Day Three Assange Hearing—Defense Witness Dismantles Key Elements of Government Case
September 9, 2020.- The third day of the resumption of Julian Assange’s extradition hearing is over at Old Bailey in London. With remote video access to the courtroom, this is Consortium News‘ report.
Defense Witness Dismantles Key
Elements of Government Case
Consortium News is following every moment with remote video access to the courtroom, one of only about 30 news organizations with such access. Follow our live Tweets and check back here often as we will provide updates throughout the day and a video report on CN Live! within 30 minutes of adjournment.
In the afternoon session, Trevor Timm, a trained lawyer and executive director of the Freedom of the Press Foundation, took the virtual witness stand for the defense and in sparring with prosecutor James Lewis QC on cross examination singlehandedly dismantled key parts of the government’s case.
Over the past two days the government has stressed two key points: that it is not prosecuting Assange for publishing but for revealing the names of informants. Timm testified that in fact the indictment is for passively receiving and possessing classified information beyond those documents that revealed informants’ names.
The bigger point Timm made was that it was a consensus view of First Amendment advocates and media organizations that while revealing the names of informants may be unethical, it is not illegal. He said that it was an editorial decision whether to publish such names, and while media organizations might disagree, it was not up to the government to make editorial decisions.
It is a point we have long made that there is no statute against revealing informants names. The government considers their names defense information protected by the Espionage Act. Timm further testified that the U.S. Supreme Court has in the past protected speech, however unsavory.
“I’m not saying WikiLeaks had perfect editorial judgement or that The New York Times does, but that doesn’t mean that differences of opinion make it illegal,” Timm said. ” The government should not decide whether it was sound or not. The decision is whether it is illegal and this publication was not illegal, and that the indictment making it illegal would criminalize journalism.”
He added: “In the Manning trial the U.S. government could point to no specific deaths” from the revelation of informants’ names. “But regardless, the First Amendment is not a balancing act between harm and benefit. Sometimes it allows for odious speech. Some harm might result from speech, but our people have determined that having wide latitude for journalists and free speech make sit vital they are protected, even if it comes close to a line that makes us uncomfortable.”
“Why should your opinion be more important than what a jury decides?” Lewis shot back.
“On constitutional issues it goes beyond a jury,” Timm said. “A judge could rule it unconstitutional before it gets to a jury.” Lewis then told Timm that journalism Mark Feldstein, who testified on Tuesday for the defense, said it was “wrong to publish names putting them in moral danger.”
“I didn’t say it was right or I agreed, but merely that it would be unconstitutional for Assange to prosecuted for this act,” Timm responded.
Lewis then said Gordon Kromberg, an assistant U.S. attorney in Alexandria, Virginia, where Assange would be tried, declared that Assange was not a journalist. Timm said it was irrelevant because Assange had engaged in journalistic activity protected by the First Amendment.
Timm demonstrated that he understood what was in the indictment better than Lewis did.
He pointed out that Assange was not being accused of conspiring with Chelsea Manning to break a password to get documents but to help her hide her identity, an obligation of all reporters working with anonymous sources.
He said the government made out anonymous drop boxes, pioneered by WikiLeaks, to be nefarious, when about 60 media organizations, such as The New York Times, The Guardian and The Wall Street Journal use such boxes, developed by his foundation, for sources to deposit material anonymously.
Lewis was a shrunken man. All his bluster from the previous day had melted. He seemed to take it out on Magistrate Vanessa Baraitser in an argument over the time limit she imposed on him–one hour, when she gave the defense only 30 minutes.
Lewis was reduced to trying to undermine Timm’s credibility as an expert witness because he had not included Kromberg’s declaration in his written testimony. “I did not make my judgement on a government press release but what is in the indictment,” Timm said.
The trial continues.
Defense Witness Badgered Over
Political Motivation of the Case
9:20 am EDT: In the morning session, defense witness, Prof. Paul Rogers, political scientist at Bradford University, established that Assange is motivated by a political viewpoint that places him as a political opponent of his accusers.
WikiLeaks revelations about the wars in Iraq and Afghanistan, especially releasing an increased body count of civilians, set him against the interests of the United States. WikiLeaks had exposed the “fiction of victory” in Iraq and Afghanistan. In Iraq, for “two years there was no evidence for the public that the war was going wrong. WikiLeaks significantly showed how badly the war had gone for the United States,” Rogers testified.
He stressed that Assange made clear he was not against the American people, but its governments.
The professor, who testified via video-link from Bradford in the English Midlands, said that at the center of Assange’s politics is his belief that there should be more concern for human rights, more transparency, more accountability and more justice.
Rogers said Assange, who was sitting in the back of the court, is coming from a libertarian, anti-war stance and that these views clash deeply with the Trump administration. Rogers testified that this administration was out of the norm of a typical U.S. or European government. Assange is “a political opponent who might experience the full wrath of government. No question,” Rogers testified.
“Assange and what he stands for represents some kind of threat to normal political endeavor,” Rogers said.
On cross examination, the prosecutor, James Lewis QC, hammered Rogers to try to get him to admit he has no basis to testify that the prosecution of Julian Assange is politically motivated.
Lewis tried to destroy the witness’ credibility as an expert by saying he did not include a statement by the U.S. prosecutor saying that the charges against Assange are motivated by criminal justice, and not politics.
Rogers says he has no doubt Department of Justice officials acted professionally in putting together an indictment, but questions officials at high levels of government who gave the orders to prosecute in the first place.
They have done this, Rogers testified, after eight years of failure by the Obama administration to prosecute because it would clash with the First Amendment. This brought about a round of interrogation similar to Tuesday as Lewis again tried to establish that the Assange probe was never dropped and that he was not prosecuted because he was in Ecuador’s embassy “and not available to stand trial.”
Rogers cited statements of intent to take down WikiLeaks by Jeff Sessions, Trump’s first attorney general, Mike Pompeo, as CIA director, and Attorney General William Barr as evidence of political motivation. He also pointed to the personal political animosity of Trump towards the press. On the whole Rogers stood his ground, unlike Tuesday’s defense witness, who wilted under Lewis’ withering forays.
On re-direct examination, Rogers says he believes that the changing political mood in the United States against the wars in Afghanistan and Iraq at the time of Barack Obama’s election and during his administration contributed to the Obama decision not to prosecute Assange.
This changing mood was influenced, Rogers testified, by WikiLeaks releases that confirmed the U.S. military privately knew both wars were going badly. Lewis picked up his theme from yesterday that the Obama era grand jury investigation never ended and that it is wrong to say a decision was made not to prosecute.
Court is in Session–Day Three
5:30 am EDT: Day Three of Julian Assange’s extradition hearing is just beginning at Old Bailey in London. Check back here often as Consortium News, with remote video access to the courtroom, will provide updates throughout the day and a video report on CN Live! within 30 minutes of adjournment. Court will be opened a half hour later every day to allow Assange’s lawyers to confer with their client before the session begins.
