Thread by @MaryKostakidis

Extradition hearing Sept 8 Morning
In the videolink Observation Room
First a comment about the experience of the witness yesterday - a complete shambles: the technology failed, the truncated time to go through his statement (half an hour rather than an hour & a half) resulted

In confusion as Summers tried to moto through it with the witness jumping to other parts of the evidence and the court unable to see him. So it was largely useless. Prof Feldstein is due back this afternoon.

Motor

Feldstein is the Defence journalism Expert witness. The Prosecution argues yesterday only factual witness (medical) should be accepted as the rest simply offer an opinion. Defence argued it is the basis of their opinion that is critical to establish.

We are being read a statement, including “you may not see the defendant at all times”. We got 2 glimpses the whole day yesterday.

Court I’d delayed by half an hour, so 10.30am start

Is. Sorry about my typing I shall endeavour to improve it!

We are in court now. Stella is there. Instead of @SwaziJAF today, @khrafnsson is sitting nearby

Perhaps it is @suigenerisjen in the corner next to @StellaMoris1
Image is somewhat blurred

@SwaziJAF in too now

Jackets on as time approaches

Judge enters

We don’t have a view of the back wall with the glassed area where Julian may be sitting already..

Here he comes. A bare glimpse

Delay due to Julian’s lawyers needing to see him

Summers: witnesses have been rejigged. Clive Stafford Smith on in the witness box

Summers questions him:
I’m a lawyer with Reprieve rep people facing the death penalty, secret detention, rendition, kidnapping, and litigation surrounding conduct in Iraq.
How have the classified WikiLeaks docs helped your work?

Drone killings in Pakistan as revealed by W cables - very important in litigation & big change in attitude to use of drones - Pakistani govt classed them as war crimes. Our country’s reputation is seriously damaged. Without the W docs, litigation would have been very difficult.

Cables disclosed attempts by the US to block investigations into renditions, torture & other crimes. Eg pressure on countries not to execute international arrest warrants.
US assassination program in Afghanistan & Pakistan, targets included journalists - unlawful & reprehensible

Guantanamo Bay: work with detainees - emergence of info that despite assurances, those detained there as a result of bounties rather than the worst of the worst terrorists. Difficult to establish this fact - evidence ..
(it’s very hard to hear anything he says unless repeated)

Evidence that some were entirely innocent - some of it came from @wikileaks that disproved what the US was alleging against my client.

It’s important to read this witnesses statement because it’s too hard to hear & I worry I am perhaps mishearing

He keeps repeating he accessed this docs on the NYT website.
The point was that if people knew what was going on there, it would be closed down he says
I would never had believed my govt would have done what they did, not just torture but murder.

Enhanced interrogation techniques & secret prisons- like techniques of the Spanish Inquisition.
Razor blades to genitals, but psychological torture was worse said my client.

The British govt actively avoided their responsibility (presume to his client).
@wikileaks disclosures - how did they help?
Where people were taken.

One client remains in Guantanamo Bay. Referring case to Int Criminal Court.
What has been the US response to investigations of ICC?
Threaten with sanctions so non Americans can’t/won’t testify against the US.

Lewis cross examining Stafford-Smith:
Your point is you believe the @wikileaks publications were in the public interest. Are you aware there is no defence in Britain for this under the Official Secrets Act?

You mention specific cables - there are no charges against Mr Assange for publishing the specific cables you refer to. Has the defence explained that to you? Have you read the indictment?

Washington Post & NYT published this cable a year after @Wikileaks
JA is not being prosecuted for those cables, how is it relevant to this case? There are other things that I haven’t spoken about yet Stafford Smith

Lewis says the only thing JA is charged with is for those cables that name people & risk their lives. Can’t hear SS’s response.
Lewis - that is not my point, there are people outed by @Wikileaks - the only Count relates to those cables. SS inaudible
Lewis - You are wrong.

Lewis - you cannot tell this court how to prosecute this case. SS disputing how the Count should be interpreted. SS explains how things happen in A,Erica when the case is conducted.
Julian is trying to speak. The judge says he can’t & needs to be advised by his lawyers about the

consequences if he doesn’t cease to speak.

Break while his lawyers speak to him. Perhaps he can convey to them the point he needs to make. The purpose of him sitting behind a glass? Seems barbaric. There is a veneer of civilisation here. The defendant has no rights. He should be seated behind his lawyers.

Me: I have to tell you watching & listening to this is excruciating

They are trying to fix the audio prob with the witness’s mic during this break

It is not evident how Julian can signal to his lawyers that he needs to speak to them as he is far behind them. I saw no one stationed at the glass wall to be a go between in the one moment they focused on him.

Judge reminds Julian not to interrupt or she’ll chuck him out.

Lewis: the only part that deals with publishing, doesn’t include the material you refer to.
SS: routinely in American courts many things are included that aren’t specified in the charges. Lewis seems to have agreed in the end

Lewis: you say little in the material would threaten national security.. you are not a classification authority, nor equiped to assess impact on national security.
SS - (essentially is saying) what’s torture got to do with National security.

Lewis - definition of national defence information incl disclosure must be damaging to US - you make a sweeping statement
SS - the most damaging thing for the US has been (fuck, talks off mic)

SS - the way we classify evidence of torture is profoundly wrong.
Lewis - why should a court accept your view rather than that of a jury hearing the case?

Asks him his view about revealing names. Agrees it’s not good.
Reads from David Leigh’s book : Julian didn’t seem concerned about the risk of revealing names.
SS - inaudible but seems to agree, not a good idea.
Lewis - can you see that is the only thing he is being charged with

SS - repeats I think that that is not what will happen.

10 minute break, I think for Summers to talk to Julian again about the earlier incident.

Clive back in the witness box.
Summers making the point that the disclosures are not just in the public interest. Actions condemned by Pakistan & ICC as war crimes. Re the Counts being just about docs that reveal names. Count 1 receive & wilfully communicate cables, detainee

Assessment briefs, GB docs; cables; rules of engagement; documents containing names.
“Cables” if followed by a semi colon.
It’s been suggested the only cables being prosecuted are ones that contain names. SS - counsel has misunderstood.

Summers going through all the Counts that mention “cables” - not qualified by only cables revealing names.

Summers: GBay docs reveal names of detainees who became informants.
Going to David Leigh book.. asks whether he knows Luke Harding’s role in release of the cables. Luke Harding is responsible for fabricating stories in the press. Judge stops him.

Lunch break

Thank you to everyone sending messages from around the world

I don’t know why we are still looking at the Observation Monitors’ wall. The lunch hour is well & truly over.

This is a long break. Not back for another 45 minutes..

Waiting for the judge

Tech difficulties with videolink “because it’s peak hour”

Can see the court now but the judge still isn’t there.

She’s here

Lewis clarifying for the judge in case she was confused by the previous witness, that the only cables J is being prosecuted for are those that contain names.

“In English grammar Madam we would probably put a parenthesis to all the way down to ...” he is pointing out that perhaps the punctuation is at fault in the misinterpretation of the Count.

Summers: disagrees.
Lewis: it’s not a matter open to dispute Madam.

Another break

Aha. Feldenstein is back.

Oh dear. Still some difficulties hearing each other.

Waiting for the judge

You have to wonder if at this rate it will take 3 months rather than 3 weeks.

Judge enters

Summers: failed Presidents attempts to prosecute journalists - Nixon & Jack Anderson. Didn’t prosecute on AG’s advice but tried to discredit him with lies & considered assassinating him - poisoning him & other methods.

(Above was described by the witness)

One of the allegations in this case is that J solicited docs thru “the most wanted list”. F says it is standard operating procedure for journalists to solicit - for information plus docs to back it up.

Have you solicited classified info? Yes.

Protecting sources: attempting to crack a hash to help protect source. F says it is a journalistic obligation & we use all sorts of techniques to protect identity of sources. Do you teach these techniques? Yes.

Summers: “W publications are criminal because they disclose names”: F - easy for the govt to assert harm but it’s generally exaggerated- national security is used as a shield to hide crime or incompetence. Nixon gave instructions to “destroy NYT” because they are our enemy...

.. that the journo is a left wing cock sucker

Summers asking permission to ask a question

Fitzgerald now asking question: no prosecution under Obama admin - why? F - Obama admin eager to file criminal charges but decided not to because of the precedent of charging a publisher plus 1st amendment protection.

Fitzgerald summarises change in attitude under Trump described in Feldenstein statement. Two prosecutors (named) disagreed with proceeding because Espionage charges pose serious risk to Ist Amendment protections and threat to freedom of the press.

Lewis: Do is a favour. Please give short answers & only answer the question.

Lewis: you say you are an expert, according t9 criminal procedural rules. Can you describe them? Witness describes them.
Lewis: it has to be unbiased. What’s your specific qualification? You don’t have a legal background.

Lewis: on decision to prosecute under Trump.. he is making the point that the Grand Jury continued right thru the Obama Administration right thru to Trump admin. If you are unbiased why wouldn’t you put that in your report? Witness: I don’t know.

Lewis : you didn’t include a footnote because it includes information you didn’t want anyone to read.

Lewis is trying to discredit the witness as not impartial.

A large bundle was sent to the witness last minute it seems by the prosecution who have numerous questions for him about it but he has not had time to read it.. looking for it.

This bundle was sent to the witness yesterday

Found the report in question.
Lewis: in your report the only paragraphs you quote are the 2 middle paragraphs. You don’t quote the paragraphs that cast doubt on your view of the position of the Obama administration ie that the investigation remained open.

Witness - “The proof was in the pudding - they didn’t indict”
Lewis: but he was in the Embassy by then.

Lewis quotes other information in the public domaine (in the large bundle) that there was an ongoing investigation. As an unbiased expert shouldn’t you have included this? Judge asks him to deal with his phone which keeps ringing

Lewis quoting statements by others including Kristinn & Pollack (J’s American lawyer) that the investigation has not been called off. Also a tweet by @Wikileaks that indicated they believed they were still under threat.

Witness saying the tweet didn’t seem relevant, that J may have felt there was a continuing threat but his view was based on what people close to the administration were saying.

(That is the witnesses view)

Lewis: if there was a decision not to prosecute , why would the investigation continue?
Witness- maybe they were hoping more evidence would come in

Lewis: would it fair to say you assumed he would not be prosecuted for publishing material but not for conspiring to hack

Lewis now asking some very convoluted questions.
Witness says he doesn’t know how to answer the question, then that Lewis is going too fast.

Witness says the statement that if they prosecuted Assange they would have to prosecute NYT, is a quote or paraphrasing of Matthew Miller.

Lewis asks if he agrees with that?
Witness: I’m not a lawyer
Lewis : Difference is the NYT received the info passively - didn’t solicit, encourage

Journalists are not above the law. Witness agrees.

Witness needs to go to the bathroom. Judge warns him not to speak to anyone about these proceedings as he is under oath

Lewis was suggesting that Obama perhaps didn’t indict because Julian “was in the Embassy by then”. I guess Obama could have asked the UK to storm the Embassy but he didn’t, Trump did.

The pressure the witness must be under must be enormous. He is back.

Lewis : 2 differences between NYT & Assange 1. reporters are not above the law - they do not have a 1st amendment right to steal or otherwise unlawfully obtain information. Do you agree? Witness agrees.

2. Computer hacking - is a journalist entitled to hack into computers to obtain information?
Witness: No.
A journalist can not commit a crime - agree.
Did Manning break a law?
Is it illegal to leak national security information?
Govt insiders can’t leak. If Assange ..

conspired then he has also committed a crime, has he not?
Definition of what “help” means, if a journalist “helps”.
There is no allegation that the NYT helped, or committed any crime. Isn’t there a fundamental difference between the NYT & JA?
Witness: Yes.

Lewis: The 3 Counts that relate to publishing are with respect to docs that include names. Quotes what the NYT & Guardian have to say about this.

... criticising @Wikileaks for publishing unredacted cables

Witness: there are conflicting accounts of how that release happened.
Lewis: do you agree unredacted files should not have been published.
Yes

Lewis quoting Guardian journalists criticising publication of names, quoting JA “they are informants, they deserve to die”.
Do you agree the names should not have been published?
Witness agrees.

Lewis: would a responsible journalist publish a name, endangering the person when it is unnecessary to the story?
Witness: No.
Lewis: you say in your report encouraging sources is standard journalistic practice.. but under oath here that they must not break the law.

Lewis: the govt, in order to secure a conviction must prove harm or damage to the US govt
Video freezing

The prosecution must prove the disclosures were damaging, to a jury. You say National Security is used as a shield to cover embarrassment. In order for JA to be convicted, it has to prove harm. Do you agree that is a fair hurdle the govt should leap?

Witness: it doesn’t have to prove harm, but reason to believe it could cause harm

Lewis: you believe this is politically motivated. Do you accept a grand jury has found probably cause?
Witness: Yes but I can’t say it is true

Lewis: quoting from prosecutors’ principles which bar any political motivation. You have picked out of the ether.
Witness: no that just says they’re not allowed to be motivated by that but it’s naive to assume it never happens.

Lewis asks if the witness has seen all the evidence, whether he knows Trump ordered it.
Witness says you only find out in later. Explains why he thinks it is politically motivated - Trumps poisonous remakes about the press etc

Lewis just quoted another defence witness statement without telling the Feldstein whose statement it is & asked if he agreed. No he says. Lewis divulges the author.

Lewis: do journalists ask govt employees for classified information!
Yes.
Do they solicit?
Yes.
Are you aware of any prosecution for that kind of conduct?
Witness: Not for an act of publication.

Lewis: what did the NYT do to help Mr Ellsberg?
Witness: they were very active in helping.
Lewis: How active?
(I don’t know it’s still Lewis asking questions the video froze ages ago)

Did the NYT physically copy the report?
Yes.

It may be Summers asking questions now...

Summers is trying to clarify what kinds of assistance would be criminal. What if the assistance was for the purpose of concealing the identity of the source? Witness: that’s a journalists obligation

Journalists conspire, direct their sources every day. If you criminalise that, most of what investigative journalists do will be criminal.

(Above was the witness talking)

Witness is making the point that if they intended to prosecute only non journalism related acts, then the indictment would have been far narrower. The scope of the indictment indicates they are targeting the press.

Summers: were you at the restaurant where JA allegedly made the comment about informants deserving to die?
No, I don’t know what would have been said.

Summers now out - Lewessing Lewis. (Quoting more from reports that Lewis quoted from, that prove the opposite to Lewis’ conclusions).

Summers quotes report saying senior Dept officials pressuring prosecutors & that there was no new information.
Witness: grand juries are very malleable.

Witness finished.
Tomorrow morning will start at 10.30
It’s aground 2am in Sydney. Goodnight.