24-27/02/2020 – USA v Julian Assange: Extradition Hearing Day 1 to 4

The Courage Foundation live tweeted from the court’s public gallery throughout the court hearing and provided excellent summaries for each day’s proceedings. Please read these together with additional reliable reporting below for a good roundup of what happened at the hearing.

Additional Reporting:

Craig Murray: Your Man in the public gallery Day-1, Day-2, Day-3, Day-4

Thomas Scripps and Laura Tiernan:

Persecuted journalist Assange handcuffed, stripped naked on first day of extradition trial
Julian Assange condemns court for preventing him from speaking to lawyers
Judge rules Assange cannot sit with lawyers during extradition hearing

Kevin Kosztola:

Assange’s Defence Details CIA-Backed Espionage operation, Trump’s Politicization of Justice Department (24th of February)
Assange Extradition Hearing: Chelsea Manning’s Grand Jury Resistance a Major Hurdle for Prosecutors (25th of February)
Prosecution: US-UK Treaty does not apply to Assange Extradition (26th of February)
Judge: Julian Assange must Remain in Glass Box During Extradition Proceedings (27th of February)
Round The Empire Insights from Assange Extradition Hearing in London (Podcast)

Mohamed ElMaazi:

Assange Hearing: Prosecution Claims WikiLeaks Publisher Isn’t Wanted for Revealing War Crimes
WikiLeaks Editor-in-Chief Hrafnsson Briefly Banned From Assange Hearings With No Explanation
Assange Hearing: Trump Was “Aware” and “Approved” of Pardon Offer, Defence Team Says 
Assange Hearing: Defence Blasts ‘Politically Motivated’ Charges as ‘Abuse of Process’
Assange Hearing: Manning Sought Help Accessing Video Game Database, Not Hacking US Government System
Assange Hearing: Judge Rejects Plea to Intervene Against Mistreatment of Assange by Prison Officials
Extradition Hearing: Assange and WikiLeaks Redacted Documents and Protected Sources – Defence Team
Assange Hearing: US Government Claims it Doesn’t Matter if Alleged Offences Are ‘Political’
‘Outrage’ Over Judge’s Refusal To Allow Assange to Sit With His Lawyers During Extradition Hearings

Taylor Hudak and Tareq Haddad

Podcasts Day-1, Day-2, Day-3.1, and Day-3.2, Day-4.

Interview outside Belmarsh Magistrate Court with Stefania Maurizi

USA v Julian Assange: Extradition Hearing Day 1

Julian Assange’s full extradition hearing began today at Woolwich Crown Court at Belmarsh with the prosecution pleading for the media to stop characterizing the US effort as a politicized war on journalism, and it ended with Assange’s defense providing a comprehensive summary of the many reasons that journalists, human rights activists, and defenders of a free press have been sounding the alarm.

Assange, appearing thin in a grey suit, sat alone behind glass behind both legal benches, taking notes. Early in the proceedings, he looked up to the public gallery and raised a fist.

James Lewis QC, arguing for the Crown Prosecutorial Service, which acts on behalf of the United States in its extradition request, explicitly asked journalists covering the case not to report on it as a matter of free speech or the right to publish. Lewis worked continuously to narrow both the defense’s arguments and the judge’s focus, portraying the indictment as solely a matter of exposing informants in the Iraq and Afghanistan war logs and the State Department cables.

In the afternoon, defense lawyer Edward Fitzgerald QC laid out in detail the ways in which the extradition proceedings constitute an abuse of process, because they have been brought for ulterior political purposes, as an attack on freedom of speech, and fundamentally misrepresent the facts in order to extradite Assange to the US, where he faces torture, unusual and degrading treatment.

CPS Makes Dramatic Claims, Without Evidence

The CPS made dramatic claims of damage to the United States’ interests around the world, claiming that the unredacted publications put local informants at risk. But when it came time to detail that damage, the prosecutor ultimately had to admit that the US government has not been able to prove any deaths have resulted from WikiLeaks’ publications.

The prosecution then spent the rest of the morning recounting each charge, repeatedly claiming that Assange “aided and abetted” Chelsea Manning’s procurement of classified cables for the purposes of publishing. In a rehash of many of the arguments litigated in Manning’s 2013 military court-martial, the prosecution claimed that each stage of the publication — from WikiLeaks’ 2009 Most Wanted List to Jabber chats with Manning to obtaining and disseminating the documents themselves — are part of a conspiracy between Manning and Assange to defraud and damage the United States.

CPS’ Arguments Would Put Newspapers At Risk

The judge stopped the prosecution’s argument to ask if the act of “obtaining” the documents constitutes one of the conducts charged, does it follow that any person solely “obtaining” these kinds of documents — without the “aiding and abetting” elements — would be subject to prosecution as well? In other words, if a newspaper simply obtains documents without working with the source to do so, could that publication be unlawful?

Taken aback by the question, which throws light on the grave implications that this extradition would have on other journalists, the prosecutor took a moment to think and confer before finally saying: Yes, it would.

Furthermore, the prosecution argued that the defense should not be allowed to make arguments as to whether Assange is a journalist — because, he argued, the only issue should be whether the crimes the US alleges would constitute crimes in the UK as well — and claimed that he didn’t expect the defense would dispute that the crimes alleged would constitute an extradition offense.

Fitzgerald rose to say actually, yes, that is in dispute —because the UK law (the Official Secrets Act) that corresponds to the US’s Espionage Act is in contravention of Article 10 of the European Convention on Human Rights, which provides the right to freedom of expression and information.

Assange’s Defense: This is an Abuse of Process

After lunch, Edward Fitzgerald provided a chronology of events to explain why extradition proceedings constitute an abuse of process, and why the indictment for which Assange’s extradition has been requested constitute a “political offense” (the US-UK Extradition Treaty of 2003 contains an exception that bars extradition for political offenses).

Fitzgerald reminded the court that the alleged offenses took place in 2010, a full decade ago, and that the Obama Administration’s Department of Justice made the explicit decision not to prosecute Assange in 2013. Four years later, when the indictment was initiated in 2017, no new evidence or testimony had come forward, and no facts of the case had been altered — the only thing that changed was that Trump had taken office.

“The principled and consistent stand taken under the Obama administration was reversed under the present Trump administration from early 2017 onwards. And the prosecution initiated later in December 2017 was the result of President Trump’s effective declaration of war on leakers and journalists.”

Trump Wants Assange’s “Head on a Pike”

Fitzgerald gave a preview of the witnesses the defense will call to give context for the political milieu in which the indictment was brought:

“You will see from the expert reports that President Trump has ‘repeatedly referred to the press as ‘the opposition party’ and the ‘enemy of the people’’ He has ‘denounced the news media as a whole as ‘sick’, ‘dishonest’, ‘crazed’, ‘unpatriotic’, ‘unhinged’ and ‘totally corrupt’ and attacked them as ‘purveyors of ‘fake news’.”

Trump wanted to make an example of Assange, as he represented everything about the free investigative press that the president detests:

“So it is no surprise that in February 2017, President Trump met with FBI Director James Comey and agreed that they should be ‘putting a head on a pike’ as a message to journalists over leaks and ‘putting journalists in jail’. As [defense witness] Professor Feldstein shows, President Trump then instructed his attorney general to ‘investigate ‘criminal leaks’ of ‘fake news’ reports that had embarrassed the White House’.”

It was against that background that President Trump and his administration then decided to make an example of Julian Assange. He was the obvious symbol of all that Trump condemned. He had brought American war crimes to the attention of the world. Again Professor Feldstein puts it in this way: ‘On a worldwide scale [he disclosed] significant governmental duplicity, corruption, and abuse of power that had previously been hidden from the public… [he] exposed outrageous, even murderous wrongdoing, including war crimes, torture and atrocities on civilians.’”

While the CPS works to portray the prosecution as normal and in accordance with a history of case law, the defense experts explain just how groundbreaking this assault on a journalist is:

“Professor Feldstein refers to the ‘longstanding precedent that publishing secret records is not a crime’. As all our First Amendment experts make clear, it is for that reason that no journalist had ever been prosecuted for like conduct in the US despite ‘thousands upon thousands of national security leaks to the press’.”

Assange’s Views Make Him a Target

Accompanying the aggressive indictment, the Trump Administration has made several comments denouncing Julian Assange and WikiLeaks’ work and philosophy. The defence referred to Mike Pompeo’s statement calling WikiLeaks a “hostile non-state intelligence agency” that has “no First Amendment rights,” as evidence of the political motivation which fuels the prosecution, violates the presumption of innocence and provide the context in which Sessions was responsible for first indictment in 2017.

Assange’s political views make him a prime target for this attack. Assange’s political views, as the defense explained, are pro-transparency, anti-war, and anti-imperialist — these views “inevitably bring him into conflict” with the US and UK governments and explain why he has been referred to as a “terrorist” and why, though before he was president, Donald Trump has called for his execution.

“The sheer scale and significance of the revelations of US abuse of power abroad, throughout the world, naturally made him a target to the new ideologues of the America First approach adopted by Trump’s administration.”

Chelsea Manning is a Whistleblower, Not Assange’s Co-Conspirator

In response to the CPS’ argument that Julian Assange encouraged and prodded and assisted Chelsea Manning in the leak of Iraq, Afghanistan, and State Department cables, the defense reminded the court that Chelsea Manning’s own words directly contradict that claim.

“In her plea allocution statement to the Court Martial on the 30th July 2013, Chelsea Manning stated “the decisions I made to send documents and information to the WikiLeaks website were my own decisions and I take full responsibility for my own actions”. At that time no attempt was made to indict Julian Assange. The prosecution say that Julian Assange caused Chelsea Manning to obtain the materials referred to in Counts 2 – 4, 9 – 11, and 12 – 14. But her own account gives the lie to that false claim.”

Furthermore, defense counsel explained that Chelsea Manning’s court martial shows the lie of the US indictment, referring to evidence in the Manning trial which showed Iraq and Afghan material did not contain names of sensitive sources and the evidence of Captain Lim that the war logs do not compromise human intelligence sources.

Embassy Surveillance

The surveillance to which Assange and his legal team and other visitors were subjected to in the Ecuadorian Embassy in London are a key element of the defense’s abuse of process argument — the spying conducted by Spanish security company UC Global is a clear breach of lawyer-client confidentiality.

“We know that the US intelligence agency was being provided with surveillance evidence of what was being done and said in the Ecuadorian Embassy,” Fitzgerald said.

Two anonymous witnesses, who have testified to a Spanish court about the abusive surveillance UC Global conducted in the embassy, will be called to testify in Assange’s hearing. At least one is a former employee who will explain how UC Global’s director David Morales explained that the company was going to be “providing information to our friends in the US”, sending some information on embassy visitors to a server the US could access, and transporting some of the surveillance recordings to the US in person.

US Congressman Offers Assange Pardon

Assange solicitor Jennifer Robinson has provided testimony about US Republican Congressman Dana Rohrabacher’s 2017 visit to Assange in the embassy in which Rohrabacher made clear that he was representing President Trump. Rohrabacher offered Assange a preemptive pardon or otherwise helpful deal in exchange for Assange identifying the source of the 2016 DNC leaks. Assange refused the offer, and Trump later denied any knowledge of the offer — as Fitzgerald said, “He would, wouldn’t he.”

The pardon offer shows just how little the Trump Administration actually cares about prosecuting a violation of the law, and instead shows Trump’s interest in cutting a deal that served himself.

US Prison Conditions Would Put Assange’s Life at Risk

Finally, the defense argued that sending Julian Assange to the United States would put him at a dangerously high risk of suicide. Assange’s already precarious mental health — Fitzgerald alluded to years of clinical depression — has only deteriorated after eight years of arbitrary detention.

If sent to the United States, Assange would be tried in the Eastern District of Virignia, in a federal court system that threatens extreme prison sentences to secure plea deals and has a 97% conviction rate. Assange would not be able to defend hiself, he wouldn’t get a fair trial (as the process has already been prejudiced by years of public officials denouncing him and assuming his guilt), and he would very likely be sent to prison for life under horrifying conditions. Assange would almost assuredly be held (even before trial) in solitary confinement, and it’s likely he would be placed under extraordinarily restrictive gagging policy known as Special Administrative Measures (SAMs).

The defense will show testimony from psychiatrists and psychologists that, as in the case of Lauri Love, whose extradition to the US was blocked on the basis of extremely poor mental health care in the US prison system, sending Julian Assange to the United States would immediately put his life at risk.

Court reopens tomorrow, 25 Feb 2020, at 10:00am

USA v Julian Assange: Extradition Day 2

Defense debunks US claims of reckless dump and Assange-Manning conspiracy

Mark Summers QC, arguing for Julian Assange’s legal defense, spent the second day of Assange’s extradition hearing at Woolwich Crown Court thoroughly debunking two key allegations the US government makes against Assange in its extradition request. The US has alleged that Assange attempted to help Manning conceal her identity, and it has alleged that Assange and WikiLeaks released the full unredacted State Department cables in 2011 with a reckless disregard for the harm it could cause.

Guardian journalists to blame for unredacted cables’ release

A day after the CPS’ lawyer James Lewis QC, acting for the US, made dramatic claims of harm caused by WikiLeaks’ September 2011 publication of the unredacted State Department cables, the defense explained what really happened: The Guardian journalists Luke Harding and David Leigh published a password that irreversibly released the unredacted cables into the world.

Before detailing this disclosure, Mark Summers reminded the court that WikiLeaks entered into a partnership with several mainstream media outlets to responsibly handle and redact the material. WikiLeaks and these media partners engaged in a harm minimization process in which WikiLeaks, on some occasions, redacted even more than other outlets. Beginning to release the documents in November 2010, WikiLeaks and its partners continued to redact names and prepare cables for publication over the next several months.

Then in February 2011, Harding and Leigh published “WikiLeaks: Inside Julian Assange’s War on Secrecy,” in which they disclosed a password to an encrypted file containing the full unredacted cables. Harding and Leigh did not off-handedly or subtly reveal the password; the password was the title of a chapter in the book.

If there was any doubt about whether the chapter title was the password, the index at p 322 tells you that that is in fact the password. In court, the defense had to point this out to the prosecution’s James Lewis, who laughed incredulously.

The password disclosure went unnoticed for several months, until August 2011. On 25 August 2011, the German publication Der Freitag started reporting that the password was public and it had access to the encrypted file because it had been mirrored.

That day, Assange and WikiLeaks colleague Sarah Harrison telephoned the US State Department, warning them about what was about to happen. There is a transcript of the call, in which Assange and Harrison talk in terms of an emergency about to happen; they have intelligence they are about to be put on the web unredacted, not by WikiLeaks. Though told that they had the “emergency phone line”, the two were told to call back in a few hours.

Assange and Harrison also tried to get hold of the US ambassador in the UK, trying to explain that the “cables were about to be dumped online by someone else” and asking about the harm minimization process, whether it is complete or whether it can be escalated.

Assange said told the US,

“We don’t understand why you don’t see the urgency of this. Unless we do something about it, people’s lives are being put at risk.”

Wikileaks sprang into action and released a statement within 20 minutes; however, within an hour, the cables were already on other websites, including Cryptome.

Manning couldn’t have anonymized even if she cracked password

The 18th count against Julian Assange, underpinning the government’s theory of Assange “aiding and abetting” Chelsea Manning’s 2010 disclosures, is “conspiracy to commit computer intrusion.” The essence of the charge is the allegation that Assange agreed to help Manning attempt to crack a US military computer password so that Manning could log in under an anonymous account, allowing her to continue to obtain and disseminate classified information without exposing her identity.

But as Mark Summers argued for the defense today, this interpretation fundamentally understands the facts about how Manning’s computer usage would have been tracked. Rather than using login details, the military tracks users by IP address — so using an administrative username would not have concealed her identity at all. Manning, whom fellow soldiers considered to be a technical expert, with some of them even asking her to install software on their computers for them

The government has made an assumption about Chelsea Manning’s motives, eliding this basic fact, to baselessly impugn those of Julian Assange.

Manning’s conscience, not Assange, compelled her to blow the whistle

The anonymizing-password allegation is a key part of the government’s wider theory of an ongoing conspiracy between source and publisher, which alleges that Assange coached and encouraged Manning to leak over a period of several months. The defense explained today, however, that Manning’s own words in her 2013 court martial flatly contradict this claim.

“Although I stopped sending documents to WLO [WikiLeaks], no one associated with the WLO pressured me into giving more information. The decisions that I made to send documents and information to the WLO and the website were my own decisions, and I take full responsibility for my actions.”

Furthermore, Manning decision to disclose the US Army’s 2007 Rules of Engagement specifically alongside the Collateral Murder video underline these motives. Rather than disclosing them because Rules of Engagement were mentioned on WikiLeaks’ Most Wanted List, Manning explicitly wanted those who viewed Collateral Murder to be able to read the Rules of Engagement that the Apache gunners would have been operating under alongside the video of their slaying of Reuters journalists and innocent civilians.

Manning herself said that she considered the Iraq and Afghanistan war logs to be “among the more significant documents of our time, revealing the true costs of war.”

USA v Julian Assange: Extradition Day 3

Defense: Julian Assange cannot be extradited for a political offense

Assange on lack of access: “I am as much a participant in these proceedings as I am watching Wimbledon”

In day three of Julian Assange’s extradition hearing in London, the defense argued that the WikiLeaks publisher must not be sent to the United States because the US-UK Extradition Treaty precludes extradition for a “political offense.”

Article 4 of the 2003 treaty, which was ratified in 2007, says, “Extradition shall not be granted if the offense for which extradition is requested is a political offense.”

But the US government claimed that the judge must rely on domestic UK law, rather than the international Treaty. Even if the offenses Assange is accused of in the extradition request are political, the prosecution said, “he is not entitled to derive any rights from the [US-UK Extradition] Treaty” because it has not been incorporated into domestic law.

The same year the Extradition Treaty was written, the UK Parliament passed the Extradition Act 2003, a UK domestic law that does not feature a bar to extradition for political offenses. But in 2007, the US-UK Extradition treaty was ratified in the United States, without removing the political offense exemption. “Both governments must therefore have regarded Article 4 as a protection for the liberty of the individual,” the defense argues, “whose necessity continues (at least in relations as between the USA and the UK).”

The US government claims that for the Treaty to take precedence over the domestic Act would deny Parliamentary sovereignty. “There’s no such thing as a political offense in ordinary English law,” the prosecution said, “it only arises in context of extradition.”

The defense fundamentally disagrees. “True the 2003 Extradition Act itself provides no ‘political offence’ bar,” the defense says, “but authority establishes that it is the duty of the Court, not the executive, to ensure the legality of extradition under the terms of the Treaty. “

Defense lawyer Edward Fitzgerald QC says that the judge must take the political exemption into account, as extradition treaties for more than a century consistently feature such provisions. He also argued that the judge must consider Article 5 of the European Convention on Human Rights and principles in the Magna Carta to resolve that the use of a political offense in this extradition request constitutes an abuse of process.

The case against Assange has always been political

If the judge does rule by the US-UK Extradition Treaty, espionage offenses are clearly political. “Political offenses” can be either “purely political”, meaning political on their face, or “relatively political.” Espionage, the defense argues, is a paradigmatic “pure political offense,” as it alleges a crime against the state. Case law on how a court decides what constitutes a pure political offense explicitly considers “treason, sedition and espionage” part of that category.

The 18th charge, of conspiracy to commit computer intrusion, falls in this category as well. The charge comes under the Computer Fraud and Abuse Act, whose language makes clear that it should be tried as an espionage offense.

Beyond the use of espionage charges, the case against Assange has been political from the start. US government officials, members of the media, and US politicians have described Assange and WikiLeaks as “hostile” or even “treasonous” — even though, as the defense noted, Assange isn’t a US citizen.

The US will finish its argument on domestic law taking precedence over international treaties tomorrow morning.

Assange can’t participate in his own defense

At the outset of today’s proceedings, the defense noted to the court that Assange’s medication and other factors make it difficult for him to concentrate, and Judge Vanessa Baraitser said she would check in with him if thinks he’s struggling.

This afternoon, noticing that Assange, who views the proceedings from the back of the courtroom in the defendant dock behind slotted glass, appeared tired or otherwise struggling to participate, the judge asked him if he could hear the proceedings.

“I am as much a participant in these proceedings as I am watching Wimbledon,” Assange said, standing to speak from the dock. He continued,

“I cannot meaningfully communicate with my lawyers. There are unnamed embassy officials in this court room. I can not communicate with my lawyers or ask them for clarifications without the other side seeing. There has been enough spying on my lawyers already. The other side has about 100 times more contact with their lawyers per day. What is the point of asking if I can concentrate if I cannot participate?”

Unhappy with Assange speaking to the court, the judge said it was unusual for defendants to have a voice if they’re not going to testify. The court then briefly recessed as she allowed Assange to leave the dock into a back room to meet with his lawyers privately, but it appeared they were accompanied by security officers.

When the court returned to session, Fitzgerald asked the judge if Julian could be let out of the dock in the back of the court to come to the defense bench in the center of the court, where he would be able to have legally privileged conversations with his defense team.

The judge asked if this constituted a bail application, and then discussed the matter with the prosecution, who said it would oppose a bail application but thought it reasonable to allow Assange to sit with the defense. The judge asked if doing so would mean Assange would technically be out of the court’s custody; the prosecution said it didn’t believe so, as having security officials on either side of him could ensure he remained in custody. The judge didn’t agree, and the defense will have to make a submission tomorrow morning regarding Assange’s ability to participate in the proceedings.

USA v Julian Assange: Extradition Day 4

Judge denies Assange’s request to sit with his lawyers

First week of hearings ends early; to return in earnest May 18th

The first week of Julian Assange’s extradition hearing at Woolwich Crown Court has ended a day earlier than expected, with District Judge Vanessa Baraitser denying Julian Assange’s request to leave the glassed box known as a secure dock in the back of the courtroom.

Assange had asked to leave the dock to sit with his legal team so that he can have legally privileged conversations with his lawyers throughout the proceedings. “I cannot meaningfully communicate with my lawyers,” he said. “What is the point of asking if I can concentrate if I cannot participate?”

But the judge rejected the request, arguing that Assange has ample access to his lawyers to whom he can pass notes through the slotted glass barrier. She said she’s willing to start proceedings later so that Assange can meet with his lawyers in the morning and to adjourn court when the defense would like to meet with their client in a holding cell.

The defense explained this would unduly extend the proceedings and render them incoherent, as the court may have to break every three minutes for a twenty-minute break. When the judge said that was an exaggeration of what would be required, the defense reminded the court how lengthy and complicated is the process to take Assange to and from his holding cell. Nevertheless, Assange’s request was denied.

Prosecution claims Assange and WikiLeaks aren’t “political”

Earlier today, concluding its arguments from yesterday against the defense’s claim that Assange cannot be extradited for a ‘political offense,’ the prosecution said just because a charge is “espionage” doesn’t mean that it is necessarily political. Prosecutor James Lewis QC argued that an offense should only be considered ‘political’ if the accused was attempting to change a head of state.

“The Court does not need to resolve these issues, but they demonstrate that any bare assertion that WikiLeaks was engaged in a struggle with the US Government was in opposition to it or was seeking to bring about policy change would need to be examined far more closely.”

But Assange was clearly working to change US policy. Assange, the defense said, was opposed to US policy in Iraq and Afghanistan. “Why was he seeking to publish the rules of engagement?”, the defense said. “They were published to show that war crimes were being committed, to show they breached their own rules of engagement.” He said the Guantanamo files were published to show that torture was being conducted in the war on terror. This is the “very definition of seeking to change government policy.”

The claim flies in the face of commentary from US officials in 2010 who clearly considered Assange as politically motivated.

“He’s not a journalist. He’s not a whistleblower,” State Department spokesman PJ Crowley said in 2010. “He is a political actor. He has a political agenda.”

Furthermore, the publications did change US policy: a State Department cable showed that the US wanted its soldiers to have immunity for any crimes committed in Iraq, and the Iraqi government refused to provide it. This led to a breakdown in talks and the US withdrawing from Iraq.

 

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2 Responses to 24-27/02/2020 – USA v Julian Assange: Extradition Hearing Day 1 to 4

  1. Thank you for this!

  2. Instead of Julian Assange being prosecuted for publishing information about USA’s wrong doings, it should be the USA on trial for WAR CRIMES! Vive Julian Assange!

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