I am not saying that is what will happen in this case. However I’m reminded of the convoluted thought gymnastics of Logic/Philosophy 1
Deleted because I made an inappropriate comment in haste. But I also said, perhaps she means the individuals communicating the information in the cables were fabricating it. I can’t see how else you could arrive at this conclusion given the US certainly regards them as authentic
Next witness on video - Carey Shenkman
He is continuing from yesterday afternoon:
Cross examination by the Prosecution Junior counsel: you are not suggesting there is any law that precludes a publisher from being prosecuted under the Esp Act.
CS: agrees, yes the law allows that but there is also the US Constitution
there is a strong argument that the first Amendment would present a serious issue.
Prosec: is there a case that establishes that?
Carey: has never been tested
Prosec: was the door left open by the NYT case
Carey: that was not th issue argued before the Supreme Court
Prosec reads from Pentagon Papers decision saying the decision may have been different had they decided to prosecute, that a criminal prosecution may have been upheld, also that only one judge on the Supreme Court held strongly that the first amendment should prevail. Do you agre
They left it open for the press to be prosecuted.
Carey: quotes another case showing the opposite.
Prosecution asks him to say whether he accepts what the court said.
Carey: there are counter arguments. These issues are theoretical.
Carey : the NYT case prohibited the restrictio
restriction of the NYT. What is the end point of our conversation? Why are we litigating hypothetically?
Prosec: are you saying you aren’t qualified to comment on the ambit of the Esp Act - you are supposed to be an expert on that, are you saying you’re not qualified?
Carey: No
Prosec asks a question re whistleblowers & Carey making the point that the two are treated very differently.
Prosec: a number of courts have declared the Esp Act is not too broad. Do you make clear anywhere in your report that the Act has also been refined thru
Judicial interpretation.
Carey: primarily in spying situations & most scholars would say it has been broadened.
Prosec: the second judicially imposed requirement is that the disclosure would be damaging
.. ensuring the govt can’t abuse the statute.
this refinement prevents the statute from the effect of the first amendment
and precludes for arbitrary enforcement.
Do you see that?
Carey: what’s the question?
Prosec: why don’t you refer to this at all?
Carey: I refer to scholarship on this in my report. The passage you cite describes one element but there are other aspects of the law that affects a
The law can be applied to a third party, a member of the public & as you get further away from the whistleblower, the same penalties apply & that is what has concerned scholars
Prosec: the Executive doesn’t decides the scope of criminal law, the court does - says he has made a mistake in his statement.
Carey disagrees - you are talking about the response of the court, I am talking about the political decision to take action & the effect on press freedom
Carey talking very quickly & pointing out to her she is confused.
Arguing about the purpose behind Section 793 of the Esp Act.. she has to do some reading...
Shenkman knows his stuff & the issues are complex & nuanced, & he is doing his best to communicate all of this but again, the Prosecution requires simple answers to simple questions.
Prosec: these sections only apply to spying but the statutes .. he interrupts: lots of whistleblowers have been prosecuted under Obama
Prosec: but the intent of the Act was it was intended for spies.
Carey: tries to tell her what they may have intended is irrelevant.
He keeps trying to explain to her that the issues she is raising are irrelevant because those cases don’t involve a journalist.
Carey: do you think serious scholars would risk their carriers spouting nonsense? You are focussing on one point on which there is much dispute
Serious scholars would not be giving you the binary answer on complex issues, I appreciate the job you have to do but.. she cuts him off.
She asks another question & he tells her rather than wasting the courts time perhaps she shouldn’t be reading out slabs on what other people
And saying & ask him questions.
She points out it is her job to point out to the court where he fails to be objective.
Asks another question & he is talking about the deleterious effect of investigations of the press - its not just successful prosecutions that are needed to curb
The press.
Prosec: all the examples you give are of serious publications
Carey: not at all, they are outlets that had views in opposition to prevalent policy but were greatly respected - gives great examples but talking too quickly for me to tyyyyype
The first amendment & Esp Act don’t make any disctinction (between publishers serious, fringe, etc)
Referring to the Pentagon Papers being published in their entirety by Deakin/ Beacon .. a precursor
Saying that he thinks the decision not to prosecute the NYT in this case is political
She is asking about the allegation JA conspired a source, he says they have tried this befor
tried to allege conspiracy & it hasn’t worked. She reads out the count & asks him if he understands it is only about docs with names. Do you understand the nature of the allegations? Do you accept they bare no relation to the other cases you mention?
Carey pointing out points in
of concern in past cases.
She says it’s a frivolous assertion.
She asks whether the computer fraud act has limited application, & says she wants a yes or no.
He tries to address the password question but she won’t let him because she wants to read from Kromberg judge supports
Kromberg uses “hacking”. Asks him about an academic’s interpretation
Carey: it’s contradictory & controversial, & she is oversimplifying things.
He says : you can quote his words in 2010 or you can take his words in 2019 about this case.
Summers: taking him thru some examples in his statement.
Carey: the majority of these reports involved ongoing conflicts
Summers: some of the press outlets published Top Secret info
Carey: yes incl communication technology
Carey: there are no docs in this case that are top secret.
Summers asks what he his response is to the comment his reference to these cases is “frivolous”
Carey: takes them in his stride “for my own well being”.
Summers: asks him about the “incontrovertible” judgement the Prosec
Summers is giving him the opportunity to go thru the cases & points she made, giving him the opportunity to comment.
Carey: you can’t look at one opinion & conclude it is an uncontravertible principle of law - that’s not how the law works.
Now discussing journos can’t engage in criminal activity - do you agree that soliciting a govt employee to hand over classified info is criminal ?
Carey: no, many cases have involved this sort of “conspiracy”
It’s never produced an indictment - one of the concerns the impact it would have on news gathering.
Summers: te the case of Rosen, a district court judgement
Carey: there is no court below it, & the opinion in Rosen of the application of Sect 793 to the press was disregarded. No one prosecuted the press for receiving the material. Summers is demolishing the Prosecutions argumen
Keeps saying he is just trying to “work out how bright is Rosen’s star” as precedent
Summers: how foreseeable was it that a foreign publisher would be prosecuted?
Carey: Unimagined & there is ambiguity whether it is possible
Carey: common theme for context: they don’t support the administrations policies, are revealing misconduct or revealing information contrary to what the administration is revealing.
Carey finished
Judge asks them to consider whether the transcript that has been commissioned by a private party should be made available to the press. (Yeeeeeees!)
Fitzgerald asks that the Prosecution ensure their docs are provided in time for the witnesses to read them.
Also says the Defence
Will undertake to do same for the two prosecution witnesses, of which Kromberg is not one, that they would have liked to cross examine Mr Kromberg. (Wouldn’t we all. We have heard an awful lot from him). Very short break.
I apologise I have somehow missed the name of the Prosecution junior Counsel. Because you have not been able to see and hear her performance, I feel compelled to try to convey the defining characteristics. She speaks slowly, loudly, with an ever so slight Irish lilt in her
her delivery, which is at all times sneering and supercilious.
I find myself asking why we don’t get any of that from the Defence.
Statement of Dean Yates @DeanPTSD
Fitzgerald summarising:
Reuters Bureau chief in 2007 in Baghdad.
2 staff were killed by US forces possibly in a clash with militants, tried to obtain info from senior military, & for the return of the Namir’s camera, it was reported as a firefight, the returned camera showed
No evidence of a clash. In an effort to improve safety for our staff, I tried to clarify the rules of engagement. The General showed us photos of weapons collected from the firefight. He was shown the beginning of the tape in the lead up to the incident. Judge interrupts -
Irrelevant, get to the releases - saw what happened to Said & Namir judge interrupts again - what’s the relevance?
Fitzgerald describes how Said survived the first shots & ....(reading quickly in case she interrupts again)
I immediately realised the US military had lied to us -
This statement is so powerful but can’t type quickly enough & Fitzgerald has to motor thru it
Had it not been for Manning & Assange, the truth I’d what happened to them would not have been revealed, the truth about what the US was doing in Iraq.
Fitzgerald gone to talk to JA
Fitzgerald: there are 5 references in this to the importance of the rules of engagement which are the subject of one of the charges
Lewis: we have no questions of this witness, we accept his evidence.
Judge: comments on request from the press to release the transcript? They will consider over the weekend.
Shot of Gareth talking to JA.
Btw Prosecution said they have paid for half of it, so I gather the Defence & Prosecution have commissioned the transcript
, & Lewis said the request should come to them ie a matter of negotiation with them.
See you Monday
Here is the witness statement of @DeanPTSD

Here is the witness statement of Khaled el-Masri


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More from @MaryKostakidis

11 Aug
I’ll be following the UK High Court Appeal by the US

in the case of Julian #Assange

and **live tweeting**

Starts at 10.30am London time on 11 August - in just a few hours.

You can follow this thread, and quite a few others!
It appears this Court has allowed other observers besides journalists, unlike Judge Baraitser who barred human rights groups and parliamentarians form the Extradition hearing.
Amnesty International’s rep has been approved as was the Australian Parliamentary Assange supportgroup
This is not the US Appeal per se.
Tonight’s preliminary hearing
is to appeal the two (of 5) grounds on which the US was denied permission to appeal.
Read 20 tweets
6 Jan
#Assange Bail Hearing 6 January 2021
On the videolink to London and waiting to cross to the court room.

Within 2hrs we’ll know if Julian will walk out of that court room or head back to Covid infected Belmarsh to spend potentially another couple of years while appeals are heard.
They are having internet problems. Our screen was frozen for 10 mins. They fixed it but mine is frozen again. Trying to reconnect. @AndrewJFowler & I still in the virtual waiting room
I’m in.
Read 49 tweets
4 Jan
#Assange Extradition Decision

Joined the videolink to London’s Old Bailey.

There are 12 of us on this link so far, but journalists can join for another half an hour.

Well cross to the court room shortly before 10 London time.
ABC News Europe correspondent @lb_online also on the link
Carrie-Ann Greenbank from Channel 9 also
Read 60 tweets
1 Oct 20
Extradition September hearing Day 17 (19 incl 2 Covid),
expected to be the final day.

Joined the video link waiting to cross to the court room.
Today we expect to hear an update on the Spanish surveillance case and summaries of the remaining witness statements.

I’ll provide as much information as I can on this thread.
Looking forward to providing a wrap of the hearings to @PhillipAdams_1 during the court lunch break

Read 25 tweets
30 Sep 20
Extradition September hearing Day 16 (18 incl 2 Covid)

Joined the video link waiting to cross to the Old Bailey.

In a significant development yesterday, the judge agreed to accept the statements of 2 former UCGlobal employees without requiring them to reveal their identities..
.. This was a critical decision as the only protection they have (besides armed guards) is the fact that their former boss would be the suspect should anything happen to them given he alone would know their identities, Defence argued.

In accepting the Spanish court’s ruling on..
.. anonymity, these witness statements will form part of Defence evidence, paving the way for the extradition to be denied on the same basis the criminal case against Dan Ellsberg was thrown out: illegal activity on the part of the CIA. In Ellsberg’s case, for breaking into ..
Read 71 tweets
29 Sep 20
Extradition September hearing Day 15 (17 incl 2 Covid)

Joined the video link waiting to cross to court.
There are 12 of us on this videolink today. Perhaps @kgosztola can tell us how many journalists are on the link at the Old Bailey
The first witness is Maureen Baird, a former senior Bureau of Prisons official in the US.
Read 113 tweets

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