Thread by @MaryKostakidis

I am not saying that is what will happen in this case. However I’m reminded of the convoluted thought gymnastics of Logic/Philosophy 1

Deleted because I made an inappropriate comment in haste. But I also said, perhaps she means the individuals communicating the information in the cables were fabricating it. I can’t see how else you could arrive at this conclusion given the US certainly regards them as authentic

Next witness on video - Carey Shenkman

He is continuing from yesterday afternoon:
Cross examination by the Prosecution Junior counsel: you are not suggesting there is any law that precludes a publisher from being prosecuted under the Esp Act.
CS: agrees, yes the law allows that but there is also the US Constitution

there is a strong argument that the first Amendment would present a serious issue.
Prosec: is there a case that establishes that?
Carey: has never been tested
Prosec: was the door left open by the NYT case
Carey: that was not th issue argued before the Supreme Court

Prosec reads from Pentagon Papers decision saying the decision may have been different had they decided to prosecute, that a criminal prosecution may have been upheld, also that only one judge on the Supreme Court held strongly that the first amendment should prevail. Do you agre

They left it open for the press to be prosecuted.
Carey: quotes another case showing the opposite.
Prosecution asks him to say whether he accepts what the court said.
Carey: there are counter arguments. These issues are theoretical.
Carey : the NYT case prohibited the restrictio

restriction of the NYT. What is the end point of our conversation? Why are we litigating hypothetically?
Prosec: are you saying you aren’t qualified to comment on the ambit of the Esp Act - you are supposed to be an expert on that, are you saying you’re not qualified?

Carey: No
Prosec asks a question re whistleblowers & Carey making the point that the two are treated very differently.
Prosec: a number of courts have declared the Esp Act is not too broad. Do you make clear anywhere in your report that the Act has also been refined thru

Judicial interpretation.
Carey: primarily in spying situations & most scholars would say it has been broadened.
Prosec: the second judicially imposed requirement is that the disclosure would be damaging

.. ensuring the govt can’t abuse the statute.

this refinement prevents the statute from the effect of the first amendment

and precludes for arbitrary enforcement.
Do you see that?
Carey: what’s the question?
Prosec: why don’t you refer to this at all?
Carey: I refer to scholarship on this in my report. The passage you cite describes one element but there are other aspects of the law that affects a

Judgement

The law can be applied to a third party, a member of the public & as you get further away from the whistleblower, the same penalties apply & that is what has concerned scholars

Prosec: the Executive doesn’t decides the scope of criminal law, the court does - says he has made a mistake in his statement.
Carey disagrees - you are talking about the response of the court, I am talking about the political decision to take action & the effect on press freedom

Carey talking very quickly & pointing out to her she is confused.
Arguing about the purpose behind Section 793 of the Esp Act.. she has to do some reading...

Shenkman knows his stuff & the issues are complex & nuanced, & he is doing his best to communicate all of this but again, the Prosecution requires simple answers to simple questions.

Prosec: these sections only apply to spying but the statutes .. he interrupts: lots of whistleblowers have been prosecuted under Obama
Prosec: but the intent of the Act was it was intended for spies.
Carey: tries to tell her what they may have intended is irrelevant.

He keeps trying to explain to her that the issues she is raising are irrelevant because those cases don’t involve a journalist.
Carey: do you think serious scholars would risk their carriers spouting nonsense? You are focussing on one point on which there is much dispute

Serious scholars would not be giving you the binary answer on complex issues, I appreciate the job you have to do but.. she cuts him off.
She asks another question & he tells her rather than wasting the courts time perhaps she shouldn’t be reading out slabs on what other people

And saying & ask him questions.
She points out it is her job to point out to the court where he fails to be objective.
Asks another question & he is talking about the deleterious effect of investigations of the press - its not just successful prosecutions that are needed to curb

The press.
Prosec: all the examples you give are of serious publications
Carey: not at all, they are outlets that had views in opposition to prevalent policy but were greatly respected - gives great examples but talking too quickly for me to tyyyyype

The first amendment & Esp Act don’t make any disctinction (between publishers serious, fringe, etc)

Referring to the Pentagon Papers being published in their entirety by Deakin/ Beacon .. a precursor
Saying that he thinks the decision not to prosecute the NYT in this case is political
She is asking about the allegation JA conspired a source, he says they have tried this befor

tried to allege conspiracy & it hasn’t worked. She reads out the count & asks him if he understands it is only about docs with names. Do you understand the nature of the allegations? Do you accept they bare no relation to the other cases you mention?
Carey pointing out points in

of concern in past cases.
She says it’s a frivolous assertion.
She asks whether the computer fraud act has limited application, & says she wants a yes or no.
He tries to address the password question but she won’t let him because she wants to read from Kromberg judge supports

Kromberg uses “hacking”. Asks him about an academic’s interpretation
Carey: it’s contradictory & controversial, & she is oversimplifying things.
He says : you can quote his words in 2010 or you can take his words in 2019 about this case.

Summers: taking him thru some examples in his statement.
Carey: the majority of these reports involved ongoing conflicts
Summers: some of the press outlets published Top Secret info
Carey: yes incl communication technology

Carey: there are no docs in this case that are top secret.
Summers asks what he his response is to the comment his reference to these cases is “frivolous”
Carey: takes them in his stride “for my own well being”.
Summers: asks him about the “incontrovertible” judgement the Prosec

Summers is giving him the opportunity to go thru the cases & points she made, giving him the opportunity to comment.
Carey: you can’t look at one opinion & conclude it is an uncontravertible principle of law - that’s not how the law works.

Now discussing journos can’t engage in criminal activity - do you agree that soliciting a govt employee to hand over classified info is criminal ?
Carey: no, many cases have involved this sort of “conspiracy”

It’s never produced an indictment - one of the concerns the impact it would have on news gathering.

Summers: te the case of Rosen, a district court judgement
Carey: there is no court below it, & the opinion in Rosen of the application of Sect 793 to the press was disregarded. No one prosecuted the press for receiving the material. Summers is demolishing the Prosecutions argumen

Keeps saying he is just trying to “work out how bright is Rosen’s star” as precedent

Summers: how foreseeable was it that a foreign publisher would be prosecuted?
Carey: Unimagined & there is ambiguity whether it is possible

Carey: common theme for context: they don’t support the administrations policies, are revealing misconduct or revealing information contrary to what the administration is revealing.
Carey finished

Judge asks them to consider whether the transcript that has been commissioned by a private party should be made available to the press. (Yeeeeeees!)
Fitzgerald asks that the Prosecution ensure their docs are provided in time for the witnesses to read them.
Also says the Defence

Will undertake to do same for the two prosecution witnesses, of which Kromberg is not one, that they would have liked to cross examine Mr Kromberg. (Wouldn’t we all. We have heard an awful lot from him). Very short break.

I apologise I have somehow missed the name of the Prosecution junior Counsel. Because you have not been able to see and hear her performance, I feel compelled to try to convey the defining characteristics. She speaks slowly, loudly, with an ever so slight Irish lilt in her

her delivery, which is at all times sneering and supercilious.

I find myself asking why we don’t get any of that from the Defence.

Statement of Dean Yates @DeanPTSD

Fitzgerald summarising:
Reuters Bureau chief in 2007 in Baghdad.
2 staff were killed by US forces possibly in a clash with militants, tried to obtain info from senior military, & for the return of the Namir’s camera, it was reported as a firefight, the returned camera showed

No evidence of a clash. In an effort to improve safety for our staff, I tried to clarify the rules of engagement. The General showed us photos of weapons collected from the firefight. He was shown the beginning of the tape in the lead up to the incident. Judge interrupts -

Irrelevant, get to the releases - saw what happened to Said & Namir judge interrupts again - what’s the relevance?
Fitzgerald describes how Said survived the first shots & ....(reading quickly in case she interrupts again)
I immediately realised the US military had lied to us -

This statement is so powerful but can’t type quickly enough & Fitzgerald has to motor thru it

Had it not been for Manning & Assange, the truth I’d what happened to them would not have been revealed, the truth about what the US was doing in Iraq.

Fitzgerald gone to talk to JA

Fitzgerald: there are 5 references in this to the importance of the rules of engagement which are the subject of one of the charges

Lewis: we have no questions of this witness, we accept his evidence.
Judge: comments on request from the press to release the transcript? They will consider over the weekend.
Shot of Gareth talking to JA.

Btw Prosecution said they have paid for half of it, so I gather the Defence & Prosecution have commissioned the transcript
, & Lewis said the request should come to them ie a matter of negotiation with them.

See you Monday

Here is the witness statement of @DeanPTSD

bridgesforfreedom.media/wp-content/upl…

Here is the witness statement of Khaled el-Masri

spideroak.com/storage/OVPXG4…