Thread by @kgosztola

The second day of proceedings in the trial portion of WikiLeaks founder Julian Assange's extradition hearing will begin shortly. I'll have live updates at this thread.

Though from yesterday, this is a comprehensive list from Professor Mark Feldstein, witness who testified on Day 1 about frequency of published leaks in journalism.

The list includes over 20 examples from 1844-2018. #Assange

Feldstein declared in conclusion of statement to court, "[Trump] admin has already won partial victory."

And, "An informed public depends on free
& independent press that can serve as check on governmental abuse of power—kinds of abuses that WikiLeaks made public." #Assange

We are starting 30 minutes late so Julian Assange can meet with his defense.

Witnesses likely to testify on Day 2 are Patrick Cockburn, Nicolas Hager, and Daniel Ellsberg. Defense also may reconnect with Feldstein to finish testimony disrupted by tech problems on Day 1.

The defense's first witness of Day 2 is Clive Stafford Smith, a British attorney licensed to practice in the United States who was a legal director for Reprieve in the UK.

(*Not previously expected to take stand today.)

Stafford Smith dealt with US drone killings in Pakistan as revealed in US State Embassy cables published by WikiLeaks. They were used in litigation. #Assange

Stafford Smith says litigation against drone strikes would've been very different and difficult without WikiLeaks disclosures. Exposed hypocrisy of Pakistani PM on drones. #Assange

Julian Assange interrupts James Lewis' cross-exam of Clive Stafford Smith to say, "This is nonsense," as Lewis continues to insist none of the documents Stafford Smith talked about which WikiLeaks published are part of the case against Assange

I'll go back now while we're on 10-min break to catch this thread up to where we're at in proceedings. #Assange

Summers asked Stafford Smith about the JPEL list that WikiLeaks published. It contains names of "targets" in Pakistan and Afghanistan targeted in all sorts of ways. "Fascinating document that has actually received far too little attention" #Assange

Summers spent quite a bit of time on Guantanamo due to the fact that Stafford Smith has represented Gitmo prisoners. He commented on the Detainee Assessment Briefs, or Gitmo Files, saying it was frustrating release for him. #Assange

As Stafford Smith noted, the Gitmo Files were filled with unproven allegations against prisoners. He had hoped the leaked documents would contain the information he knows about clients, which he can't share since it is kept classified. #Assange

Stafford Smith testified on the core group of informants at Gitmo that were exposed in the Gitmo Files and how they justified the continued detention of numerous prisoners. Also, he spoke about crimes of torture, kidnapping, or rendition against his own clients. #Assange

Stafford Smith was asked about the role WikiLeaks disclosures played in cases involving clients who were tortured. He mentioned the cables that reflected how detainees were rounded up and taken different places. #Assange

Ahmed Rabbani is a Gitmo prisoner who Stafford Smith represents. He said documentation of torture and abuse from WikiLeaks formed part of the basis for an application to the International Criminal Court (ICC) to hear his complaints. #Assange

Trump administration sanctions against ICC officials came up. Stafford Smith suggested that what Summers was doing today would probably qualify him for sanctions because WikiLeaks has exposed information and supported investigations of US torture. #Assange

James Lewis cross-examined Stafford Smith for prosecution. One of first questions was if Stafford Smith was aware of Official Secrets Act and that it may not support publication.

Stafford Smith responded I know that's not the law in America #Assange

Lewis belabored following over and over again, and it ultimately led to Assange's interruption:

Would it surprise you to know there are no charges against Assange for publishing to others or publishing on internet those cables to internet or any of material you mentioned?

Lewis specifically mentioned this cable, which contained some of the more damning revelations. It exposed the US effort to thwart accountability for rendition and torture against Khaled El-Masri, German citizen. #Assange wikileaks.org/plusd/cables/0…

Lewis did not raise to talk about its contents. He made the point that New York Times and Washington Post published. Then eventually insisted neither NYT, WaPo, or Assange are being charged for publishing this cable

Stafford Smith said to Lewis, "I think you’re very wrong on the way cases are prosecuted in the US."

Lewis kept maintaining only cables with names of informants will surface in a US trial. But that doesn't mean uncharged documents won't factor into court proceedings. #Assange

Stafford Smith made the point that an expert witness would likely be certified in a US trial against Assange to give some history of a terrorist group. Or even more broadly terrorism. Since US position is torture revelations can fuel terrorism, WL docs he spoke about are relevant

It was at this particular point that Assange could no longer contain himself and shouted out, "This is nonsense," and the court stopped proceedings. Judge Baraitser then formally warned him that he may be removed from the courtroom if it happens again

When Lewis resumed his cross-exam of Stafford Smith, he kept at the point about documents with named informants and then he emphasized that Stafford Smith has never been granted the authority to make classification decisions. #Assange

The rebuttal portion of Stafford Smith's cross-exam devolved into legal arguments over what is charged in indictment. It was mostly brought on by Lewis, and it put Stafford Smith in a rather uncomfortable position cause it's not like he's an expert on it #Assange

Assange's legal team tried to show through Stafford Smith that published documents with details of torture, rendition, etc, were in public interest. And we saw the prosecution's strategy will be to say but Assange isn't being criminalized for releasing *those* documents

FWIW, Chelsea Manning was only charged with specific documents & not all of over half million documents that she disclosed to WikiLeaks. But that doesn't mean everything in them went ignored by military prosecutors cause they weren't charged documents. #Assange

The witnesses scheduled before Day 2 started clearly changed. They remain on the list, but it seems unlikely that Cockburn, Ellsberg, and Hager will all testify this afternoon. And Stafford Smith wasn't originally listed for today. #Assange

Technical difficulties. Joined proceedings as they were in session. James Lewis is still livid with Assange's legal team because they insist on focusing on documents that revealed torture and war crimes.

Judge asked if the differences over how to interpret the indictment need to be resolved by her at this moment. Lewis said no but reiterated his belief the defense is indisputably wrong about how US is prosecuting Assange. #Assange

We're going to try and complete witness testimony from Professor Mark Feldstein, who was cut off yesterday as a result of tech problems. #Assange

I got the name incorrect here and apologize. It's Abdul Rabbani.

Mark Summers, Assange attorney, asks Feldstein about the way in which US is criminalizing the "soliciting" of information by journalists.

Feldstein responds that the indictment paints news gathering in a very nefarious light

Feldstein made it clear in statement to court that soliciting information is "not only consistent with standard journalistic practice, they are its lifeblood, especially for investigative or national security reporters." He shared his personal record of soliciting info. #Assange

Lewis somewhat challenges whether Feldstein is an expert witness on journalism.

Note: On Day 1, he suggested Feldstein was not an expert qualified to give testimony. #Assange

Lewis objected to the fact that Feldstein didn't note the grand jury remained empaneled under Obama so Trump could pursue charges. Feldstein conceded that was an oversight. #Assange

Lewis invokes statement by Kristinn Hrafnsson, who is now WikiLeaks editor-in-chief, to undermine assertion that Obama admin chose not to bring charges.

He said WL was skeptical “short of an open, official, formal confirmation that US govt" wouldn't prosecute. #Assange

Lewis quotes Barry Pollack, Assange's US lawyer, who said they were not informed the US would not pursue prosecution.

Feldstein replies that he's not sure Assange's attorneys would ever be convinced US wouldn't pursue charges

Feldstein is trying to get the prosecutor to understand that he never said the investigation was closed. He merely referred to news reports that showed Obama DOJ had backed off charging Assange. Still, Lewis thinks this undermines Feldstein's credibility

Lewis wants to know why tweets from Assange or WikiLeaks showing their skepticism weren't included.

I'm terribly confused. Feldstein, defense witness, stuck to sources that might have knowledge in DOJ. And yet excluding Assange and WikiLeaks statements is bias?

Feldstein says "I never said Obama admin liked Assange. In fact, quite the opposite. They wanted to prosecute him."

But First Amendment got in the way

Lewis isn't hiding his hostility. He suggests rhetorically that Feldstein's "diatribe" against Trump—in context of Assange case—was "odious."

Feldstein asks for bathroom break and mercifully gives us all a break from the prosecutor's "Journalists Are Not Above the Law" lecture #Assange

Lewis asked Feldstein if he agreed there's a material difference between indictment against Assange and how New York Times handled publications.

Feldstein answered no, but added that certainly he wouldn't treat NYT and Assange as similar entities.

Feldstein seems to be drifting. Redirect by Assange's legal team will be important, as Lewis' line of questioning has had some effect.

Lewis gets Feldstein to agree that WikiLeaks should not have published unredacted diplomatic cables.

Kind of undermines the earlier questions that accused Feldstein of bias. #Assange

Lewis: "Agree that it is proper for US government or any government to keep secrets?"

Ah yes, this favorite canard of national security agents. #Assange

Lewis incorrectly suggests US will have to prove harm, and Feldstein politely says he's no expert but his basic reading of the Espionage Act statute suggests government only has to prove someone had "reason to believe." #Assange

Seeing how Feldstein cannot answer any of these questions about the Assange case, I'm afraid Day 2 of proceedings have turned into an infomercial for US prosecutors.

Feldstein has said multiple times he is not a factual witness on constitutional law. The prosecution continues to insist Feldstein made assertions that he did not. #Assange

Defense comes back and asks if any act at all that encourages, asks, or assists government official in disclosure of classified information is criminal and prosecutable.

Feldstein: Not at all. #Assange

Summers brought up the Pentagon Papers. Lewis objected, saying this was not part of initial cross-exam by Assange's lawyer. Baraitser told prosecutor he opened door for this when he discussed extent to which assisting a source is a crime

Summers asked Feldstein, if the "hacking" Lewis referred to had been described as conspiracy to crack pass code hash to make it more difficult to identify a source, would he have answered differently?

Feldstein: Conspiracy is a very scary term. #Assange

Feldstein was asked if he knew about the publication of unredacted cables and that they were on the internet before WikiLeaks published. He said he was aware this was an issue of fact contention. Summers said it actually is not #Assange

Feldstein's argument Assange case is politically motivated:

-Unprecedented nature of charges
-Rejected by Obama admin
-Framing of superseding indictment
-Trump’s known vitriol toward the press

Court adjourned, and I will be live with a video report on Day 2 of proceedings in a moment:

#Assange

DAY 2 REPORT:

In extradition hearing, Julian Assange's legal team focuses on US torture and war crimes exposed by WikiLeaks shadowproof.com/2020/09/08/ass…