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
Judgement
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.
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.
‘For Israeli decision-makers, starvation of the Gaza Strip was in the cards from day one of the war.. 1. About 30,000 people live in the southern Israeli city of Sderot. Imagine that the refrigerators of all Sderot residents are empty. In fact, they don't even have refrigerators. The bakeries are closed. The supermarket shelves offer nothing. Residents are hungry. And then, once every 24 hours, a single truck enters the city gates and distributes food, door to door. And the food on that truck? That's all there is, for the entire city.
About 30,000 people also live in Or Akiva. And in Arad. Each city gets one truck a day.
Will the residents of Sderot still be hungry by the end of the day? And what will happen after a week? And after a month?’ Cont
‘2. According official data from the Coordinator of Government Activities in the Territories, which is responsible for carrying out the government's civilian policy in those areas, an average of 71 trucks entered the Gaza Strip each day over the past month. Seventy-one trucks meant to feed 2.1 million people. One truck for every 30,000. Half of the trucks made it to a distribution center but the other half of them, brought in by the United Nations and various aid organizations, were looted en route.
It's a pitiful amount of food. But one can only wish the Sderot scenario was the reality in Gaza. The situation there is much worse.’ Cont
‘3. In Gaza, the truck does not distribute food door to door. Half of the food it carries is unloaded in large piles in remote military zones. The gates there open for just 15 minutes a day, according to a random schedule. You're reading that right: 15 minutes a day.
People loot the other half of the goods straight from the trucks. In both cases, those who manage to get to the food are almost exclusively young men, those who can carry heavy loads, run fast and are willing to risk their lives.
Over 1,000 have died so far while crowding around to get food, since late May, most of them from Israel Defense Forces gunfire.
What happens to those who can't make it to the trucks or the distribution centers? What about the women, the disabled, the sick, the elderly? What about the unlucky?
They are starving to death.’ Cont
Louise Adler in The Guardian: 🧵
‘One must acknowledge the remarkably effective Jewish community organisations in Australia behind the latest antisemitism report. Collectively, with their News Ltd megaphone, they have successfully badgered the government of the day, cowed the ABC, intimidated vice-chancellors and threatened to defund arts organisations.
With the ability to garner prime ministerial dinners, a battalion of lobbyists has gained access to editors, duchessed willingly seduced journalists keen to enjoy junkets and corralled more than 500 captains of industry to subscribe to full-page ads against antisemitism and thereby blurring political argument with prejudice and bias. It is no surprise that this relentless propaganda effort has paid off…’
On those forever quoted statistics on antisemitism:
‘16 students at Sydney University feeling intimidated by the slogan “from the river to the sea” was reframed as 250 complaints submitted to parliamentary inquiry. A childcare centre that was not in fact a Jewish centre was added to the list of terrifying antisemitic attacks. The individuals police believe were hired by criminals seeking a reduction in their prison sentences who allegedly placed combustible material in a caravan became a “terrorist plot”’’
The figures include all the ‘fake’ antisemitism attacks by paid criminals orchestrated by a crime figure not in any way driven by antisemitism, antiZionism or anti Israel motivation. As for the keffiyeh and the phrase from the River to the Sea, interpreting the symbols and slogans of another group as threatening while promoting your own as needing protection is one eyed and undermines social cohesion.
‘The publication of the special envoy’s plan is the latest flex by the Jewish establishment. The in-house scribes have been busy: no institution, organisation or department is exempt from the latest push to weaponise antisemitism and insist on the exceptionalism of Australian Jewry. One might pause to wonder what First Nations people, who are the victims of racism every day, feel about the priority given to 120,000 well-educated, secure and mostly affluent individuals…
The envoy wants to strengthen legislation apparently. Isn’t that the role of the government of the day? Who is to be the arbiter? Who is to be the judge, for example, of universities and their report cards? Who will adjudicate “accountability” in the media? Who will recommend defunding which artist? Should this government endorse this proposal, it will clearly be the envoy.
Fortunately, a suite of laws protecting us from racism, discrimination, hate speech and incitement to violence are already deeply embedded in our civil society. No university is oblivious to these laws, no public broadcaster, no arts organisation.
Educating future generations about the Holocaust has long been a priority. I hope the envoy is aware of the work done engaging thousands of school students at such institutions as the Melbourne Holocaust Museum where my own mother was the education officer for over a decade. If the envoy is concerned that school students aren’t sufficiently well versed in the horrors of the Holocaust, she might take heart from such evidence as the sales of Anne Frank’s diary continue unabated, in the past five years more than 55,000 copies were sold in Australia.
The envoy helpfully proposes to nominate “trusted voices” to refute antisemitic claims – yet again seeking to prescribe who speaks and which views are deemed acceptable. One hopes that media organisations are resolute against the plan’s determination to monitor, oversee and “ensure fair reporting to avoid perpetually incorrect or distorted narratives or representations of Jews”. It seems that the envoy wants to determine what is legitimate reportage. Freedom of the press is of less importance. Independent journalism that is factual and speaks the truth is lightly abandoned.

What is Australia’s proposed antisemitism plan – and why are some parts causing concern?
Read more
Universities appear to be on notice: adopt the IHRA definition, act on it or be warned that in March 2026 a judicial inquiry will be established as the envoy demands.
Cultural organisations be warned – your funding could be at risk too. There isn’t a cultural organisation in the country that doesn’t have well-argued codes of conduct for staff, artists and audiences – in place well before the 7 October attack to combat homophobia, racism and hate speech. Now it is proposed that a Jewish Cultural and Arts Council is to advise the arts minister. To privilege one ethnic community over others is deeply offensive and dangerous.’
And there I’ll stop because Segal’s shopping list is deeply offensive and dangerous.
Breaking
ABC changes its position and defence, now acknowledging @antoinette_news IS Lebanese . A recognition the race exists 🤦🏻♀️
Today’s hearing began with the ABC apologising for filing an unredacted affidavit revealing the name of a complainant.
Two own goals for @ABCaustralia
With respect to the very wise move to change their position on race in this case, I think it can be assumed Chair Kim Williams would have come down on management like a ton of bricks. He has been outspoken on change required at the broadcaster, and this catastrophic case is public confirmation of the rectitude of that position.
@ABCaustralia Currently Ahern being cross examined by ABC - he is held responsible for hiring Lattouf. Next today will be then Chair Buttrose followed by Green, her direct supervisor whose evidence will be an integral piece in the puzzle of what Lattouf was told, as she did the telling.
In light of the ongoing court case brought by @antoinette_news against the @ABCaustralia for unfair dismissal, it’s worth recalling her proposal to the ABC in order to settle the matter which I’ll post in a thread below.
Instead, the ABC decided to defend their decision, exposed in excruciating detail and at enormous expense to the taxpayer - we are funding the 14 month battle (so far) and the massive US law firm Seyfarth the ABC has engaged to fight it. It will be costing a fortune.
Here is what she had asked for to settle it months ago:
🧵
Fascinating day in court as @antoinette_news lawyer outlines content of emails between senior members of the ABC prior to her HRW post, the pressure they came under from the lobby group Lawyers for Israel from the moment she was on air, because of her known political opinions, their conclusion the position was untenable but that they could not sack her abuse she had done nothing wrong and for fear of the phenomenal ‘blowback’.
The manner in which she was sacked - called to a brief meeting and told to collect her things and leave the building did not follow the proscribed procedure under the enterprise agreement according to her lawyer.
Her sacking followed her repost of a HRW report stating Israel was using starvation as a weapon of war.
Court adjourned briefly..
If you wish to follow, livestream here
Lattouf’s lawyer lists numerous additional complaints from the lobby group to the Chair and MD on the day she was sacked, and The Australian, which evidently knew of the complaints, called the ABC.
He says emails show ABC senior figures were sympathetic to the Israel lobby’s position.
A slide of AL’s post simply saying ‘HRW reporting starvation as a tool of war’ is shown - apparent this could not be construed as anything but a statement of fact, and in addition, with ABC news stories appeared on the HRW report prior to and after AL’s post.
Her lawyer refers to an unwritten expectation that ABC employees will not do at any time anything that may convey the view they are not impartial.
He says ABC claims it imposed on AL a bespoke rule (not to post about Gaza) and then sacked her for breaching that standard.
If Senior Exec Oliver Taylor asserts the post expresses an opinion, then the dismissal is because of her political opinions - ‘opinionated’ and ‘partial’ mean the same thing, so they hold the post revealed impartiality.
If Senior Management were agnostic on the Gaza issue, then they succumbed to a campaign.
Either ABC capitulated to a lobby or she breached a standard specific to her.
He says the ABC submission is long and an elaborate navigation for the ABC narrative, characteristic of a lawyers drafting, when there is ample material in the contemporaneous emails, in order to reinterpret clear statements in emails; the affidavits don’t deal with critical issues - who gave the direction and when? Her supervisor Green stated in their meeting that she did not give Lattouf a ‘directive’ not to post, she ‘advised’ her to avoid it. The complex affidavits don’t describe why the post was ‘partial’ - the post doesn’t appear in Taylor’s affidavit at all ie the very thing that was ostensibly the reason for the sacking.
Apropos communications, the ABC are prohibited from using Signal as they are subject to the Archives Act and can’t delete.
ABC Witness statements are he says replete with terms like ‘trust and confidence’, ‘impartiality’ etc
Oliver Taylor believes she was given a direction ‘bespoke to her’ not to post about Gaza, and her post ‘may’ have breached that direction.
He says the ABC justify not following their protocols for dismissal because a presenter can be removed even if she hasn’t done anything wrong (rostering change etc).
Lattouf asserts if she was not of the Lebanese race she would not have been removed in that way.
The ABC will assert says there is no evidence there is such a thing as a Lebanese race. The ABC lawyer rose - he objects to this being run as a discrimination case because it departs from the pleadings.
SAl’s lawyer says the issue is whether she was dismissed because of the HRW post, or because of objections to her political opinion by the lobby group and the Chair of the ABC.
Also, AL’s lawyer says that there could be no rational basis for Taylor to believe her post was a sackable offence. That the evidence she was given a directive particular to her was implausible given Green told management she didn’t issue a directive. Nevertheless, Taylor concluded a directive was given. And he thought there ‘may’ have been a breach of ABC social media policy.
1 of 2 for this morning session