Thread by @Consortiumnews

Our live updates from the #Assange courtroom on Day 2, morning session, will be on this thread.

@unjoe @CathyVoganSPK We are connected to the #Assange courtroom for Day 2 of his Renewal Appeal. Today we will hear from the prosecution and we have view on Clare Dobbin KC preparing her papers. No sound from the courtroom as yet

@unjoe @CathyVoganSPK Court in session. No sign of #Assange.

@unjoe @CathyVoganSPK Judge: We are aware there were technical problems yesterday which impeded many journalists from following the proceedings. Apologies. Please let us know if they persist today.

Judge to defence: Can we have any new points of order in writing?

Summers? replies but we can't hear him.

Judge discussing with inaudible defence regarding new points.

Clare Dobbin speaking but we can't hear her! judge has asked her to remove papers from over her microphone but it has not helped. Can not hear her.

Catching the occasional word from Clare Dobbin KC, we hear her say that Mr #Assange was party to the theft of documents with Chelsea Manning.

Pause again in the proceedings. None of the journalists in the annex can hear the barrister, only the judge.

Court back in session. Barrister now audible.
CD: The DJ rejected that the defendant should me considered a journalist.
CD: It is alleged that this prosecution is a construct to punish him for his political beliefs, but the US administration has changed.

CD: The 2nd superseding indictment was to expand on the allegation of hacking. The DJ carefully considered the evidence. I wish to take you to some of the incomparable Article 10 cases.

CD: It is alleged that @WikiLeaks publishes stolen documents & that #Assange assisted a member of the US army in an unlawful act.

Un-redacted names were published, at grave the risk to people & I will take you to the effects. This also damaged the USA.

CD: The affidavit shows the vast & indiscriminate nature of the documents supplied to @WikiLeaks by Miss Manning.

CD: What distinguished the appellant is that he aided Ms Manning & enabled her to disguise her identity.

NOTE: Assistant AG Gordon Kromberg notified the court that it was now “…not alleged that the purpose of the hash cracking agreement was to gain anonymous access” to any of the databases in question. (Page 124 Assange HC submission.)

Clare Dobbin KC has dropped her papers and lost her place...

CD: Manning was not a simple whistleblower. She was responsible for putting people of risk.

CD: Manning was in direct contact with the appellant who encouraged her to steal documents and disclose them, aided by the appellant to disguise her identity.

NOTE Forensic examiner in the extradition hearing said Manning wanted help to log into a local computer, where there was no classified information stored. All classified material was on external databases, for which Manning had password access and clearance.

CD: US had to take extensive action to avoid risk the disclosure caused.

CD: This wasn't a "slip" or "error". It was the publication of a vast amount of material.

Kromberg affidavit states:
Grand Jury found probable cause for charging #Assange based on the evidence they were given.

Although this prosecution is unprecedented it is consistent with US law. There is no immunity for breaking US law.

CD: Citing another difference between #Assange case and that of Mr Hague, whose passport was simply cancelled. Says he was outside the jurisdiction of the US, travelling around the world.

NOTE: Assange too was outside jurisdiction, travelling around the world.

CD: Mr Kromberg was objective but the appellant asserts he was not.

More details on the analysis of Kromberg, the people put at risk and wider consequences.

CD: As a result of Manning's disclosures & @WikiLeaks publications, people around the world became reluctant to come forwards as human sources for the US.

CD: The allegation is not just that he conspired with Manning. Since starting @WikiLeaks he recruited hackers.

CD: @WikiLeaks can not be regarded as akin to conventional publishers or journalists. "Teenager" (aka Siggy) was recruited after a public presentation where the appellant encouraged people to disclose information.

CD: The purpose of @WikiLeaks was to obtain protected information in association with various hacking groups. This takes them well outside the activities of a responsible journalist.

CD: Our findings are unimpeachable and the DJ was right in her judgement. Sources' names were revealed. This was of no public interest.

Judge: Wasn't this information published by others first?

CD: Assange was responsible for putting the information in the hands of others in the first place.

CD: The 2003 EA omits the political offence exception. This was a deliberate decision as a matter of domestic law.

Judge: Why?

CD: The meaning of S.81A is clear.

CD If a treaty contains a provision that parliament has excluded in domestic, it is not for the courts to challenge that. Lord Mustelle said the political offence provision was out of date.

CD: Incorporated treaties can give rise to statutory construction but only after careful consideration.

The case of Norris shows that current legislation impedes onerous states from preventing extradition.

CD: On human rights... This country can determine whether it has fulfilled its obligations

CD: There has been no abuse of process. In the case they cite (Askell?) there was protection in domestic law and what was abusive was there an attempt to get around that domestic protection.

CD: None of the cases the defense cites are of any application. The political offence exception does not apply in domestic law. The DJ found that the appellant had no rights in domestic law to have his extradition stopped on grounds of a political offence.

CD: Defense alleges that appellant being persecuted for his political opinions. This is a bad faith allegation. Any comparison to the Refugee Convention is not helpful. Any offender could claim that their acts are a product of their political opinion.

We have a good faith relationship with the US. The appellant is lying.

CD: Defense claims Obama did not want to prosecute and the subsequent prosecution was the product of animus.

Dj rejected this, saying the prosecuting administration had praised @WikiLeaks. The appellant was arrested because Ecuador had rescinded his asylum on the basis that it had been a way of avoid British law.

CD: Assurances say that the appellant would be sent to Australia after sentencing. There should be no concern about what will happen to him in the US. The Yahoo News article was not evidence that was heard in court.

CD: On Article 10 concerns. The clim is that this is an unprecedented prosecution of a journalist. But this is not ordinary journalism.

CD: No Article 10 protection because of the nature of allegations in the 2nd superseding indictment, notably that the appellant was a party to hacking, and not a passive recipient of information. It is his complicity & incitement to steal material that sets him apart from normal journalistic activity.

CD: Responsibilities of journalists in respect to Article 10. It does not concern itself with the content but the lawfulness of their conduct.

In the 'Spycatcher' case the defense cited, the material in question was considered outdated, and not likely to harm national security.

When it comes to disclosing names there is no public interest served by that.

CD: Manning was not a whistleblower but a soldier who was responding to solicitation from the appellant. What was at issue here is the disclosure of national defense information - or of Official Secrets Information.

The appellant didn't have to disclose names.

NOTE Defense stated that this was done, in the case of the unreacted State Department cables, by one of @WikiLeaks media partners.

CD: There is dual criminality because the appellant would be prosecuted under the Official Secrets Act, since his unlawful behaviour would not draw Article 10 protection.

Judge: If a journalist in this country had information about wrong-doing by an intelligence agency & encouraged an employee to provide information the journalist would be liable.

CD: There's not a straightforward answer,

Judge: Are you saying there should be no factual balancing?

CD That's what Schaeler says but one would have to look at the conduct.

CD: On Article 7 (foreseeable offence)
The US is very careful about introducing novel indictments that engage First Amendment (free press) issues. But the conduct in this case is unprecedented.

The case of Rosen, cited by the defense, and referring to the Pentagon Papers was about prior restraint.

One must come back to the affidavit of Kromberg. The US does not allow journalists to commit crimes.

CD: If this case goes to the ECHR, that could will have the same question to ask about the lawfulness of the appellant's conduct in determining whether he is protected by Article 7 (5th Amendment in US).

NOTE: It is clear Assange's Article 7 and 10 protection hinge on belief in the prosecution's hacking allegation.

CD: On S81, it was alleged that the US could assert that the defendant may not have First Amendment protections on account the grounds of his nationality,

Judge: The defense said this was a possibility, and that it had been threatened.

CD: The DJ did not have sufficient evidence to accept that argument in respect of 81B.

Judge: Is there any evidence that a foreign national would be protected under 1A?

CD: I don't think so...

NOTE: That could imply that there was insufficient evidence to dismiss the risk.

Judge calls on Edward Fitzgerald to explain the risk that #Assange could not be protected by the First Amendment.

EF: The prosecutor might argue that he doesn't have any rights because he's a foreigner. The point was that there was no such position that could be referred to.

CD: Some of the witnesses suggested the Assange prosecution would offend 1A, and that he might.

Judge: I want consensus on this point in writing.

@unjoe @CathyVoganSPK @threadreaderapp unroll