Thread by @kgosztola

The sixth 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.

Yesterday, Assange extradition hearing resumed with testimony from US lawyer Eric Lewis. I paid particular attention to European Court of Human Rights decision that prosecutor seized upon to argue abusive prison conditions shouldn't prevent extradition. shadowproof.com/2020/09/14/at-…

Eric Lewis suggested in his testimony that Assange would be held at Alexandria Detention Center before trial if he were brought to the United States. He'd be in conditions that were "tantamount to solitary confinement," like alleged Russian spy Maria Butina.

Chelsea Manning was confined at the Alexandria Detention Center while she was held in contempt by a federal court because she refused to testify before a grand jury empaneled to destroy WikiLeaks. #Assange

Court is in session. Eric Lewis takes responsibility for the Fox News video that played yesterday during proceedings. And James Lewis is resuming his cross-exam from yesterday that was abruptly ended by tech problems. #Assange

James Lewis is walking Eric Lewis through the ECHR decision in the Ahmad (and others) case. He especially notes the sections on solitary confinement that show the court considered the issue, though they rejected appeals against extradition in 2012. #Assange

James Lewis accuses Eric Lewis of "fishing" for material to help him ignore Ahmad case.

Eric Lewis replies, "If I were fishing, there are some large fish in there that convinces me that there is greater and greater data," that appreciates impact of solitary. #Assange

Eric Lewis makes clear that he agrees with Assange's legal team. It is likely government would incarcerate Assange at ADX Florence, a supermax prison, after trial.

James Lewis refers to Cunningham v. Federal Bureau of Prisons, which was a class action lawsuit that ended in settlement and challenged the cruel and inhuman treatment of prisoners with mental illness at ADX Florence #Assange

James Lewis asks Eric Lewis to concede treatment has gotten better for prisoners with mental illness at ADX Florence after the settlement.

Eric Lewis replies it's improved in certain ways and in certain ways it has gotten worse. #Assange

James Lewis asks Eric Lewis about the COVID-19 pandemic. He doubts it would pose any threat to Assange if brought to the Alexandria Detention Center, highlights few number of cases at the facility.

Eric Lewis, who believes Assange would likely be confined at the Alexendria Detention Center before trial, says 12 percent of federal population has COVID-19. "If he is convicted and sent elsewhere," virus would be more of threat #Assange

Eric Lewis' position: "If Mr. Assange received the full sentence [175 years], and received a credit for good behavior for each year, his sentence would still be far more than 100 years in federal prison."

James Lewis mentioned federal prison sentence against CIA whistleblower Jeffrey Sterling, who was convicted of Espionage Act offenses. Said Sterling was charged with handing over classified letters/plans from CIA program targeting Iran to journo, which was never proven. #Assange

James Lewis refers to the sentencing of FBI whistleblower Terry Albury. He then moves on to the sentence that was issued against NSA whistleblower Reality Winner. Both pled guilty to violating the Espionage Act. He notes Winner faced longest sentence - 63 months. #Assange

Re: Albury and Winner

James Lewis emphasizes federal judges have discretion and will use rigorous procedure to issue fair and independent sentence. But Eric Lewis appears to believe Assange faces a case that is far more complex.

Comment: Much of US prosecution's case against Julian Assange depends on deluding courts into believing this is not unprecedented, and judges in US have reviewed cases like this before and handled them fairly. (1/2)

Comment: Directly comparing indictment against Assange to how Espionage Act cases against Albury, Sterling, or Winner unfolded creates the false perception that they are comparable. I think case against Assange represents a new kind of case for Justice Dept prosecutions. (2/2)

In regard to First Amendment, James Lewis says it's your position that the US Constitution precludes prosecution.

Eric Lewis: Yes, no such thing as a successful prosecution of publisher [in US history] #Assange

James Lewis, lead prosecutor: to Eric Lewis: "I challenge you to provide to this court one single precedent that says publishers cannot be prosecuted." #Assange

It is very difficult to understand Eric Lewis and the court has not paused to help him fix his settings so we can understand the testimony he is giving over a video link. So, bear with me. I'll go back and share quotes from this section at next break. #Assange

James Lewis: "Is it correct the US Supreme Court has never held that the First Amendment precludes the government from prosecuting third parties, including journalists, for publishing national defense information?" #Assange

Eric Lewis says when Jeff Sessions was Attorney General he pressured the EDVA to indict Assange.

"I am only saying that the Justice Department has been highly politicized, and I think very few Americans would question that presumption."

Eric Lewis' testimony spotlights Trump's shifting view toward WikiLeaks depending on politics. In 2010, favored death penalty for Assange. In 2016, he loved WikiLeaks, as Clinton campaign emails were published. In 2019, as Assange was indicted, "I know nothing about WikiLeaks."

James Lewis wraps. He was well into the fourth hour of cross-examining Eric Lewis. Ed Fitzgerald is now re-examining for Assange's legal team.

Eric Lewis highlights 2018 Barr memo outlining Attorney General's view that "full measure of law enforcement authority is placed in President's hands, and no limit is placed on the kinds of cases subject to his control and supervision." AG and DOJ lawyers are "his hand." #Assange

This comes up again in Eric Lewis' testimony #Assange

https://twitter.com/kgosztola/status/1305472961403645952

We're on lunch break until 2 pm. Plan is to wrap with Eric Lewis, and then US defense attorney Tom Durkin will testify. #Assange

Edward Fitzgerald goes over issue of sentencing with Eric Lewis meticulously. They use sentencing table to show how prosecutors could add enhancement to sentence, which would result in possible 175-year sentence. #Assange

Eric Lewis: "If defendant was organizer or leader of criminal activity that involved 5 or more participants that was otherwise expensive," can add adjustment.

Would take to over 12 years.

Eric Lewis: "With respect to 'Teenager,' [or Siggi], whose age seems relevant in that, you add two levels if minor under age of 18 is involved in the offense."

Would take to over 15 years. #Assange

Eric Lewis says is adjustment for people with "special abilities that help them commit the crime."

"I would think that Mr Assange’s technical proficiency would be
adjustment."

Would take to over 19 years.

Eric Lewis further suggested enhancement could be added for obstruction, or eluding investigators of the alleged crimes. They could also add enhancement for alleged victims of disclosures of information who were government employees. #Assange

Tom Durkin, a US defense attorney who has practiced law for 47 years, takes the proverbial witness stand in Assange extradition hearing #AssangeTrial

Fitzgerald begins by asking about the difficulties Assange would have preparing or engaging in his defense.

Durkin agreed Assange would not know what his lawyers learn on discovery from classified evidence.

Fitzgerald goes over the scale of sentence Assange might face (somewhat similar to what he did with Eric Lewis).

If convicted on all counts, Durkin said he'd be looking at possibly a 30 or 40-year sentence.

Durkin said conduct alleged against Assange, which he was acquitted of committing, could still be raised in aggravation to increase his sentence.

Durkin describes the "trial tax," which is the built-in incentive to plead guilty in the sentencing guidelines. "You get penalized for going to trial."

And a defendant may also plea to reduce their exposure to lengthy sentence. #Assange

Like multiple other witnesses, Durkin agrees that "political considerations" influenced the Trump administration's decision to indict Assange

There is a problem with Durkin's connection. It would be constructive if the court would help him troubleshoot, but this is the second time his internet has had a problem and all Baraitser seems to care about is that it isn't court that is having malfunctions #Assange

Durkin has switched to a different computer and hopes it will help #Assange

James Lewis, prosecutor, starts cross-exam with Durkin, and Durkin says, "I don’t believe he would be able to get what I would consider to be a fair trial in the United States." #Assange

James Lewis insisted Durkin could not possibly know for certain that Assange case would have unprecedented amount of discovery materials.

[I'll add Chelsea Manning's discovery evidence was massive.]

Asked about the assertion that Obama admin declined to prosecute Assange, Durkin said he doesn't "lend a lot of credence" to Kromberg saying there was still ongoing grand jury. In fact, what we know suggests case was probably declined at some point.

James Lewis asked Durkin if he could share how much the defense paid him.

Durkin: "Only if the judge will redact it so my other clients can't see what I accepted."

Laughter ensued #Assange

We've spent lot of time going over whether reporting on Obama admin and potential prosecution of Assange was credible or not.

Durkin said, "Not uncommon for Justice Dept to want to get certain positions out into press that they might otherwise not want to have to disclose."

Durkin continued — and this was during redirect with Fitzgerald:

"Not uncommon for leaks to occur, and if government doesn’t like the way reports are coming out, they will see to it that other leaks get made that can correct that." #Assange

Tomorrow we expect to hear from John Goetz, investigative journalist who was with Der Spiegel and worked on publications. We should also get to Pentagon Papers whistleblower Daniel Ellsberg's testimony. #Assange

Here's video report for Day 6 of Assange's extradition hearing #AssangeTrial

Two US defense attorneys testified at Julian Assange's extradition trial and detailed how he could effectively spend the rest of his life in prison if convicted of all offenses shadowproof.com/2020/09/15/wit… #AssangeCase