahmad case does specifically deal with mental-health issues, between Babar and co-defendants these include clinical depression, suicide risk and Asperger’s. The court agreed that SAMs would be likely to be applied both before and after trial. But it ruled that the American government had good reasons for imposing SAMs, were entitled to do so, and that there was a clear and non-arbitrary procedure for implementing them.
Eric Lewis replied that he disagreed that would be true in this case. SAM’s could be applied without procedure, by the U.S. Attorney-General and William Barr would do that in this case, on the basis of statements by Trump and Gina Haspel [CIA director]. In practice, SAMs had never been overturned whatever the claimed procedure. Eric Lewis did not agree they were not arbitrary.

There now followed an episode where James Lewis QC successfully tripped up Eric Lewis by quoting a passage from an Ahmad case judgement and then confusing him as to whether it was from the final ECHR judgement, which Eric Lewis had read, or from an earlier English court judgement or the ECHR prior judgement on admissibility, which he had not.

James Lewis QC So the ECHR viewed the argument that the SAM regime in pre-trial detention breaches Article 3 as ill-founded and inadmissible. Do you agree with the European Court of Human Rights?
Eric Lewis They found that in the Babar Ahmad admissibility decision in 2008. New information and evidence and changes to the regime since then might change that view.
James Lewis QC What are the defence issues that Assange will raise that you say makes proper consultation under the SAM regime impossible?
Eric Lewis Well I don’t know the precise details of what his defence will be but…
James Lewis QC [interrupting] Well how can you possibly know what the issues will be if you do not know the case?
Eric Lewis Because I have read the indictment. The issues are very wide ranging indeed and involve national security documents.
James Lewis QC But you don’t know what defence at all will be put forward, so how can you opine?
Eric Lewis The charges themselves give a fair idea what might be covered.
James Lewis QC Turning to the Babar Ahmad final judgement on post-trial incarceration at ADX Colorado. Have you read this (sarcastic emphasis) judgement? Of 210,307 federal prisoners, only 41 of these had SAMs; 27 were in ADX Colorado.
Eric Lewis The warden of ADX Colorado himself had stated that it was “not fit for humanity” and “a fate worse than death.”
James Lewis QC The ECHR said that SAMS was subject to oversight by independent authorities who looked after the interests of prisoners and could intervene.
Eric Lewis Since that ECHR judgement, a new U.S. judgement had stated that prisoners have no Fifth Amendment right to appeal against the conditions of their incarceration.
James Lewis QC The ECHR found that the U.S. prison authorities took cognizance of a prisoner’s mental state in relation to SAM measures
Eric Lewis Things have also moved on there since 2012. He referenced details from his written evidence.
James Lewis QC The ECHR also found that “the isolation experienced by ADX inmates is partial and relative. The court notes that their psychiatric conditions have not prevented their high security detention in the United Kingdom.” Do you accept that in 2012 the ECHR made a thorough finding?
Eric Lewis Yes, on the basis of what they knew in 2012, but much more information is now available. And there are specific reasons to doubt Mr. William Barr’s impartiality.
James Lewis QC You say that Mr. Assange will not receive adequate healthcare in a U.S. prison. Are you a medical expert?
Eric Lewis No.
James Lewis QC Do you hold any medical qualification?
Eric Lewis No.
James Lewis QC What published statement gives the policy of the Bureau of Prisons on Mental Health?
Eric Lewis I was relying on the published statement of the U.S. inspector of prisons and the study by Yale Law School of mental health in U.S. prisons. The U.S. Bureau of Prisons states that 48 percent of prisoners have serious mental-health problems but only 3 percent receive any treatment. The provision for mental healthcare in jails has been cut every year for a decade. Suicides in jail are increasing by 18 percent a year.

The Federal Home Loan Bank Board Building, which houses the main office of the Federal Bureau of Prisons in Washington, D.C. (AgnosticPreachersKid, CC BY-SA 4.0, Wikimedia Commons)

James Lewis QC Have you read “The Treatment and Care of Prisoners with Mental Illness” by the U.S. Department of Health?
Eric Lewis Yes.
James Lewis QC You purport to be an expert. Without looking it up what year was it published? You don’t know, do you?
Eric Lewis Could you be courteous? I have been courteous to you. Can you refer me to a relevant question?
James Lewis QC The policy has had eight changes since 2014. Can you list them?
Eric Lewis I am trying to testify on my experience and my knowledge in dealing with these questions on behalf of the many clients I have represented. If you are asking me am I a prison psychiatrist, I am not.
James Lewis QC Do you know the specific changes made since 2014 or not?
Eric Lewis I know that there were new regulations stipulating one mental-health professional for every 500 inmates and guidelines for an increase in accessibility, but I also know those have not in fact been implemented due to lack of resources.
James Lewis QC (smirking) How many levels of psychiatric assessment are there? What is level number three? What are you reading? You are reading! What are you reading! What are you reading! [Yes, this is not a mistake. He did pull this stunt again]
Eric Lewis I am looking at my own witness statement (shows it to camera).
James Lewis QC You are not a genuine expert witness you have no expertise in these matters. As you are being paid to give evidence and are not an expert, that is something the court will have to take account in deciding what weight, if any at all, to give to your evidence.

Before Eric Lewis could respond, the video link broke down, rather bizarrely broadcasting a news item about Trump attacking Julian Assange. It could not be restored all day, so that was the end of proceedings, for which my note-taking hand was not ungrateful. The link could be restored in the adjacent courtroom, which indicates the problem was very local. The judge considered changing courts but it was considered too difficult to move everyone and the great mounds of files and equipment. This hearing has frequently been interrupted by the strange incompetence of the Ministry of Justice in establishing simple video links.

Strange Conduct 

James Lewis QC’s conduct was very strange. It really is not normal courtroom behavior. Were there a jury, they would completely have written him off now as rude and obnoxious, and even Baraitser finally seems to have found her limit of being pushed around by the prosecution. Eric Lewis is obviously a very distinguished man and a lawyer with immense experience of the U.S. system. Trying to claim he has no expertise because he is not a psychiatrist or an academic in penology is no more than a shoddy trick, performed in a manner designed to humiliate.

The asking for the precise title of one particular Department of Health pamphlet or for a specific point in it, as though that were a way of invalidating all that Eric Lewis knows, is so transparently invalid as a test of worth that I am astonished Baraitser let James Lewis pursue it, let alone the histrionic accusations about “reading.”

This was really hard to sit through silently for me; goodness knows what it was like for Julian.

Mainstream Media’s Blind Eye 

The mainstream media are turning a blind eye. There were three reporters in the press gallery, one of them an intern and one representing the National Union of Journalists. [Update: James Doleman later led me to another hidden nest of them and there are about 10 in total. The main titles are inexcusably unrepresented, but press agencies are, even if their feeds are being little used.]

Public access continues to be restricted and major NGOs, including Amnesty, PEN and Reporters Without Borders, continue to be excluded both physically and from watching online. It has taken me literally all night to write this up — it is now 8.54am — and I have to finish off and get back into court.

The six of us allowed in the public gallery, incidentally, have to climb 132 steps to get there, several times a day. As you know, I have a very dodgy ticker; I am with Julian’s dad John Shipton who is 78; and another of us has a pacemaker.

I do not in the least discount the gallant efforts of others when I explain that I feel obliged to write this up, and in this detail, because otherwise the vital basic facts of the most important trial this century, and how it is being conducted, would pass almost completely unknown to the public.

If it were a genuine process, they would want people to see it, not completely minimise attendance both physically and online.

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

Craig Murray is an author, broadcaster and human rights activist. He was British ambassador to Uzbekistan from August 2002 to October 2004 and rector of the University of Dundee from 2007 to 2010.

This article is from CraigMurray.org.uk.

The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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Tags: raig Murray Edward Fitzgerald Eric Lewis James Lewis Julian Assange Vanessa Baraitser

Volume 26, Number 261–Thursday, September 17, 2020
BRITAIN, COMMENTARY, LEGAL, WIKILEAKS

ASSANGE EXTRADITION: Craig Murray: Your Man in the Public Gallery: Assange Hearing—Day 5 September 15, 2020
[Consortiumnews]
Consortiumnews
Volume 26, Number 261–Thursday, September 17, 2020
BRITAIN, COMMENTARY, LEGAL, WIKILEAKS

ASSANGE EXTRADITION: Craig Murray: Your Man in the Public Gallery: Assange Hearing—Day 5 September 15, 2020


Julian Assange extradition hearing: Punishing the publisher
10 September 2020,
The last time I saw Julian Assange he looked tired and wan.

  Julian Assange extradition hearing: Punishing the publisher  


https://www.amnesty.org/en/latest/news/2020/09/julian-assange-extradition-hearing-punishing-the-publisher/

Dressed neatly in casual business attire, the Wikileaks founder was sitting in a glass-enclosed dock, at the back of a courtroom adjoining Belmarsh high security prison in London, flanked by two prison officers.

I had travelled from the US to observe the hearing. He had travelled via tunnel from his cell to the courtroom.

Sitting 20 feet away from Julian Assange, I was struck by how much of a shadow of his former self he had become. 
Julia Hall, Amnesty International

Today, Julian Assange will be in court again, for the resumption of proceedings that will ultimately decide on the Trump administration’s request for his extradition to the US.

But it is not just Julian Assange that will be in the dock. Beside him will sit the fundamental tenets of media freedom that underpin the rights to freedom of expression and the public’s right to access to information. Silence this one man, and the US and its accomplices will gag others, spreading fear of persecution and prosecution over a global media community already under assault in the US and in many other countries worldwide.

The stakes really are that high. If the UK extradites Assange, he would face prosecution in the USA on espionage charges that could send him to prison for decades – possibly in a facility reserved for the highest security detainees and subjected to the strictest of daily regimes, including prolonged solitary confinement. All for doing something news editors do the world over – publishing public interest information provided by sources .

Indeed, President Donald Trump has called Wikileaks “disgraceful” and said that its actions in publishing classified information should carry the death penalty

The chilling effect on other publishers, investigative journalists and any person who would dare to facilitate the publication of classified information of government wrongdoing would be immediate and severe.  And the US would boldly go beyond its own borders with a long arm to reach non-citizens, like Assange, who is Australian.

You don’t need to be an expert in extradition law to understand that the charges against Assange are politically-motivated.

The US government’s relentless pursuit of Assange - and the UK’s willing participation in his hunt and capture - has now landed him in a prison typically reserved for seasoned criminals. It has diminished him both physically and emotionally – often to the point of disorientation. Breaking him by isolating Assange from family, friends and his legal team, seems part and parcel of the US’s strategy – and it seems to be working.

You don’t need to know the vagaries of extradition law to understand that the charges against Assange are not only classic “political offences” and thus barred under extradition law, but more crucially, the charges are politically-motivated.

The 17 charges levelled by the US under the 1918 Espionage Act could bring 175 years in prison; add a conviction on the single computer fraud charge (said to complement the Espionage Act by dragging it into the computer era), and you get another gratuitous five years. Assange is the only publisher ever to bear the brunt of such espionage charges. 

There is no doubt that the charges are politically-motivated under this US administration, which has all but convicted Assange in the public arena. Secretary of State Mike Pompeo has claimed that Wikileaks is a “hostile intelligence service” whose activities must be “mitigated and managed.” The flagrantly unfair prosecution of Assange is an example of how far the US will go to “manage” the flow of information about government wrongdoing and thus undermine the public’s right to know.

Assange was on Barack Obama’s radar, too, but the Obama administration declined to prosecute Assange. Current US Attorney General William Barr, however, has turned out not one, but two indictments since 2019, the latest at the end of June. That second indictment was a surprise not only to Assange’s defence team, but to the Crown lawyer and the judge who were also taken unawares by the new indictment.

Earlier this year, sitting 20 feet away from Julian Assange, I was struck by how much of a shadow of his former self he had become. He did spontaneously stand up several times during that week of hearings to address the judge. He told her he was confused. He told her he could not properly hear the proceedings. He said that barriers in the prison and in court meant that he had not been able to consult with his lawyers. He was not technically permitted to address the judge directly, but he did repeatedly, flashes of the aggressive tactics used in the past to advocate for himself and the principles he has espoused.

Publishing such information is a cornerstone of media freedom and the public's right to access information. It must be protected, not criminalized. 
Julia Hall, Amnesty International

If Julian Assange is extradited it will have far reaching human rights implications, setting a chilling precedent for the protection of those who publish leaked or classified information that is in the public interest.

Publishing such information is a cornerstone of media freedom and the public's right to access information. It must be protected, not criminalized.

Julia Hall is Amnesty International's expert on human rights in Europe

TWITTER by Edward Snowden
Description of the Extradition Trial of 
Julian Assange
"... Read this and tell me that the Show Trial of Julian Assange does not read like something from Kafka ... the judge permits the charges to be changed so frequently that the defense doesn't what they are .. the basic demands are denied ... no one can hear what the defendant says..

Wikipedia Exposed Media - WEM www.wikipediaexposed.org

FREEDOM TO PROVIDE FACTS, INFORMATION, OPINION AND DEBATE WIKIPEDIA EXPOSED MEDIA - TRUTHFUL NEWS MEDIA, ENCOURAGE OPEN DEBATE

ASSANGE EXTRADITION: Your Man in Public Gallery – Day No. 1

February 25, 2020
Craig Murray reports on Monday’s opening statements in court, where the mere act of being an honest witness was suddenly extremely important since the media had  abandoned that role.

By Craig Murray
CraigMurray.org.uk

Woolwich Crown Court is designed to impose the power of the state. Normal courts in this country are public buildings, deliberately placed by our ancestors right in the center of towns, almost always just up a few steps from a main street. The major purpose of their positioning and of their architecture was to facilitate public access in the belief that it is vital that justice can be seen by the public. 

Woolwich Crown Court, which hosts Belmarsh Magistrates Court, is built on totally the opposite principle. It is designed with no other purpose than to exclude the public. Attached to a prison on a windswept marsh far from any normal social center, an island accessible only through navigating a maze of dual carriageways, the entire location and architecture of the building is predicated on preventing public access. It is surrounded by a continuation of the same extremely heavy-duty steel paling barrier that surrounds the prison. It is the most extraordinary thing, a courthouse which is a part of the prison system itself, a place where you are already considered guilty and in jail on arrival.

Woolwich Crown Court is nothing but the physical negation of the presumption of innocence, the very incarnation of injustice in unyielding steel, concrete and armored glass. It has precisely the same relationship to the administration of justice as Guantanamo Bay or the Lubyanka. It is in truth just the sentencing wing of Belmarsh prison.

Woolwich Crown Court, where Assange will be tried on the extradition request. (Joe Lauria)

When enquiring about facilities for the public to attend the hearing, an Assange activist was told by a member of court staff that we should realize that Woolwich is a “counter-terrorism court.” That is true de facto, but in truth a “counter-terrorism court” is an institution unknown to the U.K. constitution. Indeed, if a single day at Woolwich Crown Court does not convince you the existence of liberal democracy is now a lie, then your mind must be very closed indeed.

Extradition hearings are not held at Belmarsh Magistrates Court inside Woolwich Crown Court. They are always held at Westminster Magistrates Court as the application is deemed to be delivered to the government at Westminster. Now get your head around this. This hearing is at Westminster Magistrates Court. It is being held by the Westminster magistrates and Westminster court staff, but located at Belmarsh Magistrates Court inside Woolwich Crown Court. All of which weird convolution is precisely so they can use the “counter-terrorist court” to limit public access and to impose the fear of the power of the state.

One consequence is that, in the courtroom itself, Julian Assange is confined at the back of the court behind a bulletproof glass screen. He made the point several times during proceedings that this makes it very difficult for him to see and hear the proceedings. The magistrate, Vanessa Baraitser, chose to interpret this with studied dishonesty as a problem caused by the very faint noise of demonstrators outside, as opposed to a problem caused by Assange being locked away from the court in a massive bulletproof glass box. 

Publisher in Bulletproof Box

Now there is no reason at all for Assange to be in that box, designed to restrain extremely physically violent terrorists. He could sit, as a defendant at a hearing normally would, in the body of the court with his lawyers. But the cowardly and vicious Baraitser has refused repeated and persistent requests from the defense for Assange to be allowed to sit with his lawyers. Baraitser of course is but a puppet, being supervised by Chief Magistrate Lady Arbuthnot, a woman so enmeshed in the defense and security service establishment I can conceive of no way in which her involvement in this case could be more corrupt. 

It does not matter to Baraitser or Arbuthnot if there is any genuine need for Assange to be incarcerated in a bulletproof box, or whether it stops him from following proceedings in court. Baraitser’s intention is to humiliate Assange, and to instill in the rest of us horror at the vast crushing power of the state. The inexorable strength of the sentencing wing of the nightmarish Belmarsh Prison must be maintained. If you are here, you are guilty. 

It’s the Lubyanka. You may only be a remand prisoner. This may only be a hearing not a trial. You may have no history of violence and not be accused of any violence. You may have three of the country’s most eminent psychiatrists submitting reports of your history of severe clinical depression and warning of suicide. But I, Vanessa Baraitser, am still going to lock you up in a box designed for the most violent of terrorists. To show what we can do to dissidents. And if you can’t then follow court proceedings, all the better.

You will perhaps better accept what I say about the court when I tell you that, for a hearing being followed all round the world, they have brought it to a courtroom which had a total number of 16 seats available to members of the public. Sixteen.

To make sure I got one of those 16 and could be your man in the gallery, I was outside that great locked iron fence queuing in the cold, wet and wind from 6 a.m. At 8 a.m. the gate was unlocked, and I was able to walk inside the fence to another queue before the doors of the courtroom, where despite the fact notices clearly state the court opens to the public at 8 a.m, I had to queue outside the building again for another hour and 40 minutes. Then I was processed through armored airlock doors, through airport type security, and had to queue behind two further locked doors, before finally getting to my seat just as the court started at 10 a.m. By which stage the intention was we should have been thoroughly cowed and intimidated, not to mention drenched and potentially hypothermic. 

There was a separate media entrance and a media room with live transmission from the courtroom, and there were so many scores of media I thought I could relax and not worry as the basic facts would be widely reported. In fact, I could not have been more wrong. I followed the arguments very clearly every minute of the day, and not a single one of the most important facts and arguments has been reported anywhere in the mainstream media. That is a bold claim, but I fear it is perfectly true. So, I have much work to do to let the world know what actually happened. The mere act of being an honest witness is suddenly extremely important, when the entire media has abandoned that role.

Opening Statement for the Prosecution

James Lewis QC.

James Lewis QC made the opening statement for the prosecution. It consisted of two parts, both equally extraordinary. The first and longest part was truly remarkable for containing no legal argument, and for being addressed not to the magistrate but to the media.

It is not just that it was obvious that is where his remarks were aimed, he actually stated on two occasions during his opening statement that he was addressing the media, once repeating a sentence and saying specifically that he was repeating it again because it was important that the media got it.

I am frankly astonished that Baraitser allowed this. It is completely out of order for a counsel to address remarks not to the court but to the media, and there simply could not be any clearer evidence that this is a political show trial and that Baraitser is complicit in that.

I have not the slightest doubt that the defense would have been pulled up extremely quickly had they started addressing remarks to the media. Baraitser makes zero pretence of being anything other than in thrall to the Crown, and by extension to the US Government.

The points which Lewis wished the media to know were these: it is not true that mainstream outlets like The Guardianand New York Timesare also threatened by the charges against Assange, because Assange was not charged with publishing the cables but only with publishing the names of informants, and with cultivating Manning and assisting him to attempt computer hacking. Only Assange had done these things, not mainstream outlets.

Lewis then proceeded to read out a series of articles from the mainstream media attacking Assange, as evidence that the media and Assange were not in the same boat. The entire opening hour consisted of the prosecution addressing the media, attempting to drive a clear wedge between the media and WikiLeaksand thus aimed at reducing media support for Assange. It was a political address, not remotely a legal submission. At the same time, the prosecution had prepared reams of copies of this section of Lewis’ address, which were handed out to the media and given them electronically so they could cut and paste.

Official Secrets Act

Following an adjournment, magistrate Baraitser questioned the prosecution on the veracity of some of these claims. In particular, the claim that newspapers were not in the same position because Assange was charged not with publication, but with “aiding and abetting” Chelsea Manning in getting the material, did not seem consistent with Lewis’ reading of the 1989 Official Secrets Act, which said that merely obtaining and publishing any government secret was an offence. Surely, Baraitser suggested, that meant that newspapers just publishing the Manning leaks would be guilty of an offence?

This appeared to catch Lewis entirely off guard. The last thing he had expected was any perspicacity from Baraitser, whose job was just to do what he said. Lewis hummed and hawed, put his glasses on and off several times, adjusted his microphone repeatedly and picked up a succession of pieces of paper from his brief, each of which appeared to surprise him by its contents, as he waved them haplessly in the air and said he really should have cited the Shayler case but couldn’t find it. It was liking watching Columbo with none of the charm and without the killer question at the end of the process.

Suddenly Lewis appeared to come to a decision. Yes, he said much more firmly. The 1989 Official Secrets Act had been introduced by the Thatcher government after the Ponting Case, specifically to remove the public interest defense and to make unauthorized possession of an official secret a crime of strict liability – meaning no matter how you got it, publishing and even possessing made you guilty. Therefore, under the principle of dual criminality, Assange was liable for extradition whether or not he had aided and abetted Manning. Lewis then went on to add that any journalist and any publication that printed the official secret would therefore also be committing an offence, no matter how they had obtained it, and no matter if it did or did not name informants.

Contradicting Statement to Media

Lewis had thus just flat out contradicted his entire opening statement to the media stating that they need not worry as the Assange charges could never be applied to them. And he did so straight after the adjournment, immediately after his team had handed out copies of the argument he had now just completely contradicted. I cannot think it has often happened in court that a senior lawyer has proven himself so absolutely and so immediately to be an unmitigated and ill-motivated liar. This was undoubtedly the most breathtaking moment in Monday’s court hearing.

Yet remarkably I cannot find any mention anywhere in the mainstream media that this happened at all. What I can find, everywhere, is the mainstream media reporting, via cut and paste, Lewis’s first part of his statement on why the prosecution of Assange is not a threat to press freedom; but nobody seems to have reported that he totally abandoned his own argument five minutes later. Were the journalists too stupid to understand the exchanges?

The explanation is very simple. The clarification coming from a question Baraitser asked Lewis, there is no printed or electronic record of Lewis’ reply. His original statement was provided in cut and paste format to the media. His contradiction of it would require a journalist to listen to what was said in court, understand it and write it down. There is no significant percentage of mainstream media journalists who command that elementary ability nowadays. “Journalism” consists of cut and paste of approved sources only. Lewis could have stabbed Assange to death in the courtroom, and it would not be reported unless contained in a government press release.

I was left uncertain of Baraitser’s purpose in this. Plainly she discomfited Lewis very badly on this point, and appeared rather to enjoy doing so. On the other hand, the point she made is not necessarily helpful to the defense. What she was saying was essentially that Julian could be extradited under dual criminality, from the U.K. point of view, just for publishing, whether or not he conspired with Chelsea Manning, and that all the journalists who published could be charged too. But surely this is a point so extreme that it would be bound to be invalid under the Human Rights Act? Was she pushing Lewis to articulate a position so extreme as to be untenable – giving him enough rope to hang himself – or was she slavering at the prospect of not just extraditing Assange, but of mass prosecutions of journalists? 

The reaction of one group was very interesting. The four U.S. government lawyers seated immediately behind Lewis had the grace to look very uncomfortable indeed as Lewis baldly declared that any journalist and any newspaper or broadcast media publishing or even possessing any government secret was committing a serious offence. Their entire strategy had been to pretend not to be saying that.

Lewis then moved on to conclude the prosecution’s arguments. The court had no decision to make, he stated. Assange must be extradited. The offense met the test of dual criminality as it was an offence both in the USA and U.K.

U.K. extradition law specifically barred the court from testing whether there was any evidence to back up the charges. If there had been, as the defense argued, abuse of process, the court must still extradite and then the court must pursue the abuse of process as a separate matter against the abusers. (This is a particularly specious argument as it is not possible for the court to take action against the U.S. government due to sovereign immunity, as Lewis well knows). Finally, Lewis stated that the Human Rights Act and freedom of speech were completely irrelevant in extradition proceedings.

Opening Statement for Defense

Edward Fitzgerald then arose to make the opening statement for the defense. He started by stating that the motive for the prosecution was entirely political, and that political offences were specifically excluded under article 4.1 of the U.K./U.S. extradition treaty. He pointed out that at the time of the Chelsea Manning trial and again in 2013 the Obama administration had taken specific decisions not to prosecute Assange for the Manning leaks. This had been reversed by the Trump administration for reasons that were entirely political.

Defence lawyer Edward Fitzgerald: This prosecution is not about criminal justice, it is due to underlying political motives of the US government.
— WikiLeaks (@wikileaks) February 24, 2020

On abuse of process, Fitzgerald referred to evidence presented to the Spanish criminal courts that the CIA had commissioned a Spanish security company to spy on Julian Assange in the Ecuadorian embassy in London, and that this spying specifically included surveillance of Assange’s privileged meetings with his lawyers to discuss extradition. For the state trying to extradite to spy on the defendant’s client-lawyer consultations is in itself grounds to dismiss the case. (This point is undoubtedly true. Any decent judge would throw the case out summarily for the outrageous spying on the defense lawyers).

Fitzgerald went on to say the defense would produce evidence the CIA not only spied on Assange and his lawyers, but actively considered kidnapping or poisoning him, and that this showed there was no commitment to proper rule of law in this case.

Deliberate Misrepresentation in Framing the Case
Fitzgerald said that the prosecution’s framing of the case contained deliberate misrepresentation of the facts that also amounted to abuse of process. It was not true that there was any evidence of harm to informants, and the U.S. government had confirmed this in other fora, e.g. in Chelsea Manning’s trial. There had been no conspiracy to hack computers, and Chelsea Manning had been acquitted on that charge at court martial. Lastly it was untrue that WikiLeakshad initiated publication of unredacted names of informants, as other media organizations had been responsible for this first.

Again, so far as I can see, while the U.S. allegation of harm to informants is widely reported, the defense’s total refutation on the facts and claim that the fabrication of facts amounts to abuse of process is not much reported at all. Fitzgerald finally referred to U.S. prison conditions, the impossibility of a fair trial in the U.S., and the fact the Trump administration has stated foreign nationals will not receive First Amendment protections, as reasons that extradition must be barred. You can read the whole defense statement, but in my view the strongest passage was on why this is a political prosecution, and thus precluded from extradition.

“For the purposes of section 81(a), I next have to deal with the question of how this politically motivated prosecution satisfies the test of being directed against
Julian Assange because of his political opinions. The essence of his political opinions which have provoked this prosecution are summarised in the reports
of Professor Feldstein [tab 18], Professor Rogers [tab 40], Professor Noam Chomsky [tab 39] and Professor Kopelman:-
i. He is a leading proponent of an open society and of freedom of expression.
ii. He is anti-war and anti-imperialism.
iii. He is a world-renowned champion of political transparency and of the
public’s right to access information on issues of importance – issues such
as political corruption, war crimes, torture and the mistreatment of
Guantanamo detainees.
5.4.Those beliefs and those actions inevitably bring him into conflict with powerful
states including the current US administration, for political reasons. Which
explains why he has been denounced as a terrorist and why President Trump
has in the past called for the death penalty.
5.5.But I should add his revelations are far from confined to the wrongdoings of
the US. He has exposed surveillance by Russia; and published exposes of Mr
Assad in Syria; and it is said that WikiLeaks revelations about corruption in
Tunisia and torture in Egypt were the catalyst for the Arab Spring itself.
5.6.The US say he is no journalist. But you will see a full record of his work in
Bundle M. He has been a member of the Australian journalists union since
2009, he is a member of the NUJ and the European Federation of Journalists.
He has won numerous media awards including being honoured with the
highest award for Australian journalists. His work has been recognised by the
Economist, Amnesty International and the Council of Europe. He is the winner
of the Martha Gelhorn prize and has been repeatedly nominated for the Nobel
Peace Prize, including both last year and this year. You can see from the
materials that he has written books, articles and documentaries. He has had
articles published in the Guardian, the New York Times, the Washington Post
and the New Statesman, just to name a few. Some of the very publications for
which his extradition is being sought have been refereed to and relied upon in
Courts throughout the world, including the UK Supreme Court and the
European Court of Human Rights. In short, he has championed the cause of
transparency and freedom of information throughout the world.
5.7.Professor Noam Chomsky puts it like this: – ‘in courageously upholding
political beliefs that most of profess to share he has performed an
enormous service to all those in the world who treasure the values of
freedom and democracy and who therefore demand the right to know
what their elected representatives are doing’ [see tab 39, paragraph 14].
So Julian Assange’s positive impact on the world is undeniable. The hostility
it has provoked from the Trump administration is equally undeniable.
The legal test for ‘political opinions’
5.8.I am sure you are aware of the legal authorities on this issue: namely whether
a request is made because of the defendant’s political opinions. A broad
approach has to be adopted when applying the test. In support of this we rely
on the case of Re Asliturk [2002] EWHC 2326 (abuse authorities, tab 11, at
paras 25 – 26) which clearly establishes that such a wide approach should be
adopted to the concept of political opinions. And that will clearly cover Julian
Assange’s ideological positions. Moreover, we also rely on cases such as
Emilia Gomez v SSHD [2000] INLR 549 at tab 43 of the political offence authorities bundle. These show that the concept of “political opinions” extends to the political opinions imputed to the individual citizen by the state which prosecutes him. For that reason the characterisation of Julian Assange and WikiLeaks as a “non-state hostile intelligence agency” by Mr Pompeo makes clear that he has been targeted for his imputed political opinions. All the
experts whose reports you have show that Julian Assange has been targeted because of the political position imputed to him by the Trump administration –
as an enemy of America who must be brought down.” 

Craig Murray is an author, broadcaster and human rights activist. He was British ambassador to Uzbekistan from August 2002 to October 2004 and rector of the University of Dundee from 2007 to 2010.


This article is from CraigMurray.org.uk.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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Julian Assange attending CIA/MI6/USA Extradition Hearings of Trumped up charges just for exposing the truth to the world of crimes committed by the CIA/MI6/USA

Your man in the public gallery – Julian Assange hearing, Day Four
James Lewis QC argued that Parliament had not included a bar on extradition for political offences in the 2003 Act, and also that these were not political offences.Craig Murray
29 February 2020
Opendemocracy.net


 Please try this experiment for me.
Try asking this question out loud, in a tone of intellectual interest and engagement: “Are you suggesting that the two have the same effect?”
Now try asking this question out loud, in a tone of hostility and incredulity bordering on sarcasm: “Are you suggesting that the two have the same effect?”


Firstly, congratulations on your acting skills; you take direction very well. Secondly, is it not fascinating how precisely the same words can convey the opposite meaning dependent on modulation of stress, pitch, and volume?

Yesterday the prosecution continued its argument that the provision in the 2007 UK/US Extradition Treaty that bars extradition for political offences is a dead letter, and that Julian Assange’s objectives are not political in any event. James Lewis QC for the prosecution spoke for about an hour, and Edward Fitzgerald QC replied for the defence for about the same time. During Lewis’s presentation, he was interrupted by Judge Baraitser precisely once. During Fitzgerald’s reply, Baraitser interjected seventeen times.

In the transcript, those interruptions will not look unreasonable:
“Could you clarify that for me Mr Fitzgerald…”
“So how do you cope with Mr Lewis’s point that…”
“But surely that’s a circular argument…”
“But it’s not incorporated, is it?…”

All these and the other dozen interruptions were designed to appear to show the judge attempting to clarify the defence’s argument in a spirit of intellectual testing. But if you heard the tone of Baraitser’s voice, saw her body language and facial expressions, it was anything but.

The false picture a transcript might give is exacerbated by the courtly Fitzgerald’s continually replying to each obvious harassment with “Thank you Madam, that is very helpful”, which again if you were there, plainly meant the opposite.

Is it not fascinating how precisely the same words can convey the opposite meaning dependent on modulation of stress, pitch, and volume?

But what a transcript will helpfully nevertheless show was the bully pulpit of Baraitser’s tactic in interrupting Fitzgerald again and again and again, belittling his points and very deliberately indeed preventing him from getting into the flow of his argument. The contrast in every way with her treatment of Lewis could not be more pronounced.

So now to report the legal arguments themselves.
James Lewis for the prosecution, continuing his arguments from the day before, said that Parliament had not included a bar on extradition for political offences in the 2003 Act. It could therefore not be reintroduced into law by a treaty. “To introduce a Political Offences bar by the back door would be to subvert the intention of Parliament.”
Lewis also argued that these were not political offences. The definition of a political offence was in the UK limited to behaviour intended “to overturn or change a government or induce it to change its policy.” Furthermore the aim must be to change government or policy in the short term, not the indeterminate future.
Lewis stated that further the term “political offence” could only be applied to offences committed within the territory where it was attempted to make the change. So to be classified as political offences, Assange would have had to commit them within the territory of the USA, but he did not.

If Baraitser did decide the bar on political offences applied, the court would have to determine the meaning of “political offence” in the UK/US Extradition Treaty and construe the meaning of paragraphs 4.1 and 4.2 of the Treaty. To construe the terms of an international treaty was beyond the powers of the court.

Lewis perorated that the conduct of Julian Assange cannot possibly be classified as a political offence. “It is impossible to place Julian Assange in the position of a political refugee”. The activity in which Wikileaks was engaged was not in its proper meaning political opposition to the US Administration or an attempt to overthrow that administration. Therefore the offence was not political.

For the defence Edward Fitzgerald replied that the 2003 Extradition Act was an enabling act under which treaties could operate. Parliament had been concerned to remove any threat of abuse of the political offence bar to cover terrorist acts of violence against innocent civilians. But there remained a clear protection, accepted worldwide, for peaceful political dissent. This was reflected in the Extradition Treaty on the basis of which the court was acting.

Baraitser interrupted that the UK/US Extradition Treaty was not incorporated into English Law.

Fitzgerald replied that the entire extradition request is on the basis of the treaty. It is an abuse of process for the authorities to rely on the treaty for the application but then to claim that its provisions do not apply.

“On the face of it, it is a very bizarre argument that a treaty which gives rise to the extradition, on which the extradition is founded, can be disregarded in its provisions. It is on the face of it absurd.” Edward Fitzgerald QC for the Defence

Fitzgerald added that English Courts construe treaties all the time. He gave examples.

Fitzgerald went on that the defence did not accept that treason, espionage and sedition were not regarded as political offences in England. But even if one did accept Lewis’s too narrow definition of political offence, Assange’s behaviour still met the test. What on earth could be the motive of publishing evidence of government war crimes and corruption, other than to change the policy of the government? Indeed, the evidence would prove that Wikileaks had effectively changed the policy of the US government, particularly on Iraq.

Baraitser interjected that to expose government wrongdoing was not the same thing as to try to change government policy. Fitzgerald asked her, finally in some exasperation after umpteen interruptions, what other point could there be in exposing government wrongdoing other than to induce a change in government policy?

That concluded opening arguments for the prosecution and defence.

My personal commentary

Let me put this as neutrally as possible. If you could fairly state that Lewis’s argument was much more logical, rational and intuitive than Fitzgerald’s, you could understand why Lewis did not need an interruption while Fitzgerald had to be continually interrupted for “clarification”. But in fact it was Lewis who was making out the case that the provisions of the very treaty under which the extradition is being made, do not in fact apply, a logical step which I suggest the man on the Clapham omnibus might reason to need rather more testing than Fitzgerald’s assertion to the contrary. Baraitser’s comparative harassment of Fitzgerald when he had the prosecution on the ropes was straight out of the Stalin show trial playbook.

The defence did not mention it, and I do not know if it features in their written arguments, but I thought Lewis’s point that these could not be political offences, because Julian Assange was not in the USA when he committed them, was breathtakingly dishonest. The USA claims universal jurisdiction. Assange is being charged with crimes of publishing committed while he was outside the USA. The USA claims the right to charge anyone of any nationality, anywhere in the world, who harms US interests. They also in addition here claim that as the materials could be seen on the internet in the USA, there was an offence in the USA. At the same time to claim this could not be a political offence as the crime was committed outside the USA is, as Edward Fitzgerald might say, on the face of it absurd. Which curiously Baraitser did not pick up on.

At the same time to claim this could not be a political offence as the crime was committed outside the USA is on the face of it absurd.

Lewis’s argument that the Treaty does not have any standing in English law is not something he just made up. Nigel Farage did not materialise from nowhere. There is in truth a long tradition in English law that even a treaty signed and ratified with some bloody Johnny Foreigner country, can in no way bind an English court. Lewis could and did spout reams and reams of judgements from old beetroot faced judges holding forth to say exactly that in the House of Lords, before going off to shoot grouse and spank the footman’s son. Lewis was especially fond of the Tin Council case.

There is of course a contrary and more enlightened tradition, and a number of judgements that say the exact opposite, mostly more recent. This is why there was so much repetitive argument as each side piled up more and more volumes of “authorities” on their side of the case.

The difficulty for Lewis – and for Baraitser – is that this case is not analogous to me buying a Mars bar and then going to court because an International Treaty on Mars Bars says mine is too small.

Rather the 2003 Extradition Act is an Enabling Act on which extradition treaties then depend. You can’t thus extradite under the 2003 Act without the Treaty. So the Extradition Treaty of 2007 in a very real sense becomes an executive instrument legally required to authorise the extradition. For the executing authorities to breach the terms of the necessary executive instrument under which they are acting, simply has to be an abuse of process. So the Extradition Treaty owing to its type and its necessity for legal action, is in fact incorporated in English Law by the Extradition Act of 2003 on which it depends.

The Extradition Treaty is a necessary precondition of the extradition, whereas a Mars Bar Treaty is not a necessary precondition to buying the Mars Bar.

That is as plain as I can put it. I do hope that is comprehensible.

It is of course difficult for Lewis that on the same day the Court of Appeal was ruling against the construction of the Heathrow Third Runway, partly because of its incompatibility with the Paris Agreement of 2016, despite the latter not being fully incorporated into English law by the Climate Change Act of 2008.

Vital personal experience

It is intensely embarrassing for the Foreign and Commonwealth Office (FCO) when an English court repudiates the application of a treaty the UK has ratified with one or more foreign states. For that reason, in the modern world, very serious procedures and precautions have been put into place to make certain that this cannot happen. Therefore the prosecution’s argument that all the provisions of the UK/US Extradition Treaty of 2007 are not able to be implemented under the Extradition Act of 2003, ought to be impossible.

I have been keen for the hearing on this particular point to conclude so that I could give you the benefit of my experience.

I need to explain I have myself negotiated and overseen the entry into force of treaties within the FCO. The last one in which I personally tied the ribbon and applied the sealing wax (literally) was the Anglo-Belgian Continental Shelf Treaty of 1991, but I was involved in negotiating others and the system I am going to describe was still in place when I left the FCO as an Ambassador in 2005, and I believe is unchanged today (and remember the Extradition Act was 2003 and the US/UK Extradition Treaty ratified 2007, so my knowledge is not outdated). Departmental nomenclatures change from time to time and so does structural organisation. But the offices and functions I will describe remain, even if names may be different.

All international treaties have a two stage process. First they are signed to show the government agrees to the treaty. Then, after a delay, they are ratified. This second stage takes place when the government has enabled the legislation and other required agency to implement the treaty. This is the answer to Lewis’s observation about the roles of the executive and legislature. The ratification stage only takes place after any required legislative action. That is the whole point.

This is how it happens in the FCO. Officials negotiate the extradition treaty. It is signed for the UK. The signed treaty then gets returned to FCO Legal Advisers, Nationality and Treaty Department, Consular Department, North American Department and others and is sent on to Treasury/Cabinet Office Solicitors and to Home Office, Parliament and to any other Government Department whose area is impacted by the individual treaty.

The Treaty is extensively vetted to check that it can be fully implemented in all the jurisdictions of the UK. If it cannot, then amendments to the law have to be made so that it can. These amendments can be made by Act of Parliament or more generally by secondary legislation using powers conferred on the Secretary of State by an act. If there is already an Act of Parliament under which the Treaty can be implemented, then no enabling legislation needs to be passed. International Agreements are not all individually incorporated into English or Scottish laws by specific new legislation.

This is a very careful step by step process, carried out by lawyers and officials in the FCO, Treasury, Cabinet Office, Home Office, Parliament and elsewhere. Each will in parallel look at every clause of the Treaty and check that it can be applied. All changes needed to give effect to the treaty then have to be made – amending legislation, and necessary administrative steps. Only when all hurdles have been cleared, including legislation, and Parliamentary officials, Treasury, Cabinet Office, Home Office and FCO all certify that the Treaty is capable of having effect in the UK, will the FCO Legal Advisers give the go ahead for the Treaty to be ratified. You absolutely cannot ratify the treaty before FCO Legal Advisers have given this clearance.

This is a serious process. That is why the US/UK Extradition Treaty was signed in 2003 and ratified in 2007. That is not an abnormal delay.

So I know for certain that all the relevant British Government legal departments must have agreed that Article 4.1 of the UK/US Extradition Treaty was capable of being given effect under the 2003 Extradition Act. That certification has to have happened or the Treaty could never have been ratified.

It follows of necessity that the UK Government, in seeking to argue now that Article 4.1 is incompatible with the 2003 Act, is knowingly lying. There could not be a more gross abuse of process.

I have been keen for the hearing on this particular point to conclude so that I could give you the benefit of my experience. I shall rest there for now, but later today hope to post further on yesterday’s row in court over releasing Julian from the anti-terrorist armoured dock… Truth shall set us free.

This blog was published on the author's website on February 28, 2020.

Man In The Gallery Julian Assange 
“And so it is to the printing press – to the recorder of man's deeds ... man's conscience.....

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

The Reasonable Man or Woman  Adapts  to the conditions that surround him ... 

The Unreasonable Man Woman  adapts surrounding conditions to himself ...
All progress depends on The Unreasonable Man ... and the Unreasonable Woman  
GB Shaw ... Mrs Warren's Profession ... 1893


Your Man in the Public Gallery: The Assange Hearing Day 6Published 
 September 9, 2020 By Craig Murray
TWITTER by Edward Snowden
Description of the Extradition Trial of Julian 

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

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

TWITTER by Edward Snowden
Description of the Extradition Trial of 
Julian Assange
"... Read this and tell me that the Show Trial of Julian Assange does not read like something from Kafka ... the judge permits the charges to be changed so frequently the defense doesn't what they are .. the basic demands are denied ... no one can hear what the defendant says..

Assange Hearing Day 6: I went to the Old Bailey

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 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 Freedom ArticlesThursday, September 10, 2020WHISTLEBLOWERS & ACTIVISTS

Your Man in the Public Gallery: The Assange Hearing Day 6Published 11 hours ago on September 9, 2020
By Craig Murray
[assange hearing day 6]

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

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).PROMOTED CONTENT
[Mgid]

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.PROMOTED CONTENT
[Mgid]

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.

[assange show trial snowden tweet] 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.

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Your Man in the Public Gallery – The Assange Hearing Day 3

CraigMurray.org.uk
 Craig Murray

 
In yesterday’s proceedings in court, the prosecution adopted arguments so stark and apparently unreasonable I have been fretting on how to write them up in a way that does not seem like caricature or unfair exaggeration on my part. What has been happening in this court has long moved beyond caricature. All I can do is give you my personal assurance that what I recount actually is what happened.

As usual, I shall deal with procedural matters and Julian’s treatment first, before getting in to a clear account of the legal arguments made.

Vanessa Baraitser is under a clear instruction to mimic concern by asking, near the end of every session just before we break anyway, if Julian is feeling well and whether he would like a break. She then routinely ignores his response. Yesterday he replied at some length he could not hear properly in his glass box and could not communicate with his lawyers (at some point yesterday they had started preventing him passing notes to his counsel, which I learn was the background to the aggressive prevention of his shaking Garzon’s hand goodbye).

Baraitser insisted he might only be heard through his counsel, which given he was prevented from instructing them was a bit rich. This being pointed out, we had a ten minute adjournment while Julian and his counsel were allowed to talk down in the cells – presumably where they could be more conveniently bugged yet again.

On return, Edward Fitzgerald made a formal application for Julian to be allowed to sit beside his lawyers in the court. Julian was “a gentle, intellectual man” and not a terrorist. Baraitser replied that releasing Assange from the dock into the body of the court would mean he was released from custody. To achieve that would require an application for bail.

Again, the prosecution counsel James Lewis intervened on the side of the defence to try to make Julian’s treatment less extreme. He was not, he suggested diffidently, quite sure that it was correct that it required bail for Julian to be in the body of the court, or that being in the body of the court accompanied by security officers meant that a prisoner was no longer in custody. Prisoners, even the most dangerous of terrorists, gave evidence from the witness box in the body of the court nest to the lawyers and magistrate. In the High Court prisoners frequently sat with their lawyers in extradition hearings, in extreme cases of violent criminals handcuffed to a security officer.

Baraitser replied that Assange might pose a danger to the public. It was a question of health and safety. How did Fitzgerald and Lewis think that she had the ability to carry out the necessary risk assessment? It would have to be up to Group 4 to decide if this was possible.

Yes, she really did say that. Group 4 would have to decide.

Baraitser started to throw out jargon like a Dalek when it spins out of control. “Risk assessment” and “health and safety” featured a lot. She started to resemble something worse than a Dalek, a particularly stupid local government officer of a very low grade. “No jurisdiction” – “Up to Group 4”. Recovering slightly, she stated firmly that delivery to custody can only mean delivery to the dock of the court, nowhere else in the room. If the defence wanted him in the courtroom where he could hear proceedings better, they could only apply for bail and his release from custody in general. She then peered at both barristers in the hope this would have sat them down, but both were still on their feet.

In his diffident manner (which I confess is growing on me) Lewis said “the prosecution is neutral on this request, of course but, err, I really don’t think that’s right”. He looked at her like a kindly uncle whose favourite niece has just started drinking tequila from the bottle at a family party.

Baraitser concluded the matter by stating that the Defence should submit written arguments by 10am tomorrow on this point, and she would then hold a separate hearing into the question of Julian’s position in the court.

The day had begun with a very angry Magistrate Baraitser addressing the public gallery. Yesterday, she said, a photo had been taken inside the courtroom. It was a criminal offence to take or attempt to take photographs inside the courtroom. Vanessa Baraitser looked at this point very keen to lock someone up. She also seemed in her anger to be making the unfounded assumption that whoever took the photo from the public gallery on Tuesday was still there on Wednesday; I suspect not. Being angry at the public at random must be very stressful for her. I suspect she shouts a lot on trains.

Ms Baraitser is not fond of photography – she appears to be the only public figure in Western Europe with no photo on the internet. Indeed the average proprietor of a rural car wash has left more evidence of their existence and life history on the internet than Vanessa Baraitser. Which is no crime on her part, but I suspect the expunging is not achieved without considerable effort. Somebody suggested to me she might be a hologram, but I think not. Holograms have more empathy.

I was amused by the criminal offence of attempting to take photos in the courtroom. How incompetent would you need to be to attempt to take a photo and fail to do so? And if no photo was taken, how do they prove you were attempting to take one, as opposed to texting your mum? I suppose “attempting to take a photo” is a crime that could catch somebody arriving with a large SLR, tripod and several mounted lighting boxes, but none of those appeared to have made it into the public gallery.

Baraitser did not state whether it was a criminal offence to publish a photograph taken in a courtroom (or indeed to attempt to publish a photograph taken in a courtroom). I suspect it is. Anyway Le Grand Soir has published a translation of my report yesterday, and there you can see a photo of Julian in his bulletproof glass anti-terrorist cage. Not, I hasten to add, taken by me.

We now come to the consideration of yesterday’s legal arguments on the extradition request itself. Fortunately, these are basically fairly simple to summarise, because although we had five hours of legal disquisition, it largely consisted of both sides competing in citing scores of “authorities”, e.g. dead judges, to endorse their point of view, and thus repeating the same points continually with little value from exegesis of the innumerable quotes.

As prefigured yesterday by magistrate Baraitser, the prosecution is arguing that Article 4.1 of the UK/US extradition treaty has no force in law.

The UK and US Governments say that the court enforces domestic law, not international law, and therefore the treaty has no standing. This argument has been made to the court in written form to which I do not have access. But from discussion in court it was plain that the prosecution argue that the Extradition Act of 2003, under which the court is operating, makes no exception for political offences. All previous Extradition Acts had excluded extradition for political offences, so it must be the intention of the sovereign parliament that political offenders can now be extradited.

Opening his argument, Edward Fitzgerald QC argued that the Extradition Act of 2003 alone is not enough to make an actual extradition. The extradition requires two things in place; the general Extradition Act and the Extradition Treaty with the country or countries concerned. “No Treaty, No Extradition” was an unbreakable rule. The Treaty was the very basis of the request. So to say that the extradition was not governed by the terms of the very treaty under which it was made, was to create a legal absurdity and thus an abuse of process. He cited examples of judgements made by the House of Lords and Privy Council where treaty rights were deemed enforceable despite the lack of incorporation into domestic legislation, particularly in order to stop people being extradited to potential execution from British colonies.

Fitzgerald pointed out that while the Extradition Act of 2003 did not contain a bar on extraditions for political offences, it did not state there could not be such a bar in extradition treaties. And the extradition treaty of 2007 was ratified after the 2003 extradition act.

At this stage Baraitser interrupted that it was plain the intention of parliament was that there could be extradition for political offences. Otherwise they would not have removed the bar in previous legislation. Fitzgerald declined to agree, saying the Act did not say extradition for political offences could not be banned by the treaty enabling extradition.

Fitzgerald then continued to say that international jurisprudence had accepted for a century or more that you did not extradite political offenders. No political extradition was in the European Convention on Extradition, the Model United Nations Extradition Treaty and the Interpol Convention on Extradition. It was in every single one of the United States’ extradition treaties with other countries, and had been for over a century, at the insistence of the United States. For both the UK and US Governments to say it did not apply was astonishing and would set a terrible precedent that would endanger dissidents and potential political prisoners from China, Russia and regimes all over the world who had escaped to third countries.

Fitzgerald stated that all major authorities agreed there were two types of political offence. The pure political offence and the relative political offence. A “pure” political offence was defined as treason, espionage or sedition. A “relative” political offence was an act which was normally criminal, like assault or vandalism, conducted with a political motive. Every one of the charges against Assange was a “pure” political offence. All but one were espionage charges, and the computer misuse charge had been compared by the prosecution to breach of the official secrets act to meet the dual criminality test. The overriding accusation that Assange was seeking to harm the political and military interests of the United States was in the very definition of a political offence in all the authorities.

In reply Lewis stated that a treaty could not be binding in English law unless specifically incorporated in English law by Parliament. This was a necessary democratic defence. Treaties were made by the executive which could not make law. This went to the sovereignty of Parliament. Lewis quoted many judgements stating that international treaties signed and ratified by the UK could not be enforced in British courts. “It may come as a surprise to other countries that their treaties with the British government can have no legal force” he joked.

Lewis said there was no abuse of process here and thus no rights were invoked under the European Convention. It was just the normal operation of the law that the treaty provision on no extradition for political offences had no legal standing.

Lewis said that the US government disputes that Assange’s offences are political. In the UK/Australia/US there was a different definition of political offence to the rest of the world. We viewed the “pure” political offences of treason, espionage and sedition as not political offences. Only “relative” political offences – ordinary crimes committed with a political motive – were viewed as political offences in our tradition. In this tradition, the definition of “political” was also limited to supporting a contending political party in a state. Lewis will continue with this argument tomorrow.

That concludes my account of proceedings. I have some important commentary to make on this and will try to do another posting later today. Now rushing to court.

With grateful thanks to those who donated or subscribed to make this reporting possible.

This article is entirely free to reproduce and publish, including in translation, and I very much hope people will do so actively. Truth shall set us free.

Your Man in the Public Gallery – Assange Hearing Day 2[craig]  Craig Murray
CraigMurray.org.uk


This afternoon Julian’s Spanish lawyer, Baltasar Garzon, left court to return to Madrid. On the way out he naturally stopped to shake hands with his client, proffering his fingers through the narrow slit in the bulletproof glass cage. Assange half stood to take his lawyer’s hand. The two security guards in the cage with Assange immediately sprang up, putting hands on Julian and forcing him to sit down, preventing the handshake.

That was not by any means the worst thing today, but it is a striking image of the senseless brute force continually used against a man accused of publishing documents. That a man cannot even shake his lawyer’s hand goodbye is against the entire spirit in which the members of the legal system like to pretend the law is practised. I offer that startling moment as encapsulating yesterday’s events in court.

Day 2 proceedings had started with a statement from Edward Fitzgerald, Assange’s QC, that shook us rudely into life. He stated that yesterday, on the first day of trial, Julian had twice been stripped naked and searched, eleven times been handcuffed, and five times been locked up in different holding cells. On top of this, all of his court documents had been taken from him by the prison authorities, including privileged communications between his lawyers and himself, and he had been left with no ability to prepare to participate in today’s proceedings.

Magistrate Baraitser looked at Fitzgerald and stated, in a voice laced with disdain, that he had raised such matters before and she had always replied that she had no jurisdiction over the prison estate. He should take it up with the prison authorities. Fitzgerald remained on his feet, which drew a very definite scowl from Baraitser, and replied that of course they would do that again, but this repeated behaviour by the prison authorities threatened the ability of the defence to prepare. He added that regardless of jurisdiction, in his experience it was common practice for magistrates and judges to pass on comments and requests to the prison service where the conduct of the trial was affected, and that jails normally listened to magistrates sympathetically.

Baraitser flat-out denied any knowledge of such a practice, and stated that Fitzgerald should present her with written arguments setting out the case law on jurisdiction over prison conditions. This was too much even for prosecution counsel James Lewis, who stood up to say the prosecution would also want Assange to have a fair hearing, and that he could confirm that what the defence were suggesting was normal practice. Even then, Baraitser still refused to intervene with the prison. She stated that if the prison conditions were so bad as to reach the very high bar of making a fair hearing impossible, the defence should bring a motion to dismiss the charges on those grounds. Otherwise they should drop it.

Both prosecution and defence seemed surprised by Baraitser’s claim that she had not heard of what they both referred to as common practice. Lewis may have been genuinely concerned at the shocking description of Assange’s prison treatment yesterday; or he may have just had warning klaxons going off in his head screaming “mistrial”. But the net result is Baraitser will attempt to do nothing to prevent Julian’s physical and mental abuse in jail nor to try to give him the ability to participate in his defence. The only realistic explanation that occurs to me is that Baraitser has been warned off, because this continual mistreatment and confiscation of documents is on senior government authority.

A last small incident for me to recount: having queued again from the early hours, I was at the final queue before the entrance to the public gallery, when the name was called out of Kristin Hrnafsson, editor of Wikileaks, with whom I was talking at the time. Kristin identified himself, and was told by the court official he was barred from the public gallery.

Now I was with Kristin throughout the entire proceedings the previous day, and he had done absolutely nothing amiss – he is rather a quiet gentleman. When he was called for, it was by name and by job description – they were specifically banning the editor of Wikileaks from the trial. Kristin asked why and was told it was a decision of the Court.

At this stage John Shipton, Julian’s father, announced that in this case the family members would all leave too, and they did so, walking out of the building. They and others then started tweeting the news of the family walkout. This appeared to cause some consternation among court officials, and fifteen minutes later Kristin was re-admitted. We still have no idea what lay behind this. Later in the day journalists were being briefed by officials it was simply over queue-jumping, but that seems improbable as he was removed by staff who called him by name and title, rather than had spotted him as a queue-jumper.

None of the above goes to the official matter of the case. All of the above tells you more about the draconian nature of the political show-trial which is taking place than does the charade being enacted in the body of the court. There were moments today when I got drawn in to the court process and achieved the suspension of disbelief you might do in theatre, and began thinking “Wow, this case is going well for Assange”. Then an event such as those recounted above kicks in, a coldness grips your heart, and you recall there is no jury here to be convinced. I simply do not believe that anything said or proved in the courtroom can have an impact on the final verdict of this court.

So to the actual proceedings in the case.

For the defence, Mark Summers QC stated that the USA charges were entirely dependent on three factual accusations of Assange behviour:

1) Assange helped Manning to decode a hash key to access classified material.
Summers stated this was a provably false allegation from the evidence of the Manning court-martial.

2) Assange solicited the material from Manning
Summers stated this was provably wrong from information available to the public

3) Assange knowingly put lives at risk
Summers stated this was provably wrong both from publicly available information and from specific involvement of the US government.

In summary, Summers stated the US government knew that the allegations being made were false as to fact, and they were demonstrably made in bad faith. This was therefore an abuse of process which should lead to dismissal of the extradition request. He described the above three counts as “rubbish, rubbish and rubbish”.

Summers then walked through the facts of the case. He said the charges from the USA divide the materials leaked by Manning to Wikileaks into three categories:

a) Diplomatic Cables
b) Guantanamo detainee assessment briefs
c) Iraq War rules of engagement
d) Afghan and Iraqi war logs

Summers then methodically went through a), b), c) and d) relating each in turn to alleged behaviours 1), 2) and 3), making twelve counts of explanation and exposition in all. This comprehensive account took some four hours and I shall not attempt to capture it here. I will rather give highlights, but will relate occasionally to the alleged behaviour number and/or the alleged materials letter. I hope you follow that – it took me some time to do so!

On 1) Summers at great length demonstrated conclusively that Manning had access to each material a) b) c) d) provided to Wikileaks without needing any code from Assange, and had that access before ever contacting Assange. Nor had Manning needed a code to conceal her identity as the prosecution alleged – the database for intelligence analysts Manning could access – as could thousands of others – did not require a username or password to access it from a work military computer. Summers quoted testimony of several officers from Manning’s court-martial to confirm this. Nor would breaking the systems admin code on the system give Manning access to any additional classified databases. Summers quoted evidence from the Manning court-martial, where this had been accepted, that the reason Manning wanted to get in to systems admin was to allow soldiers to put their video-games and movies on their government laptops, which in fact happened frequently.

Magistrate Baraitser twice made major interruptions. She observed that if Chelsea Manning did not know she could not be traced as the user who downloaded the databases, she might have sought Assange’s assistance to crack a code to conceal her identity from ignorance she did not need to do that, and to assist would still be an offence by Assange.

Summers pointed out that Manning knew that she did not need a username and password, because she actually accessed all the materials without one. Baraitser replied that this did not constitute proof she knew she could not be traced. Summers said in logic it made no sense to argue that she was seeking a code to conceal her user ID and password, where there was no user ID and password. Baraitser replied again he could not prove that. At this point Summers became somewhat testy and short with Baraitser, and took her through the court martial evidence again. Of which more…

Baraitser also made the point that even if Assange were helping Manning to crack an admin code, even if it did not enable Manning to access any more databases, that still was unauthorised use and would constitute the crime of aiding and abetting computer misuse, even if for an innocent purpose.

After a brief break, Baraitser came back with a real zinger. She told Summers that he had presented the findings of the US court martial of Chelsea Manning as fact. But she did not agree that her court had to treat evidence at a US court martial, even agreed or uncontested evidence or prosecution evidence, as fact. Summers replied that agreed evidence or prosecution evidence at the US court martial clearly was agreed by the US government as fact, and what was at issue at the moment was whether the US government was charging contrary to the facts it knew. Baraitser said she would return to her point once witnesses were heard.

Baraitser was now making no attempt to conceal a hostility to the defence argument, and seemed irritated they had the temerity to make it. This burst out when discussing c), the Iraq war rules of engagement. Summers argued that these had not been solicited from Manning, but had rather been provided by Manning in an accompanying file along with the Collateral Murder video that showed the murder of Reuters journalists and children. Manning’s purpose, as she stated at her court martial, was to show that the Collateral Murder actions breached the rules of engagement, even though the Department of Defense claimed otherwise. Summers stated that by not including this context, the US extradition request was deliberately misleading as it did not even mention the Collateral Murder video at all.

At this point Baraitser could not conceal her contempt. Try to imagine Lady Bracknell saying “A Handbag” or “the Brighton line”, or if your education didn’t run that way try to imagine Pritti Patel spotting a disabled immigrant. This is a literal quote:

“Are you suggesting, Mr Summers, that the authorities, the Government, should have to provide context for its charges?”

An unfazed Summers replied in the affirmative and then went on to show where the Supreme Court had said so in other extradition cases. Baraitser was showing utter confusion that anybody could claim a significant distinction between the Government and God.

The bulk of Summers’ argument went to refuting behaviour 3), putting lives at risk. This was only claimed in relation to materials a) and d). Summers described at great length the efforts of Wikileaks with media partners over more than a year to set up a massive redaction campaign on the cables. He explained that the unredacted cables only became available after Luke Harding and David Leigh of the Guardian published the password to the cache as the heading to Chapter XI of their book Wikileaks, published in February 2011.

Nobody had put 2 and 2 together on this password until the German publication Der Freitag had done so and announced it had the unredacted cables in August 2011. Summers then gave the most powerful arguments of the day.

The US government had been actively participating in the redaction exercise on the cables. They therefore knew the allegations of reckless publication to be untrue.

Once Der Freitag announced they had the unredacted materials, Julian Assange and Sara Harrison instantly telephoned the White House, State Department and US Embassy to warn them named sources may be put at risk. Summers read from the transcripts of telephone conversations as Assange and Harrison attempted to convince US officials of the urgency of enabling source protection procedures – and expressed their bafflement as officials stonewalled them. This evidence utterly undermined the US government’s case and proved bad faith in omitting extremely relevant fact. It was a very striking moment.

With relation to the same behaviour 3) on materials d), Summers showed that the Manning court martial had accepted these materials contained no endangered source names, but showed that Wikileaks had activated a redaction exercise anyway as a “belt and braces” approach.

There was much more from the defence. For the prosecution, James Lewis indicated he would reply in depth later in proceedings, but wished to state that the prosecution does not accept the court martial evidence as fact, and particularly does not accept any of the “self-serving” testimony of Chelsea Manning, whom he portrayed as a convicted criminal falsely claiming noble motives. The prosecution generally rejected any notion that this court should consider the truth or otherwise of any of the facts; those could only be decided at trial in the USA.

Then, to wrap up proceedings, Baraitser dropped a massive bombshell. She stated that although Article 4.1 of the US/UK Extradition Treaty forbade political extraditions, this was only in the Treaty. That exemption does not appear in the UK Extradition Act. On the face of it therefore political extradition is not illegal in the UK, as the Treaty has no legal force on the Court. She invited the defence to address this argument in the morning.
It is now 06.35am and I am late to start queuing…
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