Thread by @DefenseAssange

Day 5 of Julian Assange's extradition hearing is resuming now, we'll live-tweet at this thread. Julian is not yet in the dock but the judge has entered and defense lawyer Ed Fitzgerald stands to note that they will call Eric Lewis to the stand today. #AssangeCase

Julian enters the courtroom, handcuffs jangling. Defense lawyer Mark Summers is speaking to the judge, asking for everyone in the courtroom to wear masks when not addressing the judge/speaking. Julian, members of the prosecution and defense are wearing masks.

Judge says she's not required to order people to wear a face covering but wearing one is at everyone's discretion. Julian must be given the option to wear a mask if he wishes to

Eric Lewis is being contacted to begin testimony. Lewis is a lawyer for Reprieve, and he "represents Guantanamo and Afghan detainees in litigation, seeking redress and accountability for torture and religious abuse while in US custody." reprieve.org/about/

Per @kgosztola's preview (dissenter.substack.com/p/julian-assan…) Lewis is "likely to offer testimony on the risk that Assange will be denied justice if brought to trial in the United States."

Lewis is also expected to discuss "the risk of cruel and inhuman treatment that Assange will likely face in U.S. jails and prisons" #AssangeCase

Lewis is testifying that it's "significant" that Assange was indicted in 2018 for actions alleged in 2010, and not during the Obama administration

Lewis: no publisher has been prosecuted just for publishing, so we begin with that background. Number of articles, credible to me, make clear that there was an impediment to prosecution that was overwhelming, referred to within the Justice Dept as 'the New York Times problem'

Once again, the significance of Sari Horwitz's 2013 Washington Post article, 'Julian Assange unlikely to face U.S. charges over publishing classified documents', because of the distinction between the leaker and the publisher. Lewis: "That is the New York Times problem."

Lewis refers to the Pentagon Papers case, the government alleged national security risks, the Supreme Court declined to prevent their publication and defined a series of standards in balancing public interest and First Amendment protections

Prosecution has attempted to portray the Obama admin has simply having not made a decision to prosecute rather than affirmatively deciding not to prosecute. But Lewis finds it credible that the Obama DOJ decided not to due to the credibility of this article, quoting DOJ official

Lewis on Trump admin view of Assange, now going into then-CIA Director Mike Pompeo's "quite remarkable" comments on Assange in a speech in April 2017. (That speech is here: cia.gov/news-informati…)

Pompeo in 2017: "[WikiLeaks] pretended that America’s First Amendment freedoms shield them from justice. They may have believed that, but they are wrong."

Lewis talking about then-US attorney general Jeff Sessions calling the arrest of Julian Assange "a priority," directed the Dept of Justice to take another look at the case

Motivations of the first indictment: Lewis: the timing was to make sure that the prosecution was within a limitation period but also indicates a justice official directing federal prosecutors to set a tone against leaking, with the details/theory to come out in full later

And who do you see as behind the superseding indictment in May 2019? 2nd indictment goes to a whole new place. Makes clear that unlike 1st indictment, "disclosing of information is not a First Amendment issue for this administration"

and "the New York Times problem was blown out of the water." Also indicates a willingness to go after cases on the say-so of administration officials.

The adding of 17 additional charges of Espionage, with the jeopardy that comes with it and the First Amendment implications, indicates a prosecution that reflects the new administration and Mr Barr's view that he acts at the behest of the president

and the President effectively directs prosecution. Abuse of the criminal law enforcement power. Fact that the case and allegations go back years and years reflect a political change and part of the new admin's view toward the press and leaking

Lewis: Mr Kromberg (assistant US attorney in EDVA) offers no basis for new charges years later, without new evidence. Knows the previous admin didn't prosecute, offers no explanation for the change in decision

Significance of potential prison sentence -- would go on for the rest of Julian's life. Kromberg suggests it'd only be 4-6 years. Lewis: going from 1 to 18 counts, all could be prosecuted as 1 count, they were not.

Sentencing guidelines aren't binding but judge must explain if deviates from them - even within guidelines, looking at a sentence from about 20 years "if everything goes brilliantly" to 175 years if the judge decides to.

Disingenuous to suggest such a short sentence is likely when it was charged this way. Also the fact that Manning was sentenced to 35 years and the govt had asked for 60.

Most Espionage cases have been sentences of life in prison, and are at 20 years at the lower end. Prosecution could have put these charges in 1, but this indictment points to a very aggressive approach to sentencing on the part of the government

If he is extradited, Lewis' view is that he'll be detained in Alexandria VA. Thinks it a high likelihood that he'd be in Special Administrative Measures (SAMs). All signs point to govt treating Assange as having access to secret information and concerned about disclosure

High likelihood that he'd be in isolation for a long period of time. Likely at ATX in Colorado (post-trial). Multiple nat'l security prisoners there now. Shackled through empty corridors for food and breaks from isolation

Now discussing how WikiLeaks documents would be "essential" to war crimes prosecution at the International Criminal Court

Trump, Bolton and Pompeo have made statements criticizing the ICC

Executive Order blocking assets of any non-nationals who even assist the ICC. Could apply to Mr Assange? Lewis: yes, they are the most important disclosures, on Iraq and Afghanistan

That exec order is here: whitehouse.gov/presidential-a…

End of defense questioning, now time for prosecution's cross-examination

Lewis confirms he's not retained as a lawyer for Assange. Is being paid the legal aid rate as an expert (£100/hr). Prosecution each time asks witnesses if they're aware they must give unbiased and objective opinion

Discussing Lewis giving his views on this case in the press before acting as an expert. His views were that the US shouldn't prosecute and the UK shouldn't extradite. Lewis: and they still are my views

Eric Lewis in The Independent, May 2019: "As an American lawyer, I don't want to see Julian Assange extradited to my country" independent.co.uk/voices/julian-…

June 14 2019: "UK signs Julian Assange's US extradition papers" RN Breakfast, with 'Eric Lewis, extradition legal expert' abc.net.au/radionational/…

Lewis talking about his experience underlying his expertise on prison conditions in the US. Prosecutor trying to undermine him as an expert on prisons. Lewis: I've studied prisons, spent a lot of time in prisons, but I'm not a warden...

Prosecution: please don't give a speech

Prosec establishing Lewis hasn't written on prisoners in an article that's been peer-reviewed. Hasn't visited ADX in Colorado.

Prosecution: we agree Assange will be held in Alexandria VA. Lewis has represented 1 client held there, visited then but not since

Lewis rep'd (sounds like) Abu Khattala, who was acquitted of some counts, the government withdrew capital offenses after defense submissions. Lewis corrects prosecution that this was not the same jury pool as Assange would face (Dist of Columbia, not Eastern District of Virginia)

Lewis' client was held in SAMs. Created difficulties, very serious issues with classified info, so I did spend time with him but it was neither easy nor rapid

Prosec: did SAMs prevent him from facing trial? no.

Did SAMs prevent his acquittal? Lewis can't understand/believe the question

Legal visits were monitored, recorded. We were told that audio wasn't recorded but we weren't certain, told that the team monitoring the recordings wasn't the same as prosecution team but I've seen too many cases where that is not the case

Talking about others held in federal prisons. The prosecution brings up Zacarias Moussaoui, 9/11 attack planner, in ADX in Colorado on life without parole, and Maria Butina

Talking about submission re whether Mr Assange's extradition would contravene the European Court of Human Rights. Defense notes the issues with ECHR are article 3 and 5, not just 3

Discussing prison conditions. National security inmates are placed quite frequently in 'administrative segregation' (solitary confinement)

Discussing the many reasons for placing someone on administrative segregation.

Prosecution: you agree there is no solitary confinement?

Lewis: no, believe that's a semantic issue. Admin seg is solitary other than in the vernacular of the bureau of prisons

Prosec: also not in the vernacular of the ECHR?

Lewis: I would suggest that 22 hours a day in a 50 sq' cell with no contact with other prisoners causes people to deteriorate significantly, in my view is solitary confinement

Prosec: was your client Khattala held in solitary confinement?

Lewis: I believe so and he believed so

Pros: ad-seg allowed unlimited visits by his lawyer?

Lewis: no, not unlimited, certainly not in practice

Prosec examining Lewis' statement that Assange will be held in solitary confinement. Prosec: even prisoners subject to SAMs are on a break schedule

Lewis: I said tantamount to solitary. Break schedule requires no other prisoners can be in hallways/etc so they're middle of night

Break in testimony now. Also prosecution wants to raise an issue without the witness present. Testimony will resume in 15 mins.

Prosecution raising issue of his limited time, complaining that Lewis gives a speech in all his answers, doesn't think he'll finish today, and I'm feeling stressed to meet the time requirements, wish to be released from time constraints

Judge: it's within my right to impose limits. Have asked for likely time needed, asked defense to weigh in, and thus I've allowed you the time you need. You've asked for 4 hours, we're only half hour in, I'm sorry you feel stressed.

Not the obligation of the court to control the witness, it's a matter of your questions.

Prosecution: you don't know the length of my cross-examination. I see this going into tomorrow morning. Need to do justice to my client as well

Judge: if you're going beyond given 4 hours, you'll need to explain yourself. It's case management issue

Prosec: I disagree, the court needs to explain why it's curtailing, not right to place the burden on me, I'm not prepared to have to hurry through

If he's allowed to give long rambling answers and I'm not allowed to stop him, it isn't right

Judge: it's a matter of how the question is asked

Prosec, angry: that's not true, I ask closed questions and he gives speeches

Judge: it's up to you in how you ask, I need to let the witness answer the question asked

Prosecution: there's no judge in this building or any extradition case I've been in have I ever known cross-examination to be 'guillotined'. Witness cannot give rambling answers, I'm not being given opportunity to present my case. I hope he shortens answers but he hasn't thus far

Judge: well I'm glad you acknowledge my right to limit

Judge: "the word guillotine comes from you, I've never used it" and that's the end of the matter as far as I'm concerned

Prosecution: "so be it"

Returning from break. Prosecutor James Lewis to the judge: 'I apologize if I used any intemperate language ma'am'

Judge: thank you for your apology

Resuming cross-examination of Eric Lewis

Prosec reviewing reasons someone would be placed in administrative segregation. Do you agree those are the reasons for placing?

Lewis: yes with one condition - if Attny General imposes SAMs, they're placed in admin seg

Prosec: Mr Kromberg specifically says there's no solitary confinement in the ADC. You disagree?

Lewis: yes I disagree, believe the distinction is semantic

Prosec: which of those reasons would be used to place Assange in ad-seg?

Lewis: believe a mental health issue has been raised, as well as the notoriety

Prosec: so we agree there's a procedure to determine?

Lewis: yes, but with no right to challenge

Reviewing whether Lewis has read case of Ahmed with regard to European Court of Human Rights, prosecution believes all issues Lewis raised have been dealt with and rejected in that case

(April 2017: 'Sessions won't say if Assange charges could lead to prosecution of journalists' money.cnn.com/2017/04/21/med…)

(Long back and forth, finding correct paragraphs, trying to establish whether these issues have been addressed)

Prosec quotes Joshua Dratel, 'SAMs causes irreparable difficulty in dealing with client' -- Lewis: SAMs make it difficult to prepare for trial, but create issues of unfairness when dealing with national security case, as this one is

Lewis explaining "unique difficulties" under SAMs in nat'l security cases. Meet with a client in a room in the prison, can't always deal with all documents involved

Lewis: another difference in this case, besides lots of national security info here, is the mental health issues raised, Assange would be especially vulnarable

In this case William Barr likely to make a national security decision to put Assange in SAMs

When you say no risk of arbitrariness, I can't agree with you

Prosecution working to establish that the Ahmad ruling decided that the application of SAMs did not breach the European Convention on Human Rights

Prosec asks if Lewis doesn't know what issues defense will raise, how can he opine on whether those will make it impossible to defend in court?

Lewis: because I've read the indictment. WL leaked a million documents which the US gov has said are nat'l security information

Continuing back and forth about when SAMs were applied in other cases, to determine whether they're applied arbitrarily and whether they contravene the ECHR and whether they impede legal defense (prosecution obviously arguing no to all of the above, Lewis providing nuance)

Debate over how conditions are applied by Bureau of Prisons. Lewis: I don't think it's fair to deny me access to a document and ask me to comment on it

Judge: if you need the document we can provide it but believe you can answer the question

Lewis: without a document with 1000s of pages I can't comment

Prosec: you purport to be an expert, are you an expert on prison conditions or not?

Lewis: I don't remember everything in the document

Prosec: are you or are you not an expert in conditions regarding mental health care in prisons?

Lewis: if you're asking if I'm a psychiatrist or a warden, I am not

Prosec saying Lewis cannot name changes to US Bureau of Prisons regulations since 2014

Lewis recounting some changes he knows of, re: 1 mental health care professional for every 500 inmates, has seen evidence that those goals were not met

Lewis: but if you have a client not getting mental health care, that proportion is irrelevant to you

Mr Assange diagnosed with Aspergers. Prosecution establishes the Bureau of Prisons has a procedure to deal with inmates on the autism spectrum

We can now hear what sounds like an autoplaying video of news coverage of Assange's case. May be coming from Lewis' computer accidentally. Judge leaves the room, Lewis' video disconnected as they deal with tech issue

Breaking for an hour for lunch. For background on SAMs, see @theCCR's 2017 report, "The Darkest Corner: Special Administrative Measures and Extreme Isolation in the Federal Bureau of Prisons" ccrjustice.org/sams-report

Court is supposed to be resuming, but videostream is down, clear technical difficulties #AssangeCase

Still haven't resumed the long cross-examination of Eric Lewis, his video connection has been reinstated but there are issues with his audio

Audio connection still not resolved, Eric Lewis trying and trying to be heard - the press can hear him on video link, apparently the court still cannot

Apparently court resumed, but press videolink did not work -- we could hear none of this:

#AssangeCase

Video link - sounds like we'll be ending for the day due to technical issues. Some discussion of Julian's lawyers access to him

Adjourned for the day, court will resume tomorrow at 10am London time. #AssangeCase

Full thread is here: threadreaderapp.com/thread/1305431…

Today's report is here: assangedefense.org/live-blog-entr…

#AssangeCase