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Sep 18, 2020 149 tweets 20 min read Read on X
Day 9: Julian Assange's extradition hearing thread. This morning's witness is Nicholas Hager, a New Zealand journalist with the International Consortium of Investigative Journalists. #AssangeCase
Hager reported on New Zealand cables in the WikiLeaks files. Says leaked classified documents are essential to journalism
On every controversial story I've written, governments claim there will be harm as a result. After these accusations, some years pass and I later learn the military are reading my books
Talking about Afghan war files. Read about aid and reconstruction operations that turned out to be psychological operations, e.g., I was able to give a layer by layer explanation of the Afghan war.
It is virtually impossible to write about war without information the government says is sensitive.

Exactly the sort of information citizens need to know what their governments are doing. Some of the most important material I've ever used in my life
Collateral Murder video - likens to the video of George Floyd. Profound effect on the public. Followed, importantly, by the war logs, the effect was to electrify the world for the first time to the civilian casualties in the war
Talking about the 'deliberately slow' process to prepare files, redacting, very cautious. My main memory is a team of people working hour after hour in silence, I was very pleased to see the level of care that was being taken
I've become so tired of the news I've seen since -- the picture I got of him was completely different than the picture portrayed in the media. My view is that he's very principled, devoted himself to trying to make a difference in the world.
What principle animates his work?

An inspired idea, his vision, in an era where secrecy was overtaking publics, that the digital age might enable a new kind of whistleblower to inform the public
My view is the war logs and cables, much like the Pentagon Papers 40 years earlier, were the disclosures their era required
End of defense questioning, now James Lewis cross-examining for the prosecution
Lewis: tell us what you understand is the essence of the offense Assange has been charged with.

If I'm perfectly honest, seems to be a mishmash of charges. There's the publishing charges, but it feels to me various things have been appended onto it
Lewis establishing that Assange isn't charged with publishing the Collateral Murder video. Asks why his statement deals with the video so much.
Hager: The way that information has an effect on the world through news media & public debate is not a neat segmented way as it might in the courtroom. So the war diaries, embassy cables, Guantanamo material, and Apache video affected the world as a whole, not as divisible parts
Lewis: have you ever paid a govt official to steal secrets?


Lewis: ever conspired with a source to hack into a computer?

Well depends what you mean, might be useful to bore down on that
OK have you conspired with a source to crack a password?

No but we're getting close to where I might say yes
So let's draw the line. You passively receive information?

Hager: You might imagine journalists protect themselves from the law by passively receiving, but I have to be honest that is not how it works.
We not only work with our sources, we go out and find our sources, we encourage them to get more, might be a memory stick, USB drive, that is what it means to have sources. To publish important information that affects the world means dealing with people who often break the law
Lewis interrupts him, says it's getting "far away" from his questioning
Lewis asking him about publishing names that would intentionally put someone's life in danger

No, of course not

He wants to talk further but Lewis says no you've answered, move on
Takes Hager to Guardian article on media partners criticizing the unredacted release in Sept 2011
Do you agree with those sentiments?

My understanding is that the information came out before Wikileaks made that decision, WL made strenuous efforts to keep it secret, and it was released elsewhere first
Lewis: we say that you're incorrect, that WL published first. If our version was correct would you agree otherwise?

Hager: I think you know that those facts are disputed, I don't want to answer a hypothetical
Lewis takes Hager again to alleged statement from Assange on informants at dinner with David Leigh, asks if he agrees

Defense rises:'assuming that's correct, the prosecution stopped John Goetz from talking about that
Hager: I understand there were conflicts between David Leigh and Assange

Lewis: are you trying to help the court or just help Mr Assange?
Hager won't comment in the way Lewis wants him to, Lewis says he could play video of Assange at the Frontline club on this issue (actually can't play it for Hager as they aren't ready to but says he could play it for the court)
Reads same quote he has before from Frontline club, Hager says no he doesn't agree with it, Lewis moves on
Lewis: you wrote your book without needing to name sources?

Confusing exchange about Hager's book, Hager says it's hilarious that Lewis is citing what turns out to be a footnote from his book. Hager says he didn't get everything right but many abuses he documented were confirmed. Hager isn't sure why this is relevant, Lewis moves on
Asking Hager about his process to redact cables in his own book. Says he took a matter of weeks.

Lewis: Well Mauritzi will testify it took 9 months to do redactions - is that a good yardstick?

All I can say is I was comfortable there weren't risks, and I'm experienced in this
End of cross-examination. Ed Fitzgerald returns for defense re-examination
Fitzgerald asking Hager about the other charges beyond publishing charges -- Assange charged with obtaining, receiving files not just publishing

Hager: yes I thought so, that's why I was confused when prosecution asked about that
(Prosecution had said Assange isn't charged with *publishing* the war logs and GTMO files, led to Hager's confusion)
Talking about working with a source, Hager confirms journalists have a duty to protect the source.
Regarding Guardian article on unredacted cables:

Hager: I believed WikiLeaks people when they invited me into process of great care and redaction. My personal opinion is I don't believe Assange or others changed their mind and didn't care anymore.
Hager: I think it was very unfortunate, that these big leaks were new and some involved might not know exactly how to handle. But I do want to say I'm glad that the redacted cables were out so long, that there was a 9-month period to warn any informants who could've been named
and that is probably why there were no deaths as a result. So the redactions Assange undertook allowed the process by which the USG notified sources and told them to protect themselves. So they had 9 months before bad luck happened and the cables came out
So because of that work to prepare the documents reduced the harm later
Something allegedly said at the Frontline club - agree it's right to protect people from unjust retribution, as Assange said? yes

If someone is an agent provocateur or wrongly accusing others, journalists frequently uncover that, such as in N. Ireland?
Maybe but these are the questions on the edge of journalistic edges I don't want to take a position on
Nicky Hager on David Leigh's book, “It is unreliable and I wouldn’t use that as a source in my book.”
On slow release process: too much could go wrong if all rushed to release at once -- care taken to go slowly
Hager explains that for the rules of engagement, the claim that publishing them would put troops lives at risk – is “highly questionable”
End of Nicky Hager's testimony. #AssangeCase
el-Masri will give live testimony and will require an interpreter -- 30-minute recess as that is being prepared. #AssangeCase
From John Goetz's testimony on Wednesday, on el-Masri:… Image
Court back in session. Defense reading statement of Jen Robinson, attorney for Assange #AssangeCase
Talking about meeting with Dana Roerbacher, and Mr Johnson. Made clear they wanted us to believe they would have an audience with the president when they returned to Washington DC
Roerbacher said he wanted to dispel theories about Russia. Explained information from Mr Assange about the source of the DNC leaks would be of value to Mr Trump
We discussed the clear free speech implications of any indictment for Mr Assange for the publication
Roerbacher raised and acknowledged the free speech implications of such a prosecution. Proposed a 'win-win' situation, Assange get 'get on with his life'. Assange could receive a pardon in exchange for providing information about the source
Roerbacher would go back to Mr Trump to talk about a way to avoid any prosecution
No information about a source was provided by Mr Assange
End of statement
Now getting interpreter for Khaled el-Masri
Apologies, correct spelling of the Congressman's name is Dana Rohrabacher
Recess again, still working out tech issues for el-Masri and his interpreter
Back in court but tech issues with videolink testimony persist. Summers says it would be nice if they could use Zoom or Teams, the court's own video system is much more difficult
Prosec says they'll have very little cross-examination of el-Masri. They don't object to his testifying but they don't want to stipulate that he was tortured and rendered by the US govt
Talking about what defense and prosec can agree on with regard to el-Masri's statements. Particularly objecting to claim that USG placed pressure on the German government regarding the arrest warrant for el-Masri's kidnapping/torture
Defense just wants the judge to acknowledge that this is what the Wikileaks cables reveals, not necessarily whether this is what happened or not, although this is what the Strausberg court acknowledged
Judge: I don't think there's dispute that that is what is in the cables.

Prosec: We don't agree that that's what the Strasberg court said
(Spelling correction: Strasbourg Court. El-Masri background:…)
Julian speaks up from the dock: "I will not censor a torture victim's statement to this court. I am trying to convey those instructions clearly. I will not accept that."
Judge tells Assange to be quiet again.
Appears they will provide the gist of el-Masri's statement rather than have him testify live. Intepreter had been in courtroom, she's dismissed
Defense lawyer Mark Summers begins talking about el-Masri's statements, stops, says he's been instructed to stop. Brief recess.
Court resumes. Mark Summers for the defense is reading from el-Masri's statement. Disturbing details of his kidnapping and torture by the CIA. Sodomized, dressed in a nappy, force-fed through a tube
Statement of Khaled el-Masri:…
Summers still reading from statement. A court ruled his detention and rendition were unjustified, but there has been no justice for the U.S.
Cites ACLU attempting to intervene in his case (…)
Cites Mike Pompeo threatening anyone who cooperates with ICC investigation into US
From March 2020: "Bashing Probe of US War Crimes, Pompeo Threatens Family of ICC Staff With Consequences"…
Recess now for lunch. Back at 2pm London time, when Carey Shenkman will resume testimony. #AssangeCase
From yesterday's report: Carey Shenkman: Espionage Act is an “extraordinarily broad” political offense…
Thread for screenshots of Khaled el-Masri's evidence, which the U.S. government tried to suppress. Julian Assange from the dock: "I will not censor a torture victim's statement to this court...I will not accept that."
Court resuming shortly for continued testimony from Carey Shenkman. #AssangeCase
Clair Dobbin continues cross-examination for the prosecution
Prosec: you're not suggesting are you that there's any law that journalists are protected from prosecution under the Espionage Act for the publication of national defense information?

The Espionage Act is so broad that it allows prosecution
So we agree on this, the law doesn't prevent prosecuting journalists for this?

Well there's no clause preventing it but this is contentious, and there's the US Constitution, and the First Amendment protects publishing
Prosec: I understand you're arguing that, but you can't point to a case where it was precluded?

It hasn't been brought before like this under the Espionage Act
Prosec: do you accept the NYT Pentagon Papers case left the door open for such a prosecution?

I wouldn't say it left the door open because that wasn't the issue before the court, that was an issue of prior restraint
Prosec cites Rosen case, which itself cites Pentagon Papers case, some justices accept such a prosecution could be constitutional
Do you agree a prosecution under the Espionage Act is left open?

Shenkman cites Steve Vladek, is the press doomed after this ruling, but this was not the issue before the court, involved oral transmission of information in AIPAC case
This analysis isn't occurring in a vacuum, must take in context of the First Amendment
Shenkman: If there's an Espionage Act case before the case, I'm sure the US would cite this case because it sounds positive to its case, but this case was dropped
Prosec: so you would say it's debatable, either way?

Shenkman: the issue was prior restraint. You have some SCOTUS judges who expressed some language about this
Shenkman: Would be better to discuss the cases under the Esp Act rather than hypotheticals

Dobbin: so are you saying you're unqualified to comment?
No I'm not saying that, I didn't say that.

Dobbin: Right, moving on.
Do you accept the Esp Act has been challenged on overbreadth and that those challenges have failed?

It's been raised w/r/t govt employees, the set of facts very different from the case at hand, with very different Constitutional concerns here
There's a whole body of cases on Espionage Act that's separate from the set of cases involving the media, so the language used in those cases doesn't necessarily apply here
Dobbin: you're getting afield from the question, do you accept that there have been vagueness challenges that failed?

I'm trying to give context to my answers, if this weren't complicated I wouldn't have written 100,000 words on this
Dobbin: In your report do you refer to the fact that the Act has been refined due to judicial interpretation?

When you say 'the fact' there's been interpretation but there's dispute in the scholarship as to whether that could be called refinement.
For one thing the term national defense information has been subject to much interpretation. I don't think scholars would say that's been refined in the sense that it's been narrowed, if anything some of these terms have been broadened
Again Carey Shenkman's statement is here:…
Dobbin goes to case of US v Morison. Assures the govt cannot abuse the statute -- can only be used where there is a case for secrecy
US v Rosen:…

US v Morison:…

Prosecution saying these cases show the Esp Act can't be abused, only used for nat'l defense info
Shenkman: there's lots of scholarship, including Benkler, post-2010, on this

The problem with your citation is it only deals with one phrase in the Act. That has been disputed and isn't agreed but there are overbreadth arguments that deal with many more issues within the Act
Same legal standard is cumbersomely applied to all these different categories, and there hasn't been a case like this one, all these deal with gov't insiders, closest one is oral transmission but they don't address speaking to the media and therefore don't take 1st Amend concerns
Dobbin: I'm not going to go further because your report says the executive decides the scope of info protected and that's obviously wrong

Shenkman: it isn't, various aspects here are result of executive decision.
Law does not prohibit application of this law against mainstream media, as well as individuals sharing that information on social media, even retweeting
Shenkman: I'm talking about the chilling effect that this prosecution has on the media, that's all due to the breadth and overuse of this law
Says the decision to bring this is itself political
Dobbin moves on, do you accept section 793 of the Esp Act provides room to prosecute beyond classical espionage
Shenkman: I don't think any scholar would make a single claim about the original intent of the law when there has been dispute
Shenkman distinguishes between congress in 1917 and 1950 (when the law was amended) vs the court of appeals in Morison, says these are separate questions
Dobbin still trying to get Shenkman to comment on the intent of the Act. Shenkman repeatedly saying these are incredibly contentious issues with 100s of pages of scholarship, not an agreed issue.
Shenkman also reminding court repeatedly that the cases Dobbin is citing don't deal with passing information to the media so can't be considered an unambiguous interpretation to be applied to all cases
Shenkman: I don't think any of the scholars I've referenced here would agree on a yes or no on the questions you're asking.
Shenkman talks about the "significant chilling effect" that these cases have brought about, so no I don't agree they show restraint, if anything the Nixon tapes show these cases were used to send a message
Shenkman: Successful prosecution is not all you need to instill a chilling effect on the press, the attempt is enough in some cases
Shenkman: Not even just about media, this law can be used against anyone
Shenkman citing Pentagon Papers being read into the congressional record (believe by Mike Gravel) as a precursor to WikiLeaks' desire to have full archives on the record
Also cited Beacon Free Press desire to publish full Pentagon Papers

Dobbin repeatedly stopping Shenkman's answers as too long.
Dobbin - do you understand the publication charges are only about the names of sources?

Shenkman: I'm glad you brought that up it's a curiosity of mine, because the Esp Act doesn't specifically address informants

Judge stops him, says to only answer the question as asked
Final questioning: You also say the CFAA is extremely overbroad? Yes

Cite Professor Orin? Yes
You understand that what Prof Orin says is clear beyond doubt constituting hacking is the same as what's alleged against Mr Assange?

No I don't, and that's not exactly what the professor says
Shenkman cites Prof Orin Kerr's comment on the CFAA charge against Assange from April 11 2019 here, thinks it contradicts what Dobbin said that Kerr believes:
Dobbin: I think it's extremely clear that he'd agree what's alleged against Assange would constitute hacking

Shenkman: well you can take his words in 2010 or in 2019...

End of cross-examination
Defense re-examination, establishes no Top Secret info in this case.

Taking Shenkman back through some cases he cited.

Says the press can't engage in separate and distinct illegal activity. Does not deal with newsgathering, i.e. where the conduct was connected to eventual publication
Grand juries looking into media for Espionage Act violations have never before this case produced an indictment, precisely because of the First Amendment concerns
Never been indictment of the press under 793 -- follows that there's never been an indictment under 793 of a *foreign* press as well
How foreseeable would it have been in 2010 that a foreign publisher could be indicted under the Espionage Act for publishing?

Completely unforeseeable
Common theme among attempts to prosecute? When publishing something contradicting policy of USG
End of live testimony for today. Figuring out who will testify on Monday. #AssangeCase
Issue of transcripts -- 10-minute recess for parties to consider whether they want a ruling on releasing transcripts or whether it's just a matter between defense and prosecution
Shenkman's complete answer on themes of these investigations:
Back from recess. Ed Fitzgerald to read witness statement from Dean Yates
Dean Yates was Baghdad bureau chief for Reuters at the time of the incidents depicted in Collateral Murder, in which two Reuters journalists were killed by U.S. gunmen
Dean Yates in June 2020: "'All lies': how the US military covered up gunning down two journalists in Iraq"…
Judge interrupts to question relevance, Fitzgerald says he's coming to it with the rules of engagement
Judge questions relevance again. Fitzgerald, it's in the context of the US 3 denials of Reuters' attempts to obtain this footage, including denying a FOIA request, that WikiLeaks' release of the video becomes relevant
Fitzgerald: the rules of engagement are in the counts

Judge: I know, but the video isn't

Fitzgerald refers to US Army saying "all you've got to do is pick up a weapon" with regard to rules of engagement
Yates: the US military lied to us. when they met with us I believe it was choreographed to give us a perception of what happened.
Yates: I came to blame Namir (murdered journalist) for peering around the corner and inviting suspicion, and it just erased from my memory the fact that the order to open fire had already been given. the one person who picked up on this was Assange
on the day he released the tapes he said the helicopter opened fire because it sought permission and was given permission. he said something like "if that's based on the rules of engagement then the rules of engagement are wrong."
I was devastated at having failed to protect my staff by uncovering the Rules of Engagement in the US military before they were shot -- and for not disclosing earlier my understanding of the extent to which the US had lied. I was profoundly affected.
Yates: I know Namir and Saeed would have remained forgotten statistics in a war that killed countless human beings, possibly hundreds of thousands of civilians.
Had it not been for Chelsea Manning and Julian Assange the truth of what happened to Namir and Saeed, the truth of what happened on that street in Baghdad on July 12, 2007, would not have been brought to the world.
What Assange did was 100% an act of truth-telling, exposing to the world what the war in Iraq in fact was and how the US military behaved and lied.
End of Dean Yates. On transcripts, it's decided rulings are to be withheld in case judge wishes to amend them, but it's for the parties to decide together what happens with the rest of them. Adjourned for today. Back Monday. #AssangeCase

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