Thread by @DefenseAssange

Day 8: Julian Assange's extradition hearing. Today we expect testimony from Carey Shenkman, human rights attorney and expert on the Espionage Act, and John Sloboda, from Iraq Body Count. #AssangeCase

Yesterday we heard from Dan Ellsberg, on his experience under the Espionage Act:

"I did not have a fair trial, no one since me had a fair trial on these charges, and Julian Assange cannot remotely get a fair trial under those charges if he were tried.”

assangedefense.org/live-blog-entr…

We also heard from John Goetz, who spoke about WikiLeaks' harm-minimization process of redactions and who explained that Guardian journalists' publishing of a password in their book was to blame for unredacted cables being released. #AssangeCase assangedefense.org/live-blog-entr…

First up is John Sloboda, being sworn in now, from Iraq Body Count (iraqbodycount.org)

Iraq Body Count is an independent NGO, continuously counting civilian deaths in Iraq. Says killing civilians is a war crime.

Tracking civilian deaths gives dignity to the dead, and it's a fundamental human need to know how one's loved one died.

Sloboda: the public recognition of these deaths, name by name, is what we would all aspire to

Before Iraq War Logs, the body count was based on global media reports. From around 2000, search engines became so powerful that it became easier to source all publicly available information about deaths in Iraq for posterity

The Iraq War Logs was the single largest contribution to knowledge about civilian casualties in Iraq. Revealed approximately 15,000 previously unknown civilian deaths.

The war logs gave meticulous detail, sometimes included names of the dead. Was able to cross-check the Body Count's logs with the WikiLeaks logs to discover uncounted casualties

Mr Assange was "absolutely welcoming" of working together with Iraq Body Count, decided to create media partnership to perform serious analysis before they were released to the public

Impressed upon us that Assange's aim was a very stringent redaction of the logs, to ensure no information that could be damaging to living individuals would be released. Not feasible to do this by hand, so sought a method to do this technically

Sloboda's colleague came up with a method to do that: automatically remove all words not in a standard English dictionary (to ensure names were removed). This removed useful acronyms so we had to go back and unredact those.

But then we also went through and redacted occupations, as these could be identifying. This process took weeks, was painstaking. Considerable pressures on Assange and WL to hurry up because partners wanted to publish.

Those pressures were consistently rejected -- they could not be published until the redactions were completed

Some media partners redacted a few logs by hand and wanted to go ahead and publish those; Assange was clear that the whole set of logs had to go out, so had to wait for redactions

Many people who used them would agree they were *overredacted*, the stance was to be overcautious and then on closer look after, to possibly unredact something if it could be revealed

Importance of Iraq war logs: The Wikileaks release brought this high number of civilian deaths in Iraq to a bigger audience of any release before it, some 40,000 news reports on the war logs alone in the last 10 years

End of defense questioning, now cross-examination. Establishing that Sloboda isn't an expert in classification -- his expertise is in the collation of and cross-checking of statistics

Asks Sloboda if he's aware of 'jigsaw identification' with regard to source protection -- the piecing together of seemingly disparate information to find a source. This is why he was concerned to redact occupations in addition to just names

Talking about the timeline in 2010, prosecution trying to argue that the Iraq war logs were so heavily redacted because of mistakes in Afghan war logs. Sloboda: I believe there was a sense to have a better redaction process

Sloboda confirms there was pressure from other media outlets to hurry up and publish Iraq War Logs

The original publication date had to be pushed back, due to extensive redaction process #AssangeCase

Prosecution only charged Assange with publishing the unredacted cables, so needs to argue that he didn't care about sources named. Sloboda is explaining it was Assange who stalled publication because redactions were more important than speedy release

(Sloboda is talking publication of Iraq war logs not cables, but giving sense of Assange's view on the importance of sources/redactions)

Prosecution going back to Assange's comments at Frontline in August 2010, calling it regrettable that sources were named but some informants are engaged in traitorous actions and the public deserves to know

Sloboda: I never heard anything like this when working on the Iraq war logs. We were of the same mind on redactions

Aware that the Iraq war logs contained unredacted names? No not aware of that

Takes him to statement from Dwyer saying this was the case, Iraq & Afghan sources named. Any explanation how they were published? No this is first I'm seeing of this

Might it be because Mr Assange took a cavalier attitude toward the risk of publishing these names?

Sloboda: no

Well what's the explanation?

I would think that for some reason, the redaction process allowed those names through, but that's just conjecture, I'd need to look at an example

End of cross-examination. Recess now while defense speaks to Julian to see if anything else should be asked in re-examination

https://twitter.com/iraqbodycount/status/1304041114916261888

No further questions from the defense. End of John Sloboda's testimony. #AssangeCase

Ed Fitzgerald of the defense says they could use some time to agree with the prosecution on witness statements that could be read. Court is adjourned until 2pm London time.

Iraq Body Count

Iraq War Logs: Context: iraqbodycount.org/analysis/qa/wa…

Iraq War Logs: The truth is in the details: iraqbodycount.org/analysis/beyon…

Iraq War Logs: What the numbers reveal: iraqbodycount.org/analysis/numbe…

From @DEAcampaign last month: WikiLeaks’ Iraq War Logs and what it means for Press Freedom

Panel with investigative journalists Iain Overton and Chris Woods to discuss the impact of their release, 10 years on

dontextraditeassange.com/events/wikilea…

Today's #AssangeCase report so far:

“It could well be argued...that by making [the Iraq War Logs] public Manning and Assange were carrying out a duty on behalf of the victims and the public at large that the US government was failing to carry out.”

assangedefense.org/live-blog-entr…

Court is back after the break. Carey Shenkman will testify by videolink. Shenkman is a Constitutional scholar and historian, Constitutional and human rights lawyer with a practice in NYC.

Brief recess -- audio issues with Carey's videolink. Yesterday, the New York Times reported on technical issues in Assange's hearing, including @rebecca_vincent on why it's so important to have open access: nytimes.com/2020/09/16/wor…

Carey Shenkman in 2015: Whistleblowers Have a Human Right to a Public Interest Defense, And Hacktivists Do, Too

huffpost.com/entry/whistleb…

Carey Shenkman with Michael Ratner in 2015:

CCR to UN: Whistleblower Protections Must Include Publishers Like WikiLeaks and Julian Assange

ccrjustice.org/home/blog/2015…

As CCR notes in the report, "the ultimate effect of prosecuting and censoring publishers is the unacceptable chilling on the free flow of information, rights to access information, and freedom of expression."

#AssangeCase

Audio issues resolved, testimony resumes with Mark Summers questioning Shenkman for the defense. Taking him through his biography and witness statement

https://twitter.com/MElmaazi/status/1306587817456201728

https://twitter.com/MElmaazi/status/1306587820006359050

Shenkman: the Espionage Act was born in what any serious Constitutional scholar would call one of the most repressive periods in US history

Shenkman talks about the use of the Espionage Act being used against dissidents, including Eugene V Debs

Shenkman: the Espionage Act is "extraordinarily broad" and he gave history of it to show how widely it can be used

Many historians and academics agree with this interpretation, one of the most divisive laws

Prosecutorial discretion is not a good safeguard against its abuse, the law prohibits national security info released to anyone -- so broad that it could make a criminal of anyone who reads that information

Not limited to national security information, 'national defense information' doesn't have to be classified to violate the act

The law lacks a public interest defense

Attempts but no precedent of a successful prosecution of the press under the Espionage Act

In the 3 grand juries investigating media outlet to prosecute publication under the Espionage Act, none returned indictments

Each of these cases were highly politicized, involved the president and the attorney general

Why is it that, despite 11 cases investigating the press for publishing classified info, there has never been an indictment?

The First Amendment - outcry from the press, no coherent way to draw a line between the media outlets who published and others, no limiting principle

From Shenkman's statement: "There has never, in the century-long history of the Espionage Act, been an indictment of a U.S. publisher under the law for the publication of secrets."

Pentagon Papers case, the Supreme Court rejected 'prior restraint', could not restrain the NYT from publishing

In US v Morison, Judge Harvie Wilkinson: “press organizations . . . are not being, and probably could not be, prosecuted under the espionage statute." He warned
of the “staggering breadth” of the Act

Political/media climate in 2010. Leaking is encouraged, journalists wouldn't expect to be prosecuted under Esp. Act, belief that the First Amendment protect

In 2013, the position changed, by then there were several prosecutions of leakers under the Act, journalists started to fear it. Search warrant for journalist James Rosen as a co-conspirator of Stephen Kim. But fears were dialed back when Holder talked about his regrets

Shenkman statement: "In Oct. 2014, after Holder announced his intention to resign as Attorney General, he told C-SPAN that the greatest regret of his tenure was his department’s affidavit characterizing James Rosen as a suspected co-conspirator in violation of the Espionage Act."

End of defense questioning. Now Florence Iveson cross-examining Shenkman for the prosecution. #AssangeCase

Establishing that Shenkman worked for Michael Ratner, whose office provided advice to Mr Assange. Shenkman is not working for the defense, is giving his expert testimony independently

Correction, Claire Dobbin questioning for the prosecution

Brief recess while they try to ensure Shenkman has the prosecution's bundle -- apparently sent to him at 9am London time today (Shenkman is in the U.S.)

Will discuss among other things, Shenkman's co-authored article in The Nation from Feb. 2016:

"It’s Been Two Weeks Since a UN Panel Declared That Julian Assange Should Be Freed. Why Is He Still Detained?"

thenation.com/article/archiv…

The Nation byline lists Shenkman as 'a First Amendment and human rights lawyer, and member of Julian Assange's legal team.' -- Shenkman says he didn't write the byline, wouldn't say it's false but would qualify it, he was working for Ratner

Dobbin: So in what scope were you representing Assange?

I was working for Mr Ratner, not in a criminal proceeding - in this was commenting on the question of detention in the European Court of Human Rights

The article's headline represents your opinion that the UK was arbitrarily detaining Mr Assange?

That was my position with respect to ECHR, I know it was contentious

Believe he was a victim of arbitrary detention?

That's right, I'm a human rights lawyer, UK and US have violated human rights obligations, don't think that's particularly controversial

Prosecution trying to establish Shenkman's opinions on Assange at the time of the article, Shenkman questioning the relevance, says his submission is about a historical and academic analysis, I have an interest in providing an accurate and unbiased analysis

I can talk about that piece but I don't want to waste your time, want to probe your thinking on why you're asking about that

Prosec: that will become clear Mr Shenkman, but want you to be clear that we need to test whether your opinion, even if academic, is balanced & objective

Shenkman: I understand that but in my submission I don't talk about the working group on arbitrary detention, we accept that prosecutors become judges and remain objective. I'm open about my opinion

Prosec: I'm going to test whether you've been objective in your analysis of the Espionage Act

Prosec cites article, "If [Assange left the embassy], he would be arrested and almost certainly extradited to the United States, where he would face persecution and inhumane treatment."

and "As confirmed by the Justice Department in federal court in December, the United States has been pursuing an unprecedented investigation of WikiLeaks—one that press freedom organizations have warned could gut the core of the First Amendment."

Trying to establish he felt US investigation was ongoing.

Shenkman: In relation to 2010 publications, I took the 2013 WaPo article saying there'd be no charges at face value. It's general MO of DOJ to leave investigations open in case of new evidence

Practicing law since 2013

Have you ever acted for WikiLeaks?

Our representation was for Mr Assange. Not generally for WL, not a general counsel, Ratner worked for CCR which was engaged with Mr Assange

Long exchange over the question of representing WL vs representing Assange, comes down to any work for either ended in 2016

Shenkman is writing a book to provide the most comprehensive historical analysis of the Espionage Act

Prosecution cites this 2015 article, 'US government still hunting WikiLeaks as Obama targets whistleblowers'

theguardian.com/media/2015/mar…

(Prosecution trying to show the U.S. government's investigation into Assange/WL was ongoing past 2013 WaPo article announcing the U.S. wouldn't bring charges against Assange)

Shenkman: My read of this is that it's separate and distinct from the investigation into and prosecution of Chelsea Manning

Were you familiar with Rothstein's opinion at the time?

I'd be speculating, was 5 years ago, hesitate to go on record, so much time has passed

Prosec: Well we can be clear that Mr Ratner felt Rothstein's judgement meant that the US investigation into Assange/WL was ongoing? Some objection to the question, he can't comment on what Ratner felt

Discussing this ruling in EPIC vs US Dept of Justice: pdfserver.amlaw.com/nlj/wikileaks_…

Prosec trying to determine what Shenkman's opinion was at the time regarding what investigations were ongoing at the time

Shenkman: I can see where you're going, to suggest the 2013 article saying no charges would be brought isn't accurate, but that is still how I read that article, take DOJ at face value.

There were court decisions indicating ongoing investigations, oftentimes these things are left to simmer. But ultimately an indictment wasn't brought. If Obama and Holder truly wanted to prosecute, wouldn't they have been eager to do so?

Shenkman: Wouldn't Obama have wanted to put that in his memoirs, I was the one who prosecuted WikiLeaks?

Prosecution interrupts, asking if he disagrees with Ratner at the time saying USG was coming after WL

There were multiple investigations

If you were confident there wouldn't be prosecution, why was Mr Assange still in the embassy?

I think questions to Assange's state of mind are for him and his attorney, I can only speak to my present opinions

Prosec: no, you can talk about your statements in this article saying he would be prosecuted

I didn't think he would be prosecuted under the Espionage Act of 1917 for publishing

So you thought, what, he might be prosecuted for something else?

There wasn't anything in public record as to what was investigating, but again the 2013 article took that off the table

Using the Espionage Act like this is extremely contentious, would be an assignment for law school, and I've cited many legal scholars agreeing

I've never thought we would see something like that. Lots of scholars agree, it's truly extraordinary, the use of the Espionage Act like this

The framing of the charges, the timing really point to a highly politicized prosecution, the fact that the charges on publishing on unredacted

Prosecution interrupts, says we'll go through the indictment later

Prosec: I'm going to put things to you to see if we agree they are not controversial legal decisions

Shenkman: My scope is whether this is politicized, I'm not sure it's worth our time to speculate but will be full of qualifications

Prosec: what you're saying is there are a lot of issues in the case are to be addressed by a US court?

No, no. I'm saying these are hypothetical questions of US law, not sure why you're asking. Scope of my testimony is on the Espionage Act as a political offense

because the Extradition Treaty bars political offenses, this is a matter of UK law

Prosecution basically ignores this, says she's going to take him through US law to determine if he thinks it's not controversial

Do you agree that a govt employee who steals nat. sec. or national defense info is not entitled to use the First Amendment as a shield?

It's a highly fact-specific inquiry, depends on what you mean by 'steal,' very hard to say aspects of this are not a controversial issue

It's a finding by the 4th circuit, it's not hypothetical, are you saying you disagree with the decision?

Shenkman: I think that that's one opinion and just like any opinion you could have disagreements.

Shenkman: Just recently was a 9th circuit opinion on Ed Snowden's NSA disclosures and they credited Mr Snowden with those disclosures even though he was a govt employee accused of stealing these things

I think it's generally agreed there would be criminal liability for a government employee in such a case

Prosec moves on to Bartniki ruling - "First Amendment does not confer immunity ..."

Shenkman says what matters in this ruling is whether the conduct is linked to newsgathering, issues such as source protection, obtaining info, etc, so there's a spectrum

(Snowden ruling: Surveillance program that gathered Americans’ phone data was illegal, court finds
washingtonpost.com/national-secur…)

Prosecution trying to get Shenkman to simply agree or disagree.

Shenkman: I agree that's what the ruling was but to analyze would require deep dive, exploring how a line in a ruling is used is what lawyers get paid to do, if it wasn't I wouldn't have a job

Prosec asks for simple yes or no on Bransberg v Hayes, did that constitute an agreed principle

Shenkman: I'd have to go back and look at ruling

Are you saying that hacking government databases is protected under the First Amendment?

I'd have to ask what you mean by hacking, the CFAA uses "exceeds authorized access"

I was using everyday speech

But we're in a legal setting, not held to everyday speech standards

OK so are you saying obtaining unauthorized access is protected speech?

It's actually a contentious issue, what is authorized or unauthorized access is a contentious issue, currently a split in the courts, access restriction vs use restriction

What about cracking a password to enter a government database?

I'd have to look at indictment but I believe it is cracking a password to obtain information, so there are other elements to that, scholarship has advanced First Amendment arguments, it hasn't been tested

Shenkman: Certainly think the First Amendment argument could be brought

"Crack a password" sounds scary but there are other elements so yes I think there are ways the First Amendment could be relevant

So you're saying the First Amendment shields illegal activity?

I'm saying it depends, books written about this, highly contentious, subject to great interpretation, I can't tell you as an absolute, there could be different answers in different situations

So isn't all of that that should be worked out in a US court?

No, my testimony is based on the nature and application of these laws and the way this indictment is written, whether it's political

I thought you were giving testimony on the Espionage Act and the ways in which the First Amendment acts upon it

Shenkman: Testimony is on the circumstances and history of the act

Question of timing, whether we need to stop proceedings today and continue tomorrow

Prosecutor Dobbin tried to say her questions invited short answers, starting to complain Shenkman went long, but the judge won't hear it, says she's conducted questions in a way that invites these answers and Shenkman has been nothing but cooperative

End of proceedings for today. Back tomorrow 10am London time, for another witness and then Shenkman will resume at 2pm London time. #AssangeCase

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