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Sep 15, 2020 64 tweets 19 min read Twitter logo Read on Twitter
DAY 6 #Assange extradition hearing starting soon. We'll be live-tweeting on this thread.

Tune in to #CNLive at 5pm BST for Joe Lauria @unjoe's daily round-up.

We have a view of the court room but they haven't connected the audio yet. Eric Lewis has taken his place.
"All stand".
Baraitser announces audio problems fixed. Eric Lewis apologises for interruption yesterday. He had an open tab where a video started playing.

James Lewis (prosecutor) addresses Eric Lewis (witness).
James Lewis refers the witness to the findings in the case of Ahmad v UK in relation to solitary confinement.
Regarding the relationship between solitary & physical illness, JL points out conditions are better. Why he asks, did Eric Lewis not mention changes.
#Assange expert witness Eric Lewis is still unintelligible much of the time due to audio problems.
James Lewis is referring the witness to a document written by Assistant US Attorney Gordon Kromberg.
Eric Lewis doesn't have the document.

JL On June 15 2015 complaints about ill-treatment of inmates w/ mental health issues in Florence ADX. There are pages of recommendations...
JL Going back to Gordon Kromberg, do you agree that the Cunningham litigation made things better.
EL In some ways they are better; in some ways worse.

JL refers EL to Kromberg on protection of inmates from #Covid

Have you visited ADX since the pandemic
No, we aren't allowed
JL reads EL a list of measures in place at Alexandria Detention Centre to prevent the spread of #Covid.

JL Only one prisoner has Covid at ADC, so all those stats you cite from other prisons are irrelevant. Right.

EL There's a chance JA would be sent elsewhere than ADC.
JL points out errors in EL's calculations. The 175 years is simply a sound-byte, right? Do you honestly think he will be sentenced for that long?

Doesn't give EL time to respond. Edward Fitzgerald objects.

Baraitser says witness should be able to explain why it would be 175.
EL The US is say this is the biggest espionage case in history. Mike Pompeo has called @Wikileaks a non-state hostile intelligence service. @xychelsea's max sentence was 60 years. #Assange's max IS 175 years.

JL completely garbled while saying this. Lucky we know the story...
JL (reads) EL claims #Assange will spend rest of his life in prison. EL relies on statutory max.

Asks witness if he accepts few receive the max. EL agrees. Reads more sentencing guidelines. Mentions how it panned out for Jeffrey Sterling. His max was 130 years. Sentenced 42 mths
EL Jeffrey Sterling was given a sentence way below guidelines...

JL cuts him off

Fitzgerald objects but they move on to another case: USA v Terry J. Albury charged w/ espionage.

Judge says punishment does not relate to volume of discloses, but classification level
JL Did @Wikileaks release anything classified Top Secret?
EL I believe not

JL Judge found it proportional to sentence Albury to 49 months

JL What is longest sentence ever imposed for disclosure to media?

JL 63 months
EL Re 793 (Espionage) there's never been such a case
JL A district judge has life tenure in the US, right?

EL There have been up to 12 impeachments.

JL Do you know Judge Claude M. Hilton (assigned to #Assange case)? He's been on the bench for 35 years.
Do you think he would deliver a fair sentence?

EL He's fair.
JL You say #Assange's base line is 97-121 months?
EL Yes

Court takes short break
JL You said the case of Mr Assange is unprecedented.
EL YES, there has been no successful prosecution of a journalist.
JL Turning to Rosen, your comments are full of errors.
EL The Espionage Act has been modified on a number of occasions. Apologies for my errors.
JL [Reads} This about a prosecution under 793 (g), for which Mr #Assange is also charged. The arguments were
1/ constitutionally vague; and
2/ Breached 1A

Judge responds: While Supreme Court has never tried a 793 (c) (d) (e) & (e) case, it has rejected accusations of vagueness.
JL Judge Ellis says a constitutionally vague statute can stand if the intent is specific.

JL Re 1A challenges SC said Espionage Act does not breach 1A when it comes to harm to the nation [Schenck v US]

JL The Pentagon Papers is NYT v US, right? That was about prior restraint
JL reads more from Schenck. Basically saying national security trumps 1A

EL Lists conditions of prosecution & says that's why a publisher never prosecuted

Eric Lewis is undecipherable

JL Do you agree abt class #Assange falls into? Not a gov employee, not authorised to access?
We can't report what witness Eric Lewis is saying. Something about balance between the Espionage Act and First Amendment.

JL challenges EL to cite one single precedent that says publishers can't be prosecuted.

EL cites a long (mostly indecipherable) list.
JL reads the US has never held that 3rd parties, including journalists, can not be prosecuted.

EL Such as a case has never been tried. Mr Assange has 1A rights but Mr Kromberg says he doesn't

JL Insiders can be prosecuted?
EL Yes
JL 3rd parties can be for helping leakers?
JL Should someone be prosecuted for gaining unauthorised access to the Whitehouse?

EL Yes, but journalists should not be prosecuted for publishing NatSec information.
JL Moving on to the political aspect of this case.
Eric Lewis's response is #undecipherable

JL Your evidence re a politically motivated case has been rejected by the Hight Court?

JL I gave the evidence to the District Court [USA v Dempsy]... That was their view
JL Prof Feldstein - on the possibility of prosecution of #Assange - said: "It certainly remained open". Says Feldstein retreated from "President Obama decided not to prosecute" to "there was no decision to prosecute". Do you agree?

EL No!
JL: Feldstein conceded Obama decided not to prosecute "at this stage".

EL: Knowing how DoJ operates, I can not agree with Mr Feldstein

JL: Have you any direct knowledge of deliberations of Obama or Trump admins abt prosecuting #Assange?

EL: No

Jl Do yr opinions come fm media?
EL Eric Holder made the final call.
JL Have you served in DoJ?
EL: Not in executive brach
JL: Aren't prosecutors supposed to ignore political opinions of defendants.
El: That's what is written down but it is not being followed (acc to what 1200 prosecutors have written).
JL Your 3rd statement refers to political motivation. Can you help us understand this?
JL [reads]: @Wikileaks poses a threat to the legitimacy of Mr Trump's campaign. Do you mean the election campaign?
EL: Yes, the 2016 election campaign
JL: Trump praised @Wikileaks...
JL (continues reading EL's statement) Trump's prosecution of #Assange seeks to hide the fact that he was helped by @Wikileaks

JL If Mr Trump wants to silence Mr Assange, surely a public trial is the worst way to do it?

EL has a lot to say but is #indecipherable (multiple echos)
JL Your opinions of why #Assange is being prosecuted is pure conjecture.
EL #undecipherable ... based on my experience... that is your view.
JL Isn't the CPIA a procedural statute?
EL Yes
JL With respect to discovery, do you agree that the gov may only withhold classified material if a judge deems it is not relevant or helpful to the defence?

EL Gov can withhold under certain circumstances.
JL Do attorneys get a security clearance?
EL Not always
JL Is the role of the CPIA to protect sensitive information?
EL The defendant doesn't get access to all information, which can affect fairness.

JL No more questions
Re-exam by E. Fitzgerald
Re Obama not deciding to prosecute #Assange you refer to numerous sources. The Eric Holder ITV revealed that the admin would not prosecute those who were not being directed by a foreign power?
EL Yes
EF You also cite Matthew Miller & NYT problem?
EL Yes
EL None of the sources I referred to denied what they said later.
EF Refers to Alan Goldman of @nytimes. There was pressure put on EDVA to bring charges?
EL Yes... #indecipherable
EF JL has suggested DoJ is free of political influence
EL Trump said he can do what he wants w/ DOJ
EL DoJ is operated from the top down. The president's discretion is absolute. Without questioning anyone's integrity, we can say things have changed & decisions can come from political actors.

EF You said Mr Burnham(?) was made to step down. Roger Stone was let off?

EL Yes
EL Nothing changed in terms of factual evidence since 2010-2011. 1A hasn't changed. There has only been change in admin & arrival of Mr Barr. #Assange highly political case was exhumed by Trump admin. Cites many examples of decisions not to prosecute publishers.
EF Mr Kromberg has expressed many views, about prisons, SAMS etc. Is he more qualified than you to talk about prison conditions?

EL I'd be surprised if he'd spent as much time as me in prisons. I spent weeks in Guantanamo. GL's mentioned reforms may look good on paper, but...
EF It was put to you there was no solitary confinement But there is the equivalent with SAMS?
EL Yes
EF The Mandela rule is that isolation would be 22 hrs/day. Would 3Assange be thus held?
EL Yes
EL The AG orders SAMS. It's possible to challenge
EF The Ahmad case relates to 2008?
EL 2007.
EF The decision in Ahmad might be decided differently today. What materials would be relevant?
EL Much research into the effects of solitary on health.
Mental health is a particular concern. Alarming statistics. Since Cunningham litigation - 2/3 of suicide & self harm
You referred Maureen Baird, a warden. JL said there was treatment in prisons for people w/ Aspergers syndrome. Warden Baird said such treatment was not available for inmates on SAMS.

JL Agrees

Break for lunch
All rise. Court in session.
Edward Fitzgerald will re-examine witness Eric Lewis on his statement regarding the risk of #Covid in US prisons & particularly for Mr #Assange.

We have been disconnected from the court. Trying to get back in, we're told "Error connecting..."
Back in court. Eric Lewis talking abt 2nd superseding indictment. Many other players introduced. Adjustments re sentencing are likely, esp re 'Teenager' because of his age. Also re defendant having "special skills". Also re helping @xychelsea could be seen as obstruction.
EL If the court accepted score of 43 that would mean a life sentence, reduced to 175 years
EF Can you exceed the guidelines for sentencing?
EL Yes
EF You said @xychelsea got 35 years?
JL Yes, but the gov wanted 60 years & was trying her on a charge that could incur life, or death
JL The Fourth Circuit has never prosecuted a publisher for exposing NatSec information. They didn't go ahead with the Rosen case.

Next witness is Thomas Durkin
Defence asks for 10 mins
Witness Thomas Anthony Durkin is a criminal defence attorney in Chicago. He specialises in civil rights and domestic terrorism cases, and in defending complex federal criminal matters.

Tom Durkin being sworn in.
EF You prepared 2 statements in2019 & 2020?
TD Correct
EF Do you stand by them?
TD Yes
EF You are licensed to practice law & have done so for many years?
TD 47 years
EF You also teach law in Chicago? Received awards for defending Guantanamo detainees?
TD Yes
EF You deal a lot w/ people charged w/ classified material? What are the problems.
TD Classified info can only be reviewed in a SKIF, only discussed w/ a peer - not at all w/ defendant.
EF You say Mr @Assange will not be allowed to know what his lawyers have learned.
TD Correct. It's a terribly difficult impediment.

EF Re the sentence Mr Assange might ice, is there a risk he will be sentenced to life.
TD I think that's highly likely, looking at the guidelines.
TD The guidelines are not mandatory. One can't determine what the sentence will be. My estimation is that he could fall within [a score of ] 38, 40 or 43, which is equivalent to the rest of his life - or 30-40 years.
EF Can conduct Mr Assange is not convicted of be taken into account in determine his sentence?

TD That's correct. Other conduct he could even have been acquitted on, could be use in an aggravated sense. Someone who pleas guilty gets 3 points taken off their sentencing range.
TD There is a strong incentive to plead guilty. You get punished for going to court. Most clients if you explain the consequences & accept a plea because they can't run the risk of going to trial. Defendants are coerced into admitting guilt.
We have lost the witness. Court breaks while technicians try to reconnect him.
Tom Durkin is back.
EF If a defendant agrees to accept a plea, does that entail full co-operation w/ authorities.
TD Usually.
EF Could that include in this case, revealing sources for @Wikileaks?
TD Yes
In yr 2nd Affidavit your deal w/ the handling of this case by 2 successive governments. Are there political considerations?
TD Yes, by the Trump administration.
EF Mr Kromberg says there is GJ protection against an over-zealous or politically motivated prosecution.
TD Not true
Tom Durkin's image has frozen again. Another 5 mins break
Tom Durkin back online. Baraitser said the problem has been at his end. He has switched to a different computer.
EF [repeats question] Does the Grand Jury protect against a politically motivated prosecution.
Ef And the defence have no right to appeal before GJ?
TD Correct
James Lewis X-examines
JL Your 1st statement related to fail trial in the US?
TD Yes
JL Are you saying #Assange will not get a fair trial in the US, or will it just be difficult?
TD In my opinion, he will not.
JL So you're saying it's a problem of NatSec info
TD We can't discuss
JL [reads] Guidelines say Mr Assange may be able to view some evidence.
TD He would not be able to go into the SKIF, or get a security clearance to view classified info.
There's a difference between classified & discovery material.
JL Are you aware of the Assange defence?
TD You have to discuss discovery w/ the client & that becomes difficult when the client is detained pre-trial.

JL Would #Assange really need discovery? Surely it's all abt the classified docs @wikileaks put online?

TD I wouldn't make that assumption
JL Re "plea tax". That's simply a discount for a guilty plea?
TD Yes
JL You get 3 levels off if you plead guilty. Are you saying there's any thing wrong in that?
TD It's draconian and difficult [too risky] to go to trial
JL The judge decides on the enhancements
TD Not really. He can't ignore enhancements.

JL Re sentencing for "other conduct" and Rule of Specialty. Do you know the UK case of Welsh?
JL It talks about other conduct as an aggravation. Is that the same in US
TD Yes
James Lewis pulls Feldstein's testimony out again, re claim Obama admin decided not to prosecute #Assange. His contention is that it was just a long investigation that spanned both administration.

JL You got yr impressions from news reports?
TD Of course! (x3)
Re-exam from Edward Fitzgerald.
EF Have you seen the report JL referred to from the @washingtonpost, where Matthew Miller, a former DoJ spokesman, said there was no way to prosecute #Assange?
TD Yes
EF Would you consider MM a reliable source & others you mention?
TD Yes
EF You are aware of the dissent of prosecutors James Trump et al against prosecuting #Assange?
TD Yes
EF You spoke of prosecutorial discretion.
TD There have to be reasons for enhancements or aggravations, but a client's future is ultimately in the hand of the prosecutor.
Tim Durkin testimony has ended. Tomorrow we'll hear from John Goetz in the morning and @DanielEllsberg in the late afternoon.

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