Thread by @DefenseAssange

Day 2 of Julian Assange's resumed extradition hearing will begin 30 minutes later today (10:30am London time) as defense counsel speaks to Julian before court gets started. #AssangeCase

Later this afternoon we'll have continued testimony from journalism professor Mark Feldman, who yesterday testified to how essential leaks are to journalism and the fact that the First Amendment protects publishing: assangedefense.org/live-blog-entr…

See Professor Feldstein's submitted witness statement here: defend.wikileaks.org/wp-content/upl… #AsangeCase

Due to judge's ruling on timing we may see changes in witness schedule. On the stand is Reprieve's Clive Stafford-Smith. #AssangeCase

Stafford-Smith is testifying to the utility of WikiLeaks' releases, using published cables in legal cases. #AssangeCase

"Did the cables show US attempts to block investigations in Pakistan?" "They did" #AssangeCase

Stafford Smith on the importance of WikiLeaks material in litigation in Pakistan in relation to drone strikes and the “seachange” in attitudes towards US drone strikes there #AssangeCase

Stafford-Smith: “Speaking as a US citizen, it is incredibly important that it stopped… I feel that my country’s reputation was undermined and criminal offenses were taking place” #AssangeCase

“The litigation in Pakistan would have been very very difficult and different” if it weren’t for WikiLeaks disclosures. #AssangeCase

On what WikiLeaks cables showed

“The most disturbing thing is that the assassination program with respect to terrorists leaked over to narcotics….they were targeting people for death for their involvement in drug trade because it was seen as funding terrorism. I could go on…”

Stafford-Smith: Assassination programs “are not only unlawful but morally and ethically reprehensible”

For journalists being targeted in war zones by the US – it is “deeply troubling, a monumental criminal offense" #AssangeCase

Stafford-Smith now discussing the Guantanamo Bay detainee assessment briefs #AssangeCase

The complicated utility of the GTMO docs: on one hand, these are the government's unproven allegations about detainees, we don't want them smeared without due process. On the other hand, useful for the public to know this is what the govt is arguing. #AssangeCase

“I found it immensely frustrating that the world didn't know about the unreliability of the evidence against my clients…what others have done by taking the WikiLeaks documents..." #AssangeCase

"...and I credit here Andy Worthington, is to analyze the number of times certain informants were the named basis for detaining prisoners.” #AssangeCase

“My experience with Guantanamo is that if we can open it up to public inspection to see what is really happening there, then they will close it down because it's just not what it is advertised as.” #AssangeCase

“I say this more in sadness than in anger. Before 2001, I would never have believed that my government would do what it did. We are talking about criminal offenses of torture, kidnapping, rendition, holding people without the rule of law and sad to say, murder.” #AssangeCase

On torture: “I have had a project of comparing the methodologies that my government uses on my clients to what they used in Spanish Inquisition…hanging people by the wrist while their shoulders slowly dislocate….the first thing I do is to apologize” #AssangeCase

Now the prosecution begins cross-examination of Clive Stafford-Smith #AssangeCase

US: I think your perspective is that the WikiLeaks publications were in the public interest?

"I do"

At end of defense questioning: Clive Stafford-Smith says WikiLeaks and those associated could be subjected to US sanctions under the new ICC sanctions regime because of the role Wikileaks has played in the accountability efforts of US officials involved in war crimes #AssangeCase

US prosecutor trying to show that the cables referenced in Stafford-Smith's statement aren't charged. That the New York Times published some of them and isn't being prosecuted for the publication of the cables he referenced #AssangeCase

If the NYT, WaPo, and Assange aren't being prosecuted for these cables, how are they relevant to this case?

I think it's all relevant here-- Prosecutor interrupts him to show him indictment and exactly which cables are charged

#AssangeCase

US: the only ones he's been charged with are those in which people are named and put people in danger

Clive: I think you're very wrong on the way American courts prosecute #AssangeCase

Prosecutor and Stafford-Smith now arguing about whether publication is relevant in terrorism prosecutions. Smith: it's just not how these cases are tried #AssangeCase

Defense points out how the prosecution is incorrectly stating that there is no reference to publishing – pointing out that he is in fact being charged for “communicating” classified information. #AssangeCase

Assange begins speaking, "This is nonsense" [then hard to hear], Judge instructs him to stop speaking immediately #AssangeCase

10 minute recess, judge encourages Assange to speak to his counsel #AssangeCase

See Clive Stafford-Smith's witness submission here: defend.wikileaks.org/wp-content/upl…

All witness submissions will be uploaded here: defend.wikileaks.org/extradition-wi… #AssangeCase

Julian said, “Apparently my role is to sit here and legitimate what is delegitimate by proxy” before the judge cut him off #AssangeCase

Court resumes, judge is warning Assange not to speak again, don't impede witness testimony #AssangeCase

Prosecution resumes speaking slowly to Stafford-Smith trying to get him to concede that Assange not charged with documents referenced in the witness statement #AssangeCase

Stafford-Smith: he may not be, but there are all sorts of things not explicitly included in the indictment, will come up anyway #AssangeCase

Judge to Julian: “I understand of course you will hear things most likely many things that you do not like and you would like to intervene but it is not your role. Your remaining n court is something the court would wish for. But the court could proceed without you” #AssangeCase

More debate between prosecutor and Stafford-Smith, about informants named in cables. Stafford-Smith saying that actually the US govt names some of these #AssangeCase

Stafford-Smith reads from David Leigh on Assange & informants. "So do you agree with Assange's approach on informants or David Leigh's" Smith: it's complicated, but I agree they should be protected #AssangeCase

Prosecutor still on the point that the charges are only for cables naming names, says he can't be charged for things not in indictment. Smith doesn't agree with this characterization #AssangeCase

Clive Stafford-Smith on reference to David Leigh's book: “I would not judge anyone by what is written in a book”

Back after 10 min. recess. Defense questioning Stafford-Smith again

The cables revealed torture, rendition, killings. How would you characterize these vis-a-vis the public interest?

Stafford-Smith: To me to keep these secret is "utterly, utterly mad"

Defense establishing the utility of the releases in addition to the public interest, actions in disclosures are being investigated as war crimes by the ICC

Defense also challenging prosecution's claim that Assange only charged with publishing names -- see the references to merely obtaining documents, charged with *willfully communicating* GTMO docs, rules of engagement, cables

Point is that all of these releases are actually part of the charges -- even if specific charges only deal with certain cables

Stafford-Smith again says the UK prosecutors (acting on behalf of US) misunderstand how the US charges these cases

Defense hammers this home: these charges deal with "obtaining the cables", "obtaining and receiving the cables", "disclosure of the cables" etc -- not just a few cables with names, these are *all* captured in other charges. Only the pure publication charges deal with names

Defense also makes the point that only now, as of 2nd superseding indictment in June 2020, are the charges written that way

Defense establishing also that the Guantanamo detainee assessment briefs only name detainees, not any other informants

End of Stafford-Smith's testimony. Recess now. Professor Feldstein will testify again after lunch. #AssangeCase

Remote video to the court is back. Prosecution and defense arguing about what's in the indictment, and what the US case is

Prosecution claims that the defense had “muddied the water” on the indictment and that it is his “duty” to make clear to Assange what he has been charged with, restates that "Assange not charged with publication of any documents except those which put people at risk.”

Defense: It is our argument that that is not your case and this is not true.

Prosecution: It is not for them to say that is not our case. If necessary I will give an undertaking from the USA to this effect.

https://twitter.com/DEAcampaign/status/1303319550772027392

Brief recess, possibly to deal with videolink issues. #AssangeCase

Professor Mark Feldstein is on videolink now, to resume testimony. Sorting out his audio-video. See the beginning of his testimony at the end of yesterday's report: assangedefense.org/live-blog-entr… and again see his witness statement defend.wikileaks.org/wp-content/upl…

Defense questioning Feldstein again, picking up where they left off yesterday at failed presidential attempts to prosecute publication of classified information. #AssangeCase

Feldstein discussed the case of Jack Anderson, whom the Nixon administration harassed. From his statement:

Now talking about soliciting information as "standard journalistic behavior." When teaching journalism he talks about asking sources for evidence, seeking information, working with them to find documents that are newsworthy, directing them as to what to find out, it's all routine

Have you solicited classified information?

Yeah, I didn't publish a lot of classified documents but my entire career virtually was soliciting and publishing secret information

"Trying to protect your source is a journalistic obligation" -- Prof. Mark Feldstein.

We use all kinds of techniques to protect them, anonymity, payphones, encryption, removing fingerprints from documents, reporters do this all the time

This is something we teach. We're careful to stay within the bounds of the law but it's essential that we protect our sources in this way. #AssangeCase

What do you say about allegations that publishing names causes harm? Easy for the government to claim possible harm, impossible to prove. "Scant evidence that national security is harmed" by government disclosures. National security is used as a shield to hide bad actions

Academic studies have shown the exaggeration of national security harm.

When the Pentagon Papers were published, the government went to court and said these documents exposed war plans, ID'd CIA agents, could prolong the war.

Told the court it waould cause immediate and irreparable harm. The govt lawyer later claimed he saw no harm from the release. Then said 6-7 paragraphs were maybe dangerous, but they were already published.

What's the motive of lying at the time? We have Nixon on tape with his attorney general, instructing him to smear the NYT, cast the NYT as doing something disloyal to the country.

Ed Fitzgerald now questioning Feldstein for the defense. #AssangeCase

Asks Feldstein why there was no prosecution under the Obama Admin if these crimes took place in 2010. Feldstein: the DOJ decided in 2013, they couldn't do that because of the precedents involved. Would be unconstitutional under the First Amendment

Feldstein references this 2013 Washington Post article on the Obama admin decision not to prosecute Assange: washingtonpost.com/world/national…

Now on how "everything changed" under the Trump administration, change in attitude with regards to the press. In 2017, FBI wanted a "head on a pike", Trump wanted journalists in jail, Pompeo called WikiLeaks a non-state hostile intelligence agency, Sessions made arrest a priority

Recounting history of Assange charged once and then superseding indictment. Referring to 2 prosecutors by name who opposed trying Assange with the Espionage Act.

Referencing this 2019 article: "Some federal prosecutors disagreed with decision to charge Assange under Espionage Act" washingtonpost.com/world/national…

James Trump and Daniel Grooms opposed the prosecution of Assange under the Espionage ct

The prosecution has said these are "just newspaper reports", but Feldstein notes how well-sourced this article is, says that "news accounts are often more reliable than what is put out by the White House or other government agencies."

James Lewis cross-examining Feldstein for the prosecution now. #AssangeCase

Prosecution questioning Feldstein, says please only answer the question and do not give a speech, try and be concise

Prosecution: you've said you're an expert witness. What do criminal procedures say in relation to experts? UK rules for expert witnesses differ from US rules

Prosecution: "right, [in the UK] it's got to be unbiased evidence."

You do not have a legal qualification do you? That's correct, and I've tried to be careful not to render a legal interpretation.

Have you studied indictment? Yes but not most recent one that came this summer.

You'll give unbiased evidence? I'll do my best

One of the planks of your opinion is that the Obama admin decided not to publish in 2013? Yes.

You say in July report that reporting cited by NYT/WaPo is today the only public source of information about behind the scenes discussions about whether to prosecute? That's correct

Is it not clear that the investigation continued from the Obama admin through the Trump admin? I understand that the grand jury was ongoing. As reporter I know that is often common, but they didn't indict and we know why

Prosecution tries again: Isn't it clear that the investigation continued through the Obama admin to the Trump admin? With grand jury yes.

Why not in your report? I was edited for length. But proof is in the pudding, they did not indict.

"We don't need a speech professor"

Why didn't you include the Washington Post report? I wrote this back in December, I don't claim to be infallible, it's in the footnotes.

Prosecution: maybe you didn't want anyone to read it?

This article is clearly referenced on page 18, footnote 82 in his witness statement.

Article: washingtonpost.com/world/national…

Witness statement: defend.wikileaks.org/wp-content/upl…

Prosecution saying Feldstein quotes certain paragraphs but not others, including a paragraph saying the investigation isn't closed

Quotes @khrafnsson in that article saying WikiLeaks wasn't convinced there'd be no charges -- trying to paint Feldstein as biased for not including that

Again Feldstein says the "proof is in the pudding," that the Obama admin did not bring charges, would cause a First Amendment problem, and no new info that the DOJ obtained that hadn't been there earlier.

Prosecution is arguing that even though Obama admin didn't prosecute, the investigation was ongoing across administrations

Why not include that? I never said there wasn't an ongoing investigation. I said Obama admin decided not to prosecute on First Amendment grounds and prosecutors argued against it.

Prosec: wouldn't it have been fair to put in your report that there was an ongoing investigation

Prosec: Assange's lawyer Barry Pollack said he hadn't been told they were not going to prosecute. Wouldn't it have been fair to put that in your report?

Lot of things could be put in or kept out. I'm not sure Assange or his lawyers would ever be convinced there'd be no charges

Prosec: doesn't this WL tweet show they thought he could be charged?

https://twitter.com/wikileaks/status/819630102787059713?s=21

Feldstein: I never said the Obama admin closed the investigation, I said they decided not to charge based on First Amendment grounds.

Feldstein: I don't see how what WL or Assange thought about charges actually sheds light on it. What's more credible to me is those actually close to the investigation who decided not to prosecute

Asks why would investigation be ongoing if no charges? Potentially for co-conspirators, or hoping more evidence would come in. I've never said the Obama admin liked Assange. They wanted to prosecute. It was the First Amendment that stopped them. #AssangeCase

Could anyone on the defense team credibly say that the Obama admin decided not to prosecute? I know defense lawyers try to protect their clients, they're concerned and protective

If there was no decision not to prosecute, and the investigation continued under Trump, doesn't the diatribe against Trump become otiose?

Feldstein: That's a very confusing question, a couple of double negatives...

We'll leave it

Goes back to Feldstein's reference to "The New York Times problem". Feldstein: that's my paraphrasing of what seems rather explicit

Prosecution trying to paint the New York Times as different, it would receive documents "passively". Feldstein doesn't understand what's being asked of him.

Prosec: if you simply receive documents, the First Amendment isn't used. But if journalist breaks the law, not immune from the law. Agree?

Yes, but it's a slippery slope as to what constitutes soliciting -- sorry, you wanted yes or no, yes. Journalists not above the law.

You'd agree journalist has no immunity from a burglary charge or a theft charge simply because he wants to publish info stolen?

Feldstein: I'm not a lawyer, can't give you a legal answer, but yes not immune from the law

Feldstein asks for a bathroom break. 10-minute recess coming. Judge says: you're still under oath, can't talk to anyone about this during these 10 minutes. Understood. #AssangeCase

Back. James Lewis for prosecution returns to this idea that journalists are not above the law, don't have First Amendment right to steal or unlawfully obtain information. Asks Feldstein if he agrees it's settled they don't have 1A right to steal? Yes

Lewis now turns to "computer hacking." Is a journalist entitled to hack into government computers to get classified info? No

Know of journalists in prison in the UK for hacking telephones? Yes

So we agree in the US and UK journalist can't commit crime to get govt info? yes

Now did [Chelsea] Manning steal info? Not a lawyer but was convicted, yes

So no dispute that govt insiders can be prosecuted for leaking classified info? Yes they have been, with increasing--

Prosecution interrupts: and if conspired with Manning, did Assange commit a crime?

Feldstein: it depends on the details

Prosecution: you agree US courts have upheld such prosecutions? And you've agreed 3rd parties not allowed to help govt insiders break the law in obtaining classified info?

Feldstein: break the law, no. "Help" is where we get into squishy areas about what exactly was done

Going back to "New York Times problem." No allegation that the NYT conspired with [Chelsea] Manning to break into system to get info?

Feldstein: not that I'm aware of no

So difference between New York Times and Assange? Yes

(bracketing Chelsea where prosec deadnames Manning)

So looking at publication counts -- you see how those publication charges only include documents where names were named in disclosures?

Feldstein: I understand that's what's in the indictment yes

Prosecution goes back to other news orgs decrying publication of unredacted State Dept cables in 2011. Do you agree with their sentiments?

Feldstein: I do not know what happened, there are conflicting accounts of how those releases happened, I'm not a fact witness

Do you think all the material should have been released unredacted?

Feldstein: No

So difference between "NYT problem" and what Assange is indicted with? Absolutely

Prosec quotes David Leigh book again, lists Leigh's CV. Talks about how publishing names puts people in danger. Agree with Leigh they should be redacted or Assange they should just be published?

Feldstein: They should not have been published

Prosec still on this, would a responsible journalist publish this, hypothetically. Answer: no. #AssangeCase

Now onto Espionage Act, govt prosecution must prove info would be damaging to the US. Would you agree that's a pretty good safeguard that simple things that are merely embarrassing are vetted by a jury?

You've said national security is used as a shield to cover embarrassment? Yes, obviously not always, but often enough

Positive requirement to prove harm? Not embarrassment, but harm? And would you agree that's a fair hurdle that the govt must leap in order to secure a conviction under national security?

Feldstein: problem with yes or no answer is the indictment brought under the Espionage Act..

Which has wording that includes "reason to believe" could cause harm, don't have to actually prove harm

Prosec: ok we'll leave it. Final point. You say this is a politically motivated prosecution. Have you read affidavits and requests, and agree there is a factual and evidentiary basis in this case? Not in a position to judge.

But accept a grand jury has found probable cause? Yes, that's the definition of an indictment, but I don't know that it's true.

Re: whether this is a "politically motivated prosecution," talking about who makes the decision to prosecute. Feldstein says he understands in this kind of case it "goes all the way to the top." Prosecution: Prosecutors must be objective, personal opinion can't come in

Doesn't that undermine, you pick out of the ether, this must be a politically motivated prosecution?

No - you've just said it's not allowed to be motivated by politics. It would be naive to think that's always the case. I can explain why I think it's political if you'll let me.

Prosec: do you accept that to obtain indictment, prosecutors must show evidence to Grand Jury and GJ must determine probable cause? Yes

When you say politically motivated, are you saying it's trumped-up and there's no evidence, or are you saying there is evidence and we'd like to see him convicted? Don't understand the question

Do you think Trump ordered this? We won't know about that until it's recorded in history

So you don't know do you? I wasn't there, but I can tell you why I think it's politically motivated if you want.

So you're speculating but you've got no evidence?

Feldstein: given the unprecedented nature of this prosecution, the Obama admin deciding not to prosecute, the indictment could have been far narrower, given Trump's statements, I think this is "rife with political motives."

Prosecution alleging links between Trump and WikiLeaks, trying to undermine idea that Trump wanted this prosecution / that it's politically motivated. Feldstein concludes that Trump just wanting to distract is not credible in the way that political motivation is not

Defense now with final questioning of Feldstein. On differences or lack thereof between WL and NYT. Is it your understanding that any act that assists/encourages govt official in getting info is criminal?

Feldstein: not at all

Is it your experience that journalists do ask govt employees for classified info?

Absolutely, it's routine for journalists covering that beat try to get info including classified info.

That they solicit that kind of info? Yes, more than solicit

Ever come across that conduct being described as criminal before? Prosecution objects that questions are leading

Judge says it's on the edge of leading. Defense rephrase. Aware of any prior prosecution for that kind of conduct? Absolutely not, no. In my research and knowledge, none

Before this case could you have predicted this kind of conduct would be prosecuted?

Feldstein: no, and it's a very chilling prospect, because to criminalize soliciting like that is to criminalize journalism itself. #AssangeCase

What's your understanding of New York times working with Ellsberg in publishing Pentagon Papers? Very active in obtaining that info.

How active? Prosecution objects, we didn't bring up Pentagon Papers. Judge allows question

Feldstein: believe the reporter had a key to the room where that info was kept. You should ask Ellsberg, but clearly very active. We journalists are not passive stenographers. To suggest receiving anonymously in the mail is the only way, is wrong.

And no charges against the NYT? No.

What about journalists paying for this kind of info? Ther are tabloid newspaper that pay sources for information. Generally frowned upon but mainstream news media. Sometimes other ways, but yes it does happen.

Is that conduct prosecuted? No

Reporters are nonetheless not above the law? Correct.

Obtaining by hacking isn't protected by the First Amendment? Correct

What if the purpose of the hacking wasn't to obtain the info, what if the purpose of the hacking was to make it more difficult to ID the source?

Feldstein: protecting sources is considered a moral obligation.

Feldstein: recruiting, conspiracy are scary terms. Used for terrorists. Journalists direct sources, say what they need, send back for more information. So if that becomes criminalized, if that becomes conspiring, then most of what investigative journalists do would be criminal

Back to the - unaccepted - idea that this prosecution is limited to cables naming sources. You have concerns about assertions of potential harm. Still the case?

Feldstein: Oh yes. Was getting hypotheticals from the prosecution, but absolutely I think the govt track record in exaggerating national security harm removes the benefit of the doubt, must be viewed with skepticism.

There's a specific statute dealing with naming names. That should've been used to charge what the prosecution alleges here. This indictment is much wider, quotes another prosecutor, 'Espionage Act indictments obviously framed to mirror what journalists do,' not an accident.

The statute: The Intelligence Identities Protection Act of 1982: fas.org/sgp/crs/intel/…

Fitzgerald clarifies what Feldstein meant earlier about the 'proof in the pudding' referred to the Obama admin not prosecuting.

When Chelsea was convicted in 2013, clearly decided not to prosecute then? Right.

And Manning's sentence was commuted. So those were the actions taken or not taken. Going back over the prosecution's issues with quoting the WaPo articles previously

Reviews paragraph here:

Talks about discussions of prosecuting Snowden but not @ggreenwald. Same distinction was being made by the Obama admin between Manning and Assange.

Reviewing that no new evidence had come to light. Back to this WaPo article: washingtonpost.com/world/national…

Heard the phrase, "a grand jury would indict a ham sandwich?" Yes, they generally do what prosecutors want them to.

Reviewing Feldstein's reasons that this is politlcaly motivated: that Obama didn't prosecute, wide scope of the indictment, Trump's vitriol toward the press.

Feldstein: yes, and the only attempts to prosecute journalists in the past were obviously highly political.

End of professor Mark Feldstein's testimony. #AssangeCase

Prof. Rogers will give testimony by video tomorrow. Mr Ellsberg may as well, question of timing. Tomorrow we'll start at 10:30am London time. #AssangeCase