September 17, 2020
Nothing new to report in pre-hearing news including the fact that human rights organizations and NGOs are still being denied access to the extradition hearing in an effort to keep a lid on the U.K. denying Assange any semblance of due process or justice in these court proceedings. And even though this isn’t pre-hearing news but rather post-hearing news I thought I’d report here that according journalist Muhamed Elmaazi, “Assange could be heard banging the walls of his prison transportation vehicle this afternoon, as he was taken back to Belmarsh prison, by protesters cheering outside the court & whilst one individual played the Australian national anthem on his xylophone.”
And my daily reminder: Every day Belmarsh prison puts Assange through a five-hour ordeal just to take him to court which includes being handcuffed, strip-searched, and a three-hour round-trip transport. 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 #9: John Sloboda
The first witness up today was Professor John Sloboda, the co-founder of IraqBodyCount.org which is an organization (and website) that “maintains the world’s largest public database of violent civilian deaths since the 2003 invasion, as well as [a] separate running total which includes combatants.”
- The organization is recognized as an “authority in civilian deaths by governments and [other] organizations”
- It was used for the official UK enquiry into the war
- According to Sloboda, tracking these deaths gives “dignity to the dead”
- Sloboda: It’s a “fundamental human need to know how one’s loved one died.”
Working With WikiLeaks and Assange
According to Sloboda, they initially relied on media reports to track civilian deaths but after WikiLeaks published the Iraq War logs it gave them “far more detail” than they had before including an additional 15,000 civilians casualties that were previously unknown. Sloboda eventually approached Assange about working together:
- Assange was “absolutely welcoming” and they created a media partnership
- Sloboda worked with WikiLeaks to “analyse the logs and cross-check” with his own database
- Because of WikiLeaks, around 40,000 news reports have been published on the war logs adding “considerable weight to the Iraqi casualties in public eye”
The Redaction Process
- Assange’s “aim was a very stringent redaction of the logs”
- It wasn’t possible to do manually (it would have taken “an army of people”)
- Software was designed that redacted everything that wasn’t in an English dictionary.
- They also redacted occupations from the documents.
- Sloboda admits that risk minimization led to over-redactions and that “information had to be put back in.”
- The process was “painstaking” and they were pressured by media outlets to go faster
- Redaction process caused delays in publications
- Assange insisted that the redactions be completed before publication
Source Protection and “Jigsaw Identification”
Joel Smith and Claire Dobbin, both for the US, were up to bat today (probably because James Lewis keeps getting pummeled by defense witnesses) with Smith up first who asked Sloboda if he was vetted before he was given access to classified documents in what was surely another attempt to further U.S. arguments that Assange/WikiLeaks were/are reckless Slobada didn’t know if he had or not.
As for “jigsaw identification,” any decent researcher is probably familiar with this which was described today as “piecing back info in order to establish identity.” Sloboda pointed out that jigsaw identification was one of the reasons why occupations, not just names, were redacted the documents.
- Smith argued that the Iraqi War Logs were over-redacted because of mistakes made in the Afghan War Logs (Sloboda did not work on Afghan War Logs)
- According to @DefenseAssange, “[The] prosecution only charged Assange with publishing the unredacted cables, so needs to argue that he didn’t care about sources named” (see Frontline Interview below)
The prosecution brought up comments that Assange made about protecting sources during a 2010 Frontline Club program called “The data revolution- How WikiLeaks is Changing Journalism,” although his remarks in the video don’t entirely match everything the prosecution said he said but maybe I missed it (video already at mark):
However, on May 25, 2011, WikiLeaks also published on its website a transcript of a “behind the scenes, interview tape between Julian Assange & PBS Frontline’s Martin Smith” (recorded on April 4, 2011) which seems to be closer to what the prosecution is trying to argue: Assange didn’t published unredacted names out of editorial sloppiness, rather, he did it deliberately.
As for Sloboda, he denied any knowledge of unredacted names in the Iraq War Logs. “This is the first I have heard of this,” he told the prosecution. But at the end of the day, all of this goes back to what I said yesterday:
So imagine if every government in the world took up this torch and started extraditing journalists, publishers, or any media worker for that matter who revealed spies, government sources, or national secrets and criminality? Journalists from around the globe being extradited to Saudi Arabia, Egypt, China, or Eritrea…every media worker silenced from reporting on these things not just with regards to the United States but with everyone. Have you ever heard of anything so absurd?
Of course there were tech issues today. There’s tech issues everyday because #UKIsARagingDumpsterFire.
The tech guys in the Crown Prosecution Service: pic.twitter.com/9ykFxWYiOk— Juan Passarelli (@jlpassarelli) September 17, 2020
Witness #10: Carey Shenkman
Never ending tech issues aside, we eventually heard from Carey Shenkman, the second witness of the day and a First Amendment and human rights lawyer who is currently in the process of writing an extensive historical analysis of the Espionage Act.
Last Minutes Bundles
And in case you missed it in the last eight court days, the U.S. government has been dumping bundles of documents (hundreds) on defense witnesses anywhere from 24-48 hours in advance of their testimony. However, today they set a new record by sending Shenkman a bundle of documents at 3:00 a.m. U.S. time or 9:00 a.m. London time. The hearing started at 10:00 a.m.! If the U.S. government’s case is so iron-clad why are they trying to sabotage witness testimony?
Under direct, Shenkman discussed how the U.S. Espionage Act was “born during ‘one of the most oppressive periods in US history,’ during WWI” and how it’s been used as a tool to censor and target dissidents. Shenkman:
- The Espionage Act is extraordinarily broad
- It’s one of the “most contentious laws” in the U.S.
- The Act encompasses national defense information which is actually broader than classified information
- This allows for the government to prosecute for non-classified information
- The Act could apply to someone in the UK “retweeting something the US government considers classified”
- It can also “make a criminal” out of anyone who reads national security information
Prosecuting a Journalist Under the Espionage Act
Shenkman pointed out that no journalist has ever been successfully prosecuted under the Espionage Act and that out of eleven cases in which the press was investigated for publishing classified information, never once was there an indictment. As to why this was the case, Shenkman responded that it was because of First Amendment concerns, ferocious opposition from the media, and the U.S. Department of Justice’s inability to “draw a line” between one individual/outlet vs. another who publishes classified information. Even SCOTUS couldn’t stop The New York Times from publishing.
The witness confirms that no publisher in the US has ever been convicted under the espionage act.— James Doleman (@jamesdoleman) September 17, 2020
Judge intervenes to remind the witness she has his statement and he does not have to repeat every detail that is in it.#Assange
The decision in US v. Morison was brought up during testimony in which Judge Harvie Wilkinson said “press organizations . . . are not being, and probably could not be, prosecuted under the espionage statute.” He also warned about the “staggering breadth” of the Espionage Act. For those that are interested:
“In a case involving violation of the Espionage Act, Samuel Loring Morison was prosecuted for sending top secret intelligence photos of a Russian ship to Jane’s Fighting Ships, which then published them. Although he claimed protection under the First Amendment, the 4th U.S. Circuit Court disagreed and said that the law was a ‘criminal statute covering the theft of government property’ and upheld his conviction.”
Wilkinson was one of the concurring judges in the case who also said that because “‘we have placed our faith in knowledge, not in ignorance,’ we must be able to rely upon the press.” SCOTUS refused to hear Morison’s case but he was later pardoned by President Bill Clinton.
Times Are A-Changin‘
- The political and media climate in 2010 encouraged leaking and journalists thought they were protected
- In 2013, things changed; leakers started getting prosecuted under the Espionage Act
- “Classified material is a daily routine in the US press, and is often encouraged by officials leaking it”
The Nation and Michael Ratner
Okay, there was this whole exchange about an article from The Nation entitled, “It’s Been Two Weeks Since a UN Panel Declared That Julian Assange Should Be Freed. Why Is He Still Detained?” co-authored by Shenkman and Michael Ratner, along with background information on the work Shenkman did for Ratner but honestly, I couldn’t follow the testimony. For more information you might try Bridges For Media Freedom (here), Richard Medhurst (here), or AssangeDefense.org’s (here) daily summaries.
Obama vs. Trump
So once again the prosecution got into the whole Obama vs. Trump political case argument. They brought up this 2015 Guardian article “US Government Still Hunting WikiLeaks as Obama Targets Whistleblowers” that reported:
“WikiLeaks’s lawyer, Michael Ratner, said the disclosure was significant because, coming from such a high court, it left no doubt about the US government’s intentions.”
“’We are talking about a serious, multi-subject long-term investigation of WikiLeaks and its people,’ Ratner said. ‘This confirms in spades that the US authorities are coming after WikiLeaks and want to close it down.’”
According to assangedefense.org:
…this is a key factor in the extradition proceedings, because the US-UK Extradition Treaty bars extradition for ‘political offenses”, and a clear decision not to prosecute by one administration followed by a 180° shift to a decision to prosecute by the following administration would appear plainly politicized.”
Or as Richard Medhurst put it:
“Dobbin [prosecutor] is trying to use a 2015 quote in the Guardian from Ratner, Shenkman’s old boss, that Obama admin hunted @WikiLeaks to counter the WaPo article from 2013 saying DOJ no longer after #Assange. This to try and legitimize the trial as having legal basis and being apolitical.”
Of course Shenkman’s response was that he couldn’t speak for Michael Ratner—nor can anyone else since he passed away in 2015—as the prosecution tried to determine what Shenkman’s own opinions were at the time. With that said, I felt that this was the most success the U.K. prosecution for the U.S. has had since the start of this hearing meaning that for anyone to say that WikiLeaks, Assange, or any of his attorneys didn’t believe (or at least say publicly) that the U.S. government was coming after Assange during both the Obama and Trump administration would be absurd.
They and their support community have spent ten years using that argument to garner support and to point out the dangers of a government prosecuting a publisher/journalist for doing journalism. I’m not faulting them for that. On the contrary, these are legitimate concerns especially when coupled with things that have been said about Assange over the years by political figures i.e. “let’s drone him,” other statements to that effect, and demands that WikiLeaks be shut down.
The point being (and I am no legal expert) is that I’m wondering if witnesses overplayed the Washington Post article making it too easy for the prosecution to pull out articles like The Guardian which explicitly counter that argument—and there’s more they can dig up. Also, don’t be surprised if the U.S. government starts arguing that WikiLeaks didn’t exactly find Trump to be a threat due to Trump’s “I love WikiLeaks” campaign op, social media, comments in interviews, and what appeared to be a friendly (early) stance towards the Trump administration. Of course none of this changes the fact that Obama chose not to prosecute while Trump did. And frankly, if the prosecution really wants to look at the timeline on charging Assange, once again it appears that it wasn’t until after Vault 7 that the Trump administration made a strident effort to do just that.
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):
A head’s up that @SMaurizi will no longer be covering the hearing (for now). Yesterday, the UK prosecution for the United States took issue with her doing so ⟶ “I am afraid today and in the coming days I won’t be able to follow and cover the Julian #Assange extradition hearing because the lawyers acting for the US government asked I won’t do it as I am a witness of fact in the Julian #Assange extradition hearing.” – Stefania Maurizi
Kristinn Hrafnsson via Juan Passarelli HERE
Craig Murray via Mohamed Elmaazi/Sputnik HERE
Craig Murray via Juan Passarelli HERE
Rebecca Vincent, Reporters Without Borders via Mohamed Elmaazi/Sputnik HERE
John Shipton via Juan Passarelli HERE
Richard Medhurst’s Day 8 Updates (video) HERE
“At Assange’s Extradition Hearing, Troubled Tech Takes Center Stage.” Megan Specia via The New York Times
“Iraq War Logs: Context.” IraqBodyCount.org (via @DefenseAssange)
“Iraq War Logs: The Truth is in the Details.” IraqBodyCount.org (via @DefenseAssange)
Iraq War Logs: What the Numbers Reveal.” IraqBodyCount.org (via @DefenseAssange)
“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
- 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
- Day 7: John Goetz, Daniel Ellsberg
- Day 8: John Sloboda, Carey Shenkman
- 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.)
Defense Opening Arguments HERE
Prosecution Skeleton Arguments (photos via @MacWBishop) 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)
Defense Witness #7 Statement: John Goetz HERE
Defense Witness #8 Statement: Daniel Ellsberg (not released yet)
Defense Witness #9 Statement: John Sloboda (not released yet)
Defense Witness #10: Carey Shenkman (not released yet)
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