💧Mary Kostakidis Profile picture
Sep 18, 2020 55 tweets 8 min read Read on X
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

Dec 29, 2023
How the U.S. has fueled Israel's decades-long war on Palestinians - Rashid Khalidi, Los Angeles Times 🧵

‘Whoever the settlers were and wherever they came from, with whatever connections to the land, the resistance to them would have been essentially the same as that of the Irish, Algerians, Native Americans, Zulus or Libyans to intruders bent on expelling them and taking the land. Vladimir Jabotinsky, founder of the Revisionist Zionism that produced the Likud Party, stated bluntly: “Every native population in the world resists colonists.” And as Edward Said noted, it was the particular misfortune of the Palestinians to be the victims of victims’

‘This process of settler colonialism produced the dispossession of a large part of Palestine’s native population and the theft of their lands and property. This was achieved through the expulsion of 750,000 Palestinians during Israel’s establishment in 1948 (over 55% of the total Arab population of Palestine at the time), and of over 250,000 in 1967, with none of them allowed to return. This phased ethnic cleansing was essential in order to turn a majority-Arab country into a majority-Jewish state. It could not have been done in any other way, since it proved to be impossible to “spirit” the Palestinians “discreetly” out of the country, a desire that Theodor Herzl confided to his diary. For the last 56 years, these same practices of colonization and dispossession have proceeded inexorably in the occupied West Bank, East Jerusalem and the Golan Heights.’
‘The United States has regarded the military occupation of these territories and their gradual annexation and absorption into Israel with studied indifference for more than half a century. This contrasts glaringly with its muscular response to Russian occupation of part of Ukraine for a much shorter period. It is hard to give credence to U.S. claims about supporting self-determination and freedom for Ukraine while it has provided decades of essential support to Israel for its occupation of Arab territories’
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Aug 8, 2023
In an article on the future of the US alliance in the Australian Journal of International Affairs, the Co-Chair of the Parliamentary Friends of the United States and of #AUKUS in the Parliament, Luke Gosling, says moving from ‘interoperability’ to ‘interchangeability’ as @… twitter.com/i/web/status/1…
He cites a Loewy Poll that shows the majority of Australians support the alliance but Gosling worries that an even greater majority fear entanglement in a war. “Still, it’s heartening 76% of Australians believe the US would defend Australia..”.

This is a failure of the our… twitter.com/i/web/status/1…
The article goes on to say that to shore up support for AUKUS itself & address the concerns of sceptics, the US Studies Centre proposed an annual statement to parliament to define a positive vision of what the alliance stands for & Marles delivered the first, on the alliance and… twitter.com/i/web/status/1…
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Apr 16, 2023
FM Penny Wong will address @PressClubAust today to respond to criticism of her and of AUKUS by Paul Keating.

She will also have to explain the shift in her position since moving from Opposition to Govt, pointed out starkly by Hugh White in The Monthly.

The Stepped up… twitter.com/i/web/status/1…
She is spinning the US battle to maintain hegemony as a battle to preserve multipolarity. Gobsmacking hutzpah.
The US is going to help us keep the peace in the region. Such is its track record…?
Read 13 tweets
Apr 15, 2023
Excellent article by Hugh White:

‘if AUKUS stands, it is inconceivable that Aus would not fight by America’s side if America ever goes to war with China.’

AUKUS is the NATO of the Asia Pacific - we become like any NATO nation, a US base for global war themonthly.com.au/issue/2023/apr…
In Opposition, @SenatorWong
‘clearly understood that in calling for a new multipolar order in Asia she was advocating an outcome very different from the goal of US policy.’
‘The US, she said, should “recognise and embrace the fact that multipolarity in the region is likely to get stronger”. In a remarkable passage, she called on Washington to redefine its objectives, to make it clear that its aim was not simply to contain China and perpetuate… twitter.com/i/web/status/1…
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Apr 15, 2023
Here is something to retweet over and over in our troubled times ahead, and be forever grateful to the great @DanielEllsberg

Do not underestimate the power of protests - it gives hope to the world and clips the wings of war mongers.

(short thread) #nuclearwar #Russia #Chinatwitter.com/i/web/status/1…
Regarding the trend among youth “to favour humanistic values” that gives Ellsberg hope.

Ref: Island Off the Coast of Asia, Instruments of Statecraft in Aus Foreign Policy, Clinton Fernandes, MUP Image
But since that assessment regarding Vietnam, protests also curtailed the contribution Howard made to the Iraq war: ‘an internal study of the Army’s performance showed that public opinion was a major factor in reducing the size and lethality of force’ and ‘Australian casualties… twitter.com/i/web/status/1… ImageImage
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Mar 22, 2023
What does it take for our govt to get it?
No understanding of recent history of Ukraine.
How about getting hit in the face with a wet fish?
The Russians are fighting Nazism in #Ukraine #Russia@SenatorWong⁩ ⁦@AlboMPImage
Here’s some more research if you still doubt the nature of the situation in #Ukraine

“Ukraine’s Azov movement has grown from a militia of fringe far-right figures & football hooligans .. into a multipronged social movement that has become the envy of the global far right. In… twitter.com/i/web/status/1…
Read 5 tweets

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