Thread by @Consortiumnews

Our live updates from the #Assange Renewal Appeal courtroom - Day 1 afternoon session - will be on this thread.

@unjoe @CathyVoganSPK Court in session again.

@unjoe @CathyVoganSPK Mark Summers speaking again for the defense.
Continuing with prior cases in the US relating to this case. Prior publishers of many source names only had passport confiscated. Daniel Ellsberg, a state employee, was not prosecuted.

@unjoe @CathyVoganSPK MS: There are many publications since Ellsberg of classified material, especially on , that have gone un-prosecuted. There is NO precedent in US law for prosecution of publishers. Such a crime was unforeseeable (re Article 7 ECHR / 5th Amendment).Cryptome.org

@unjoe @CathyVoganSPK MS: Only whistleblowers, usually state employees under NDA - have been prosecuted. Citing Rosen prosecution, he was an agent for a whistleblower. The notion that any publishers could have been put on notice they would be liable was rejected by every expert witness.

There is no precedent in US jurisprudence of prosecution of a publisher of classified. There certainly wasn't any way at least in 2010 that anyone, including #Assange could have foreseen this indictment.

MS: Article 7 is not negotiable. One can't retrospectively claim a crime was foreseeable when it wasn't at the time of an alleged offence.

DJ said this should be argued in the US on 5th Amendment grounds, but since Article 7 was already engaged, she should have dealt with it.

MS: Citing a French extradition request, it was decided the UK must decide that it ratifies its own laws.

Human Rights law can not be regarded as merely a protection after extradition. Domestic law must engage with it.

DJ ignored differences between Article 7 and 5A

MS: DJ was faced with a flagrant violation of Article 7 ECHR. It was her duty to engage with it and she failed.

MS: Moving on to Article 10, the free speech issue
The Strasbourg would see Ms Manning's actions as deserving of whistleblower protections, and Mr #Assange's as protected under Article 10.

MS: Citing a 2008 case where employee blew the whistle on his own company for tax evasion. Could had never used the term "whistleblower" before, but it developed a range of protections.

MS: Freedom of expression protections apply when the whistleblower is a member of a small group of people privy to the information, who come across it in the course of their duty.

Judge Sharp but wasn't the allegation that Manning actively sought it? [clearly referring to 'Most Wanted list]

MS: No

MS The expectation of the court is that a whistleblower will seek internal remedy, but there are cases where external exposure is necessary, when the behaviour is on the part of their employer. I this case the whistleblower is protected under Art. 10.

Article 10 protection criterion 2: Are the evidentiary documents authentic? 3: Is the whistleblower convinced they are truthful? 4: Is there a public interest? All 4 apply to Manning and exposure of state criminality.

The court will balance the public interest against duty to secrecy. The court's position is that public interest may override even legal duty of confidentiality.

MS: Disclosure of unlawful behaviour is in the public interest and this can be supra-national, which is obviously the case with Manning. The court will weigh whether the damage is outweighed by public interest.

[General Robert Carr's] evidence was that no one was harmed by her revelations.

MS: The court would ask whether the revelation of names of innocent people is outweighed by the public interest. The Strasbourg would say that Manning's information was used by it in the El Masri case.

It would say a 35 year sentence for exposing apex criminality is off the scale of disproportionality.

MS: Once we recognise Manning would have had Article 10 protection, it would seem frivolous to consider prosecuting the publisher of her information. But on to that it add protections for freedom of the press public debate.

In response to the suggestion that #Assange conspired with Manning the court would say, well her leak was protected. And it would have no evidence of harm.

MS: The Strasbourg court would apply the ordinary framework to #Assange.

Cites journalist who came across military information and published it. Court would look at the public interest, and whether it is outweighed by obligations regarding secrecy or harm.

MS: Strasbourg court would look at the benefit to the public of disclosing state crime - such as ending a war, as in the case of the Iraq War Logs.

DJ doesn't undertake an Article 10 analysis.
Judge Sharp contests
MS: Nowhere does DJ consider public interest, only focuses on Official Secrets Act and parliamentary statutes.

Judge: DJ considers disclosure of names as potentially causing harm. What is the benefit?

MS: Exposure of state crimes

Judge: But that can be done without revealing names

MS: Names were revealed due to the behaviour of one of the media partners. But it should be weighed that no one was harmed, and enormous benefit was reaped. What's clear was that DJ didn't balance.

MS: The Strasbourg court would realise that the consequences of imposing strict liability for whistleblowing would be that war crimes would continue with impunity.

MS: Re the password hash allegation the Strasbourg court would say that if it was for covering Manning's tracks, this is a perfectly normal activity. But if it was for news gathering, then punish that, but don't extrapolate that the subsequent publication of news is illegal.

MS The Strasbourg court would say #Assange has Article 10 protection for publishing truthful information of the highest possible public interest.

Had DJ, engaged with Art. 10 balance, she would have 1st acknowledged Manning's whistleblower protection & then added publisher protection.

What #Assange is facing also engages Article 3

EF for the defence. Assistant DA Gordon Kromberg says #Assange as a foreign national would not have First Amendment protection.

Judge: Am I right that there was nothing submitted on the protection of foreign nations?

EF: Yes, we only have Kromberg say he may argues against 1A protection

Judge: What does judge say?
EF DJ says no protection outside the US for foreign nationals abut there is no authority to suggest #Assange wouldn't have 1A protection once inside the US.

EF: But that is exactly what Kromberg is threatening to assert. Mr Pompeo said this too.

EF: If we are weighing up the risk of no First Amendment protection for Mr #Assange we must consider what the US prosecutor and Mr Pompeo have threatened.

Judge: And there was no assurance from the US relating to 1A protection for foreign nationals.

EF: No

EF: Ground 4 - Unfair trial
Inaudible - EF's voice breaking up - but something to do with sentencing

EF: The publication of Vault 7 inspired anger in Mr Pompeo. #Assange was not charged but he could later face new charges that would incur the death penalty.

EF It was held by the US not to breach the rule of Speciality (piling on more charges) but taking the case of Garcia, who was initially charged and convicted for distributing marijuana, but punished for murder.

Justice Ousley said this this did not violate Speciality so what could happen to #Assange once in the US is an arguable point.

EF: Final ground of appeal. My colleague spoke of a plot to kidnap or kill Assange, which 34 US officials reported to Yahoo News. Mr Pompeo said the claims were partly true - but taken in the context of the legal implications of his claim that @WikiLeaks was a "hostile non state intelligence agency", which give licence to CIA to act without congressional oversight, there is a real risks under Article 2 & 3.

EF: CIA could impose SAMs on #Assange any time they like.

EF: Jurisdiction of the Secretary of State. She claimed could not deny extradition once ordered by a court, except if prohibited by Sections such as Death Penalty, Speciality etc. SoS Teresa May discharged Gary McKinnon on human rights grounds but introduced legislation so that it could not be done again.

We say it can. The SOS can withdraw this legislation on grounds that it is inconsistent with the treaty.

EF We do rely on fair judicial power, but our Secretary of State should be able to rectify bad law.

In the case of #Assange, it must be recognised that this is a political offence.

MS for the defense: Article 18 of the treaty permits the US to add more offences, providing they are extraditable offences. In #Assange's case, aiding and abetting treason, which can carry the death penalty.

It is possible in America to reformulate these charges into a capital offence. The UK prohibits any exposure to the death penalty.

MS: Assurances must specify there could be no exposure to the death penalty. In the US this could happen to #Assange, but the DJ dismissed the risk.

MS the assurance do not assure against the possibility that #Assange's charges could be reformulated into capital offences.

Judge: Can aiding and abetting treason be committed by a foreign national?

MS. It seems so

Court in recess until tomorrow

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