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#JulianAssange hearings Part 2 - Day 2 (Thread)

Between 2 - 3 defence witnesses are expected to testify today

via @SputnikInt
WikiLeaks editor-in-chief @KHraafnsson explains that he expects witnesses to rebut “absurdities” from prosecutors that #JulianAssange is not a journalist & that his activities – which are the subject the US indictment against him – aren’t journalistic activities

Via @SputnikInt
WikiLeaks editor-in-chief @khrafnsson:

“There will be witnesses called today… probably gonna hear more arguments basically dismissing all these absurdities &the claims that Julian is not a journalist and his activity outlined in this horrendous indictment are not journalistic..
...activity. There will be plenty of experts to attest to that that this is journalistic thing that he did back in 2010 and 2011. So, let’s hope that they will be able to convince the court though I am not optimistic I have to admit.”
Mark Summers QC: “We thought we would have access to Mr Assange after the hearing we have learned that is not going to be possible at any time…. The result being we may be asking you to sit regularly at 10:30”
Clive Stafford Smith of @Reprieve Anglo/American human rights lawyer takes the stand. He explains the purpose of Reprieve includes cases involving rendition, secret detention, torture, death penalty cases & litigation involving conduct in Afghanistan & Iraq.

via @SputnikInt
Stafford Smith: WikiLeaks cables and other leaks were important for litigation involving US drone killings in Pakistan. There was also a "sea change in attitudues" in relation to drone killings with actions condemned by Pakistani courts as war crimes.
"[The US'] reputation was seriously damaged in a way that those … criminal offences were taking place." Stafford Smith also says that the litigation involving these drone killings would have been “very difficult and very different” without WikiLeaks disclosures.
Cables also showed pressure not to execute international arrest warrants and "not to prosecute" cases of torture, Stafford Smith says.
US took to doing [assassinations] in various ways.. [one leak] from WikiLeaks of a list of targets in Pakistan/Afghanistan area which included a list of various people with 669 names these were people who had been targeted in various ways and incredibly puerile attitude towards..
assassination… they revealed names that came from American allies… in one way the most disturbing thing is that it revealed out the assassination programme [against alleged terrorists].. leaked into narcotics… “they were actually targeting people for death” for their role
“I think [this assassination programme was] not only unlawful but morally and ethically reprehensible…"
Stafford Smith names a journalist who has been targeted 5 times for assassination by the United States with the use of hellfire missiles from predator drones. “A monumental criminal offence”, he says.
“I found it immensely frustrating that the world had no idea of the unreliability of the evidence against my [Guantanamo Bay] client” – Clive Stafford Smith
WikiLeaks disclosures enabled people to piece together evidence exposing the lack of credibility of witnesses against Guantanamo prisoners represented by people such as Stafford Smith and Reprieve.
“As of 2001 I would never believe that my government would do what they did… subject to what we know about their behaviour in Central and South America [in the 70s and 80s] criminal offences such as torture, kidnapping, …. and, sad to say, as well as murder”

via @SputnikInt
“They said that was a method and means to interrogate people.. to murder them at Bagram Airforce Base”
Binyam Mohamed was subject to torture including being subjected to "razor blades to his genitals". But Mr Mohamed apparently said that the psychological torture was even worse than the razor blades.
The British government actively sought to avoid its legal responsibilities in this case. To the point that the security officials leaked a statement which had been obtained under torture.
Mr Rabbani has had the courage to go public (he is still in custody) with a case brought in part on documentation of torture and abuse revealed by WikiLeaks.
The US response in summary to the ICC prosecutions has been to impose sanctions against 3 members of the ICC.
"What you are doing here today.. you risk sanctions by the US because the investigation into torture could result in sanctions if someone who is not an American national who is seeking to assist torture by the ICC (which is currently investigating war crimes in Afghanistan).
James Lewis QC: Cross-examination of Clive Stafford Smith:

"Not withstanding whether you think it out to be you must be aware that... under the Official Secret Acts 1984 there is no defence in the public interest"
James Lewis QC: Would it surprise you to know that there are no charges against Mr Assange for any publishing any documents mentioned in your statement.

Clive Stafford Smith: No, it wouldn’t.
James Lewis QC: The point he is trying to make “perhaps inelegantly” is that neither the New York Times, Nor Washington Post nor Julian Assange is being prosecuted for the publication of the specific cables mentioned by Stafford Smith.
Lewis QC: The only instances of which the superseding indictment “are explicitly limited to its distribution of documents containing the names of individuals in Afghanistan and around the world”. "So, the only thing he is being charged with are the ones were people’s names are
..being put into the public domain which puts their lives at risk."

The people who are being "outed as it were by WikiLeaks" is the subject of the prosecution says James Lewis QC for the US government.
Clive Stafford Smith: "I think you are very wrong about the nature of how US cases are being prosecuted."


James Lewis QC: I think you're completely wrong Mr Stafford Smith... because the government have explicitly said in the indictment...
... you cannot tell this court how this case is going to be prosecuted."

Clive Stafford Smith: "I think I can actually.."

James Lewis QC "Can you show me in the indictment where it says publishing to the public"
"Counsel with all due respect I have tried many case in America including national security cases..."

James Lewis QC: So you are saying [the US attorney is lying]?

Clive Stafford Smith: "Where is it that he says that we won't have an evidene on the expert of conspiracy?"
Assange: “this is a nonsense” and objecting to the insinuations. Judge: [not verbatim] You must remain silent. Mr Assange ... I think you must consult with your lawyers who can explain the consequences of you continuing to disrupt proceedings.Hearing risen for 10 min
Mr Assange I hope you have now being advised that the witness must be allowed to give evidence and free from interruptions. I understand that during the course of these proceedings [you will hear many things that you disagree with] however if you disrupt a witness.
then it is open to me to continue the proceedings in this absence. I am therefore giving you a clear warning to allow evidence to be given without interruption.
James Lewis QC: No one including Mr Assange has been charged with or is being prosecuted for the publication for the documents identified in your witness statement.
Clive Stafford Smith: .. If you would ask the Assistant Attorney he [99.9%] he will confirm they will call an expert who will detailed “many, many things” not in the indictment. There are probably things he wouldn’t touch on because they would be very embarrassing.
James Lewis QC: [Moving on. Quoting CSS WS] "Little or nothing complained by the authorities would be material which truly threatned national security".

Firstly, have you ever been in a position to classify national security?

Clive Stafford Smith: No, I have not
“It is difficult there are assertions made that the ICC investigation into torture is somehow a threat to national security.
The answer to your question is no I have not sat down and issued a report”
James Lewis QC: Whether information constitutes a national defence information will be litigated at trial and presented to the jury and decided by the jury.
James Lewis QC:

What they have to prove are 3 things:

3rd one is "disclosure of documents must be potentially damaging ot the United States or potentially useful to an enemy of the United States."

So going back to your WS par 36:... It's quite a sweeping statement isn't it?
Clive Stafford Smith:
It is and let me say why I said it. But if you look over the last 19 years of my govt's response to 9/11 beyond torture and assasination the single most damaging thing has been the overclassification of information.
This has harmed us more than anything else. I have seen 100s, and 100s of pages that have been classified as secrete. When I went to see a British national in Guantanamo Bay by Mozzam Begg,
[every single page I wrote about his torture was classified as a threat to national security]. I see every time I go to the secure facility I see documents that show torture is classified
Do you accept that identity of informants could be critical to the national security of the United States?

Clive Stafford Smith: Well it is difficult. [ Not necessarily because Americans reveal it]... [He does accept it isn't proper to reveal identities when its not neccessary]
James Lewis QC:

Quotes from a book which said "Julian didn’t seem concerned" about revealing identities “Well they’re informants he said, so if they get killed they got it coming to them. They deserve it” Mr Assange is alledged to have said according to this book.
James Lewis QC: "He can’t be tried or punished for anything that he is not charged can he?"

Clive Stafford Smith says evidence can be introduced via expert testimony that goes beyond what is alleged in the indictment.

Court adjourned briefly so defence can speak to Mr Assange
Mark Summers QC re-examines Clive Stafford Smith: Mr Assange is charged with [ in part]
Documents relating to national defence -, detainee assessment briefs; cables; Rules of Engagement; and documents containing the names of individuals
in Afghanistan and Iraq and around the world who risked their safety… to persons not entitled to receive them

It has been suggested to you that the only cables subject to the prosecution is the subject of the names. Is that a correct reading of the charges as you ...
... understand them?

Clive Stafford Smith: No, it isn’t, but I think it misses the point about the nature of how the US engages in its prosecutions at any rate.
Mark Summers QC: The Guantanamo Bay documents are you aware that no one alleges that those contained any names of sources?
Clive Stafford Smith: Other than detainees informing by other detainees. But ultimately that was published by the US government at the end anyway.
Mark Summers QC: Are you aware of the role [David Leigh] played in the release of these names in an unredacted manner to the public?
Clive Stafford Smith: [Can’t comment on it]
MS: Do you know Luke Harding?
Clive Stafford Smith: I do.
MS: Do you know he was responsible for...
...fabricating stories in the press?
CSS: [No comment]
Judge: It sounds like you are cross-examining your own witness.
MS: This book was presented by the prosecution.

[No further questions. Court adjourned]
As a reminder regarding the alledged redaction and unredaction of names/sources/informants here is an article I wrote when this was raised during the February hearings.

"Assange and WikiLeaks Redacted Documents and Protected Sources - Defence Team"…
See also this clip from the doc "Risk" whowing Ms Harrison & Mr Assange contacting the US State Department to let them know that the names that they redacted are going to be released as a result of the discovery of a passcode in the book by Leigh & Harding
Exclusive Interview w/: @CliveSSmith (@Reprieve) summaries key aspects of his testimony today at Old Bailey noting the significance of the role of WikiLeaks disclosures revealing US war crimes.

via @SputnikInt
Exclusive Interview w/: @CliveSSmith (@Reprieve) summaries key aspects of his testimony today at Old Bailey noting the significance of the role of WikiLeaks disclosures revealing US war crimes.

via @SputnikInt
James Lewis QC, speaking to Judge Baraitser has sought to repeat his assertion that the case against Assange focuses on his publishing of documents which revealed the identities of sources. Mark Summers QC responded noting his clear disagreement.
MS QC: “It is a contentious issue” and just because Mr Lewis says this is what the case is about “doesn’t make it true”
JL QC: “I’m telling you what the case is. It is our case”
Judge: “Not something which requires determination by me now”
JL QC: “But it is not a matter which is open to dispute. Period.”
Judge: “If it is, no doubt, it will be raised in due course”.

[Professor Feldstein is now being secured to continue his testimony from yesterday]
WikiLeaks editor-in-chief @khrafnsson gives his view of this morning's hearing during which US prosecutors sought to undermine the relevance of Clive Stafford Smith's testimony.
Clive Stafford Smith explains the disconnect between what US representative was saying about the focus of the prosecution's case against #Assange & his experience of conspiracy cases in practice.

Via @SputnikInt
Professor Mark Feldstein We use all kinds of techniques to try and help protect sources including removing fingerprints, digital and otherwise. These are the kinds of things investigative reporters do all the time, particularly in national security cases.
"We are careful to remain within the bounds of the law but it is essential that we protect sources in this way."

Mark Summers QC: It is alledged that WikiLeaks publications were criminal because they disclosed names of individuals. How do you respond?
It is easy to assert that there will be harm from national security stories that will be published. It is almost impossible to refute. Scepticism is warranted. A report which found scant evidence of national security being harmed by national security disclosures.
So often we find that national security is used as a shield to hide incompetence, misconduct and even political vendettas.
Professor Mark Feldstein is now explaining that according to public accounts Obama Admin came to the conclusion “The problem the department has always had in investigating Julian Assange is there is no way to
prosecute him for publishing information without the same theory being
applied to journalists,”said Matthew Miller, former spokesman for the Obama Justice Department. “And if you’re not going to prosecute journalists for publishing classified information, which the department is not,
then there is no way to prosecute Assange.”
This attitude changed under Trump Prof Feldstein says:
Comey suggested “putting a head on a pike as a message” and Trump recommended “putting reporters in jail.” Three days later, he instructed his attorney general to investigate “criminal leaks” of “fake”
news reports that had embarrassed the White House. According to press accounts, the new administration soon “unleashed an aggressive campaign” against Assange.

CIA director Mike Pompeo publicly attacked WikiLeaks as a “hostile intelligence service” that uses the First
Amendment to “shield” himself from “justice.” In private, he briefed members of Congress on a bold counterintelligence operation the agency was conducting that included the possible use of informants, penetrating overseas computers, and even trying to directly “disrupt” WiliLeaks
, a move that made some lawmakers uncomfortable
The new leaders at the Justice Department dismissed their predecessors’ interpretation that Assange was legally indistinguishable from a journalist and reportedly began
“pressuring” their prosecutors to outline an array of potential criminal charges against him,
including espionage. Once again, career professionals were said to be “skeptical” because of the
First Amendment issues involved and a “vigorous debate” ensued. Two prosecutors involved in
the case, James Trump and Daniel Grooms, reportedly argued against charging Assange.
But in April of 2019, Assange was arrested in London—even though “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case.” [From Prof Feldstein's Witness Statement]
James Lewis QC: Is it not clear.. that the govt investigation into Mr Assange continued right through the Obama administration into the Trump admin until Mr Assange was out of the Ecuadorian embassy and could be indicted.
Prof Feldstein:

I understand that the grand jury was ongoing as I covered it as a reporter no as a lawyer.
James Lewis QC: So why then as an unbiased expert did you not include that in your report?

Professor Feldstein: That's a good question. I don't know, no doubt there are things I would do differently if I had.
[there was some interruption by J Lewis QC and judge said she had to let him finish]

JL QC: is now suggesting the reason Prof Feldstein did not incude a WaPo article in his second report (though he did refer to it in a footnote) is that there was something in it he didn't want..
In your report the only paragraphs you quote are the two middle paragraphs.. what you don’t quote is the second paragraph which says that “the official decision has not been made… unless he is implicated in criminal activity other than releasing online military.. documents”
This paragraph and another showing skepticism is in James Lewis QC go against the argument in your report regarding the Obama admin decision to prosecute did not prosecute.

Why did you not include those paragraphs if you are an unbiased expert?
We knew no charges had been brough that they had ultimately decided not to bring charges due to 1st amendment considerations and that was the focus of my report.
James Lewis QC:

What was also in the public domain was "Assange's arguments are contradicted by judicial findings made int he US. On March 4... US District Judge Barbara... was persuaded that there was ongoing investigation".

Why didn't you mention that in your report?
There was another finding in May 2016 where a District Judge Meta found no reason to doubt there was an ongoing investigation of individuals other than Chelsea Manning. Would it not have been fair in an unbiased report to put that in?
Prof Feldstein: It could havev been included. But don't forget this is in 2015 and 2016 before the indictment was issued and the reports came out that there was no new significant information in it.
James Lewis QC: Barry J Pollock, Mr Assange's US lawyer, said [not verbatim] 'they have not informed us about closing the inestigation'.
Prof Feldstein: As I say I know that grand juries often continue their investigation but in 2017 we know from the prosecutors inside that there was no significant new evidence

James Lewis QC: Quotes a tweet from WikiLeaks.
Prof F. I never said Obama admin closed the case nor ended the investigation, nor anything like that. I said the Obama amdinistration decided not to prosecute on First Amendment grounds.
JL QC: 8 days before the enter of the current admin Wikileaks tweeted that Assange would agree to US extradition to the US in exchange of clemency for Chelsea Manning.

Doesn't this indicate that Assange didn't belive Obama had decided not to prosecute?

Prof Feldstein: Agreed.
Prof Feldstein: I do not see how these tweets about what Assange or WikiLeaks did or did not think about the state of the grand jury sheds much light on the situation. I think whats more credible are the people who are more close to it and engaged with it.
James Lewis QC: Finally, attached is a letter from Barry Pollock, and it finishes ... "despite the fact that the dept has continued to confirm... that it is continuing its investigation into Assange..." Shouldn't this have been included?
Prof Feldstein: I don't necc agree
I'm not a lawyer but it would be kept open for various reasons.. "mostly in the hope that new evidene would come in". I never said that the Obama administration liked Assange. Quite to the contrary they wanted to prosecute him.
Would it be fair, that the most you could say is that there was an intimation that he would not be prosecuted for the publication for passibely received information but not where he conspired with Chelsea Manning to obtain that information by hacking?

I wouldn't necc. infer that
Could anyone in the defence team in good faith now that you have seen those documents say that the Obama adminstration decided not to prosecute Mr Assange on 1st admin grounds?

I don't know what the defence team think?
James Lewis QC is seeking to distinguish the actions of New York Times which "passiely" received classified information and Julian Assange who alledgedly "aided and abetted" Mr Chelsea Manning in stealing classified data.
He is also seeking to paint a "quantitively different" picture of what the NYT did by noting David Leigh & Luke Harding alleged position on redacting sources names compared to that of Julian Assange (as noted earlier in this thread)
James Lewis QC is also saying that there is a "positive requirement" for the USG to prove harm or damage to the US govt and is suggesting to Prof Feldstein that "surely2 that is a matter of fact for a jury to decide.
Mark Lewis and Ed Fitzgerald re-examined the professor. I am writing up my piece regarding earlier today so did not tweet out this re-examination. In summary they challenged the assertions made by the prosecution. Court has risen for the day.
EXCLUSIVE: 'A Danger for Justice' - #Assange Defence Expert Explains How US Conspiracy Trials Work

My interview w/ Clive Stafford Smith

Final word goes to WikiLeaks editor-in-chief Kristinn Hrafnsson summarising some of his thoughts about this afternoon's testimony from Professor Mark Feldstein.


via @SputnikInt
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