Assange Extradition Hearing 2020: Day Six

September 15, 2020

Pre-Hearing Details

Nothing unusual to report today before the hearing got underway other than the fact that organizations and NGOs are still being denied access to the Assange extradition hearing. Yesterday, Rebecca Vincent from Reporters Without Borders reported that they were still being denied access to the court’s video link and journalist Juan Passarelli asked, “Is this the [Crown Prosecution Service] version of open justice?” Today it was reported that MPs are also denied access and @Bridges4Media put out an entire Twitter thread about it which you can find HERE.

And my daily reminder: Belmarsh prison puts Assange through a five-hour ordeal including being handcuffed and strip-searched just to take him to court. I’m wondering how many journalists and publishers out there that refuse to speak out on his behalf against this extradition request would feel if the U.S. arrested them tomorrow and put them through this punishment for simply practicing journalism. Especially those who used WikiLeaks documents in the past to bolster their work, image, or publications.

Witness #5: Eric Lewis (continued)

See HERE for Eric Lewis’ previous testimony.

After direct, the prosecution for the U.S. government, James Lewis QC, started things out by taking Eric Lewis through a European court decision stating that the “threat of solitary in US jails is not a reason to block extradition,” adding that solitary confinement “doesn’t necessarily increase likelihood of death.” He also tried to argue that the quality of life in the Bureau of Prisons (BOP) has improved due to previous litigation which I think most of us would disagree with including the judge in the Lauri Love case. The lawsuit that James Lewis was referring to is the 2012 case Cunningham v. Federal Bureau Prisons which was filed by inmates at ADX Florence for violating “BOP policy and the Eighth Amendment by failing to properly diagnose and treat prisoners at ADX with serious mental illness” (Univ. of Michigan Law School).

Solitary Confinement and Prison Conditions

Eric Lewis testified that mental health is an integral issue with regards to solitary confinement and that 2/3rds of suicides and self-harm take place in segregated housing. Stunningly, he also noted that the BOP couldn’t even establish how many inmates were in solitary confinement. More from E. Lewis:

  • According to the U.N.’s Mandela rules: “Rule 44 For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact”
  • Mental health assistance touted by the prosecution is not offered to those under SAMs
  • “The prosecution is lying about accommodations being made.” – Eric Lewis via Richard Medhurst
  • The prosecution pointed out that the prison in Alexandria, VA has zero cases of Covid but Eric Lewis noted that if Assange was moved, 12% of the U.S. prison population has Covid
  • Excellent thread about the conditions at both Alexandria and ADX Florence prison HERE

Sentencing Assange

Prosecution for the United States sure did like to brag a lot today about how amazing the U.S. is about sentencing leakers and whistleblowers when taking Assange’s 175 years into account:

  • Jeffrey Sterling faced 130 years but only got 42 months
  • Terry Albury only got 49 months
  • Manning got 35 years but the government wanted 60 years
  • The longest sentence ever imposed on leaking was 63 months

Okay first, Assange isn’t a leaker or whistleblower, he’s a publisher. Second, the prosecutor’s arguments really just prove how much the U.S. government likes to terrorize people into plea bargains. Here’s Sterling’s response today to the U.K. prosecutor using him to downplay what they’ll do to Assange:

Under direct, Eric Lewis reviewed sentencing guidelines and how the superseding indictment against Assange (filed approx. six weeks before the start of the September hearing) has upped the ante for the publisher. For instance, in section C. of the indictment entitled, “Teenager, Manning, and NATO Country-1,” it discusses how Assange met a teenager (Siggi Thordarson) in a NATO country (Iceland) and how that teen allegedly gave him stolen bank documents.

So listen, I’m just going to say it even though no one wants it said: I have no idea what Assange was thinking bringing Thordarson on board. Like legit, no idea. With that said, Assange is now facing the consequences of this teenager (later prosecuted for pedophilia, theft, and, I think, impersonation) turning FBI snitch so here we are. The bottom line in this instance is that if Thordarson—a minor—was involved in theft/hacking and disclosing sources this would increase Assange’s sentence.

National Security vs. the U.S. Constitution

  • Eric Lewis previously told the court that no publisher has ever been successfully prosecuted for publishing classified info, adding today that the U.S. Constitution “supersedes all else.”
  • Prosecution stated that the court has to weigh national interests vs. 1A protections
  • Prosecution stated that third parties can indeed be prosecuted for aiding in theft/procurement of classified information (again, unless this is about some Iceland shiz, Chelsea Manning already had clearance)

James Lewis QC’s questions and statements may indicate that the Trump administration is planning to head down the “national security trumps journalism” path. You know, they don’t like that story out of Germany because it put *cough* *cough* U.S. national security at risk so let’s just indict, extradite, and prosecute the journalist. And maybe the publisher. This entire case reeks of the typical fascist move the Trump administration would happily take, especially this. And if Mr. U.K. prosecutor/U.S. bootlicker is so concerned about the “balance” between 1A and national security, maybe the U.S. government should stop doing bad things like war crimes, lying about those bad things, and being so unbelievably incompetent.

Obama vs. Trump (again)

Okay, here’s the gist of this: No, Eric Lewis doesn’t have first-hand knowledge of the Obama administration’s deliberations regarding prosecuting Assange. However, he does feel that under the Trump administration there’s been pressure to indict, these are top-down decisions, the DOJ doesn’t follow guidelines, and that the department is highly politicized. As Richard Medhurst put it, “It’s a political witch hunt, prosecutors were specifically directed to go after Assange.”

Under re-direct, we essentially heard (once again) how the Obama administration really didn’t differ from the Trump administration re: Assange because the U.K. prosecution is so thirsty to make this argument happen for Trump. According to witness Eric Lewis:

  • Trump wants to distract from the DNC leaks (i.e. “I love WikiLeaks” campaign trail message but I disagree, I think this has always been about Vault 7)
  • A Washington Post article stated that the (Obama) DOJ had pretty much “abandoned prosecution of Assange”
  • DOJ spokesperson Matthew Miller (under Obama) said in the same WP article that, “The problem the department has always had in investigating Julian #Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists
  • Eric Holder (under Obama) said that the U.S. wouldn’t prosecute publishers who were not working for a foreign state or power (“non-state intelligence agency,” right, Pompeo?)
  • Eric Lewis also pointed out that Trump once said “I can do what I want with the Justice department” and that prosecutorial discretion “rests with Trump.”

Remember this?

Witness #6: Thomas Durkin

The second witness to testify today was Thomas Durkin, a criminal defense attorney and former DA who has practiced law for 47 years in a number of states and in the federal appeals courts. According to journalist Richard Medhurst, Durkin teaches National Security Law at the Loyola University Chicago.

Classified Information

  • Classified information makes it impossible for an attorney to discuss certain information with their own client
  • Sure, the government could grant Assange security clearance (but that’ll be a cold day in hell)
  • The prosecution disputed there would be a large amount of “classified documents” in the case and that the material involved in the indictment was published 10 years ago so Assange should be familiar with it/won’t have a problem reviewing it

Sentencing

An important thing to note about teh U.S. justice system is that the judge can take into account for sentencing “relevant conduct” that is either completely unrelated to the charges or that Assange was acquitted of. It’s called “aggravation” and can lead to a harsher sentence. As Medhurst mentioned, the conduct that was added in the superseding indictment i.e. working with hackers, is the same conduct that Judge Vanessa Baraitser refused to throw out the first day that the hearing resumed in September.

“Keep in mind, US submitted indictment past deadline and Julian was only given new warrant to look at the day of hearing. – Richard Medhurst

Other tidbits from Durkin’s testimony:

  • He believes it’s likely that Assange will be handed a life sentence if he’s extradited and successfully prosecuted
  • He noted Manning’s sentence of 35 years and that the U.S. government considers Assange “to be a substantially greater threat.”

Plea Deals

This is really all you need to know: The U.S. justice system is such an overburdened train wreck that if every defendant in the country demanded a trial it would collapse within a week, if not sooner. Hence, there is a culture within the system of prosecutors terrorizing defendants with long sentences to coerce them into taking a plea in the hopes of getting a lighter sentence. However, prosecutors don’t just hand out plea bargains for free. In Assange’s case, he would likely have to fully cooperate with the U.S. government and give up all of his sources.

Grand Juries

Durkin:

  • They will not save you from a politically-motivated prosecution
  • A decision to not indict is virtually unheard of
  • Assange would have no right to appeal
  • Not sure if this was said today, but for the record only the prosecution is allowed to present evidence to a grand jury…in secret, no less

Political Prosecution

Again, this is the Obama vs. Trump debate. Durkin feels that that Obama administration made a deliberate decision not to prosecute Assange and that U.S. Prosector Gordon Kromberg’s claim that there was always an ongoing investigation (through two administrations) did not seem credible. He also noted that it wasn’t a grand jury that indicted Assange, it was the Department of Justice. Durkin also brought up the same examples that Eric Lewis used earlier (Obama vs. Trump):

  • The Washington Post article
  • Mattthew Miller’s statement
  • Two Trump administration prosecutors disagreeing with indicting Assange

Twitter Sources

The Twitter users I followed today that I want to give a special thanks to for covering the hearing and that were used as my source material include (these guys and gals do the heavy lifting so we don’t have to): 

Feature photo: Andy Rain | EPA

Interviews

  • Vaughn Smith via Mohamed Elmaazi HERE
  • Kristinn Hrafnsson via Mohamed Elmaazi HERE
  • Kristinn Hraffnsson response to UK Foreign Secretary via Juan Passarelli HERE
  • John Shipton on prison conditions via Mohamed Elmaazi HERE
  • Cristina Godoy-Navarrete via DEACampaign HERE

Articles

Bridges for Media Freedom Daily Court Summary: A.M. SUMMARY and P.M. SUMMARY

“Parliamentarians Demand ‘Proper Public Access’ to Assange Hearings.” Bridges For Media Freedom (video)

“Extradition to a US jail ‘unsafe’ for Julian Assange.” David Brown via The Times

Of Interest

“How Did We Get Here? The Threat of Fascism in U.S.” Davey Heller via ClassConscious.org

“The Darkest Corner: Special Administrative Measures and Extreme Isolation in the Federal Bureau of Prisons.” Center For Constitutional Rights

Conditions of Prison in Alexandria, VA via The Justice Campaign (Twitter thread)

“Lockdown Life is Better in Virtual Reality” Madeleine Spence, The Times

“Wikileaks – USA against Julian Assange (english subtitles)” via ardmediathek.de

Witnesses

  • Day 1 and 2: Mark Feldstein
  • Day 2: Clive Stafford-Smith
  • Day 3: Paul Rogers, Trevor Timm
  • Day 4: Eric Lewis (cancelled)
  • Day 5: Eric Lewis
  • Day 6: Eric Lewis (continued), Thomas Durkin

Attorneys

  • Edward Fitzgerald QC (Assange defense)
  • Mark Summers QC (Assange defense)
  • Jennifer Robinson (Assange defense)
  • Gareth Peirce (Assange defense)
  • Florence Iveson (Assange defense)
  • James Lewis QC (prosecutor for the U.S.)
  • Joel Smith (prosecutor for the U.S.)
  • Claire Dobbin (prosecutor for the U.S.)

Documents

Defense Opening Arguments HERE

Defense Skeleton Arguments HERE and HERE

Prosecution Skeleton Arguments (photos via @MacWBishop) HERE

Defense Witness #1 Statement: Professor Mark Feldstein HERE and HERE

Defense Witness #2 Statement: Clive Stafford-Smith HERE

Defense Witness #3 Statement: Paul Rogers HERE

Defense Witness #4 Statement: Trevor Timm HERE

Defense Witness #5 Statement: Eric Lewis (not released yet)

Defense Witness #6 Statement: Thomas Durkin (not released yet)

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