Thread by @MacWBishop

Good morning. I’m live again from Woolwich Crown Court in southeast London for the second day of Julian Assange’s extradition hearing.

The way this works moving forward is this: lawyers representing the US government (prosecutors) will continue to make the argument that the charges against Assange meet all legal requirements for his extradition to the United States.

Meanwhile Assange’s lawyers (defense) will argue against his extradition using multiple lines of attack, built primarily around the UK legal concept of “abuse of process,” eg that something is “so unfair and wrong that the court should not allow a prosecutor to proceed.”

This defense will rely upon the idea that the charges against Assange are political in nature, and his attorneys have already indicated in their opening summary that they intend to harness the contentious partisan debate surrounding Assange in service of this defense.

Meanwhile, to gratuitously enlist a Marcus Aurelius quote, the prosecution will argue the court must “confine itself to the present” and look only at whether the charges submitted by the US meet the legal requirements for extradition, without delving into the merits of the case.

We started a bit late today. The courtroom is full and we have just been joined by the magistrate, District Judge Vanessa Baraitser.

John Lewis is the prosecutor representing the US.

Edward Fitzgerald is the defense attorney for Assange.

Assange joins us in an enclosed gallery at the back of the courtroom via a tunnel from Belmarsh Prison, adjacent to the court building.

Protesters chanting in support of Assange continue to be heard from outside the grounds of the court building.

John Lewis, the prosecutor, is complaining that the defense is receiving transcripts of the proceedings, while the prosecution is not.

The discussion about the transcripts has been resolved with a compromise, in which the defense will give the prosecutors a copy of the their transcripts.

Defense Fitzgerald says that Assange was handcuffed 11 times yesterday, and is asking that the judge direct the prison to treat Assange “humanely.”

The judge notes this issue falls outside the authority of her court & tells Fitzgerald he must apply to the prison authorities.

We are now getting back into the meat of the charges underpinning the extradition request.

The Defense is now describing the submissions they have made in support of their case; apparently it is a box of more than 5,000 pages of documents.

To summarise, the defense attorney says the US case is built on “lies, lies and more lies.”

Mark Summers is the defense attorney speaking now, he is describing SIPRNET and Chelsea Manning’s access to it based on the documents from Manning’s court martial.

Summers is now discussing the “Reykjavik Cable,” uploaded on 13 Jan 2010 by Manning to WikiLeaks; this is the first document the former soldier uploaded to the organization.

My understanding of what is happening here is that the defense is attempting to construct a chronology that bolsters their view of the charges against Assange being political in nature.

Essentially they wish to establish that the charges submitted by the US are solely a result of what they will argue is the Trump administration’s hostility to Assange.

However, they are simultaneously attacking a key point in the charges against Assange: the allegation that he aided Manning by offering to assist in cracking a password to access classified material.

The degree to which Assange may have assisted Manning is potentially an important legal issue, because the US-UK extradition act contains the concept of a “dual criminality requirement,” eg the crime for which someone is to be extradited must have an equivalent in the UK.

So the defense is attacking the idea that the allegation Assange assisted Manning does not meet the legal requirement of a crime in the UK, thereby failing the “dual criminality requirement.”

Obviously the prosecution rejects this line of reasoning: in their skeleton argument prosecutors assert that “determination of extradition offence is solely and entirely tested against the conduct alleged in the request. Defence evidence is utterly irrelevant.”

Summers is walking through WikiLeaks’ “Most Wanted Leaks” list; he is asserting that at no point did the list include “diplomatic cables” of the type uploaded by Manning to WIkiLeaks.

Summers is now saying that there is an assertion in the extradition request that Assange solicited diplomatic cables from Manning, which he says is false.

He is now addressing the idea that sources were put at risk through the leak of unredacted documents.

Summers is discussing at length testimony from Patrick Eller, a “former US Army investigator and expert in digital forensics.”

Summers now asserting the US State Department initially worked with a number of international news outlets to suggest redactions to protect sources; Summers adds that WikiLeaks and local media partners complied with these redaction requests (thereby protecting sources).

“Far from being a reckless unredacted release... what actually occurred was that one of the media partners published a book... [including] an unredacted password” allowing the world to access the unredacted documents, Summers said.

“The gates were opened, not by Mr. Assange, not by WikiLeaks, but by another member of the media partnership,” Summers says.

The hearing is in a short recess.

The hearing resumes with Summers continuing to outline the chronology of WikiLeaks and its involvement with Manning and associated leaked documents.

Summers is talking about David Leigh’s book “WikiLeaks,” and how the title of one of the chapters was the password to the mirrored WikiLeaks database which contained unredacted documents.

“‘We know you have a program in place to warn people, and we want to know if you can escalate it,’” Summers describes WikiLeaks as telling the US State Dept ahead of the publication of unredacted cables; his assertion is WikiLeaks warned the US the cables had been “accessed.”

Summers is describing how a database of unredacted cables was accessed by multiple third parties after the Guardian’s David Leigh published the password to the database as part of a book; the defense seeks to show Assange was not responsible for the release of unredacted docs.

Summers describes how Manning was looking for information about Guantanamo detainees & then found various other classified documents. He acknowledges this may seem peripheral, but he’s trying to show that the US’ assertion Assange “solicited” the materials from Manning is false.

A contentious exchange between defense attorney Summers and magistrate Baraitser over the degree to which the timeline surrounding Manning’s accession of documents relates to the allegation that Assange “agreed to assist Manning in cracking a password hash.”

Summers argues that his point is understanding the timeline of Manning’s access to classified documents is essential to judging the validity of the charges against Assange contained in the extradition request.

The prosecution contests this. In its argument it says “The absence or otherwise of ‘evidence’ of an agreement is irrelevant. This Court must assess the allegation contained in the request and accompanying documents, and is not required to consider the sufficiency of evidence.”

Summers going into detail about the “collateral murder” video, showing gun-cam footage from an Apache killing multiple unarmed civilians - including two Reuters journalists - in Baghdad.

When asked by the magistrate why he is focusing on the video, Summers says that he is trying to establish that the reason Manning uploaded Iraq Rules of Engagement documents was to contextualize the video, not because it was on WikiLeaks’ “Most Wanted List.”

His argument thus is that the extradition request is eliding the reasons and timeline of Manning publishing documents to the WikiLeaks server into a charge that Assange was soliciting these documents from Manning.

We are now breaking for lunch.

The Assange hearing resumes.

Summers, for the defense, notes that he broke his glasses over lunch, and apologizes “if I’m squinting” at magistrate Baraitser.

“‘At the time users were not required to have interlink passport accounts to use it, including SIPRNET internet search and browsing,’” Summers reads from Eller’s testimony. “It isn’t my deduction that this is how they were extracted, it is what the evidence showed,” Summers says.

The point Summers is trying to establish is that Manning did not require assistance from WikiLeaks to access a specific set of classified documents (including the Afghanistan war significant activity reports), prior to the conversation with Assange about hacking a password hash.

Summers then reads from Manning’s court martial transcript in an effort to establish that the SIGACTS (significant activity reports) did not contain sensitive names and sources.

When Manning uploaded the SIGACTS, she added a text document saying they had been sanitized of sensitive information, Summers says.

“Mr Assange was told that they had been sanitized,” Summers adds.

Before publication the media cooperative working with WikiLeaks discussed with Assange how the documents might be shared in order to minimise harm.

These included “more extreme measures taken than ever I had seen as a journalist” a Der Spiegel reporter said, as per Summers.

Eric Schmitt of the NY Times wrote an email about attempts by Mr Assange to contact the White House in order to sanitize the documents, Summers says, adding that Assange said he would withhold 15,000 documents as part of a harm minimization process.

Summers is working to establish that WikiLeaks acted responsibly in its efforts to “minimise harm” to potential sources in the leaked documents it published, a direct attack on the US government’s assertion that Assange put human sources at risk in active war zones.

Summers using testimony from Manning’s court martial to assert Manning’s colleagues viewed her as a technical expert and would turn to her in order to add unauthorised software to their computers.

Manning had even been asked by one of her supervisors for help in adding software to the supervisor’s computer, Summers says: “She was openly discussing in front of her colleagues starting a business hacking passwords.”

Again, Summers’ argument is that Manning did not require Assange’s assistance to access classified materials.

The magistrate is asking whether defense is asserting that these are true facts, or whether it is asserting these are details within the knowledge of the US government.

Summers’ contention is that this is a salient distinction as the magistrate weighs the validity of the extradition request.

Essentially Summers is saying that there is a discrepancy between the conduct described in the extradition request and the facts of the case, and asserts that this undermines the “dual criminality requirement” and therefore amounts to an “abuse of process” of extradition law.

“Scrutiny of the conduct alleged is not an enquiry into ‘evidentiary sufficiency’... but is a requirement for examining whether the extradition request is fair and accurate,” Summers says, citing previous extradition cases.

The cases he is citing are Castillo, Murua and Zakrewski, which I imagine means more to experts in the UK legal system than it does to me. These are of course referenced in the defense summary I posted yesterday.

From page 2 of the opening summary from the defense team.

If the particulars of conduct alleged in the extradition request are inaccurate, or incorrect or false by omission, it is the duty of the court to examine that, Summers says, arguing that this will inform the decision regarding “dual criminality.”

If you feed the true facts of the three charges (password hash-hack, soliciting classified info and reckless endangerment of sources) into the dual criminality machine, Summers says...

You establish that the particulars of conduct alleged aren’t criminal as a matter of English law, and therefore the court must engage its “abuse of process” jurisdiction, Summers concludes.

We now hear from James Lewis, the prosecutor representing the US.

Lewis says that we will hear further evidence during the hearing scheduled for May to address these topics.

Lewis argues that the court’s “abuse of process” jurisdiction is not engaged by a “cumulative” set of allegations.

In the prosecutor’s summary they refer to the defense’s approach as “the kitchen sink” method.

The objective facts are that a US grand jury indicted Assange, Lewis says. “We have a clear unequivocal legal basis for charging him, and that’s the end of it.”

As predicted earlier, Lewis is sidestepping much of the defense’s arguments, and asserts that the key issue at hand is that this is a matter to be decided in a US court.

“What Mr Assange seeks to do consistently is put up a straw man, and then knock it down,” Lewis says.

For example, Lewis says, the WIkiLeaks website contains a general request for bulk documents from classified databases. This by itself qualifies as the solicitation outlined in the extradition request, he asserts.

We pause as the magistrate inquires whether Assange is feeling sufficiently well to continue for today.

Assange replies through his team that he is having trouble concentrating and is not feeling well.

The judge instructs Lewis to complete his current point quickly.

Is it the function of this court to determine whether Manning uploaded the rules of engagement docs because of the collateral murder video, Lewis asks, or because of the solicitation alleged in the extradition request?

“It is simply not the function of this court to determine such factual issues,” Lewis concludes. “That is to be determined in a US court.”

Assange is conferring with Summers as Fitzgerald discusses a procedural issue with the magistrate.

Fitzgerald asks the court to hear legal positions regarding the US-UK extradition treaty tomorrow.

Lewis agrees. Looks like we are getting into the treaty tomorrow.

The magistrate asks for a detailed timeline for the rest of the hearing from both the defense and the prosecution.

The Assange extradition hearing is adjourned for today, and will resume at 10am local time tomorrow.

Argh James Lewis sorry guys

Again; James Lewis. Again, sorry guys