Drawing by Nathaniel St. Clair
The fine circus that is British justice resumed at London's Central Criminal Court on September 7, with the continued extradition proceedings against Julian Assange. Judge Vanessa Baraitser was concerned that approximately 40 individuals had received remote video access they apparently should not have. "In error, the court sent out orders to others who had sought access. I remain concerned about my ability to maintain the integrity of the court if they are able to attend remotely."
Showing a continuing obsession with controlling her court as manorial property, Baraitser felt that having such individuals access the proceedings might lead to breaches (she did not specify which ones). "Once livestreaming takes place, the court cannot manage this breach even less when the person is outside the jurisdiction." Inadvertently, the judge had put her finger on the very heart of WikiLeaks and the terror it inspires in the establishment: an event or occurrence that is published, remotely; information, previously confined, escaping. "I want to make it clear that the public interest and allowing remote access is unlikely to meet the interests of justice tests." To wit, she needed new applications from the excluded observers. "For those who consider they still cannot travel to the UK to attend the hearing, then they need to apply again and I will consider it."
One of the organisations excluded by Baraitser's ruling was Amnesty International, a body that has sent fair trial monitors to observe the practices of regimes more authoritarian and less inclined to observe the rule of law. Marie Struthers stated it plainly, noting the initial rejection of the application for a physical spot last month, followed by the granting of six remote viewing slots, reduced to one, then, it transpired, none. "This is not normal." To have the organisation's "legal observer... find out this morning that he had not been granted even REMOTE access to the Assange proceedings is an outrage."
Rebecca Vincent, director of international campaigns of Reporters Without Borders suggested that allowing "so few trial monitors [and] journalists into today's hearing seemed more of a political decision rather than a logistical one." To such exclusions could also be added parliamentarians.
With assured opacity and a lack of transparency, the scene was set. What would Judge Baraitser come up with to restrict the scope of Assange's case against extradition to the US? One lay in controlling the presentation of witness statements. The defence suggested a full show, assisting witnesses in going through their statements in court. The public might be better informed of the issues.
Baraitser offered a novel reading: doing so would not assist the defence, the public or Assange "and would not be a fair." Another way of reading it would have been: no justifications and podiums for the cause. James Lewis QC of the prosecution thought that the statements were adequate enough. It followed that they would be made public. "In my view," concluded Baraitser on that point, "there is no benefit whatsoever to allowing the witnesses give evidence in chief." Thirty minutes for orientation was more than adequate.
Defence counsel Mark Summers QC focused on the staggered nature of the US indictment against Assange, beginning initially as a single charge, ballooning into an enlarged indictment stuffed by allegations of espionage, followed by a second superseding indictment. "It is a curiosity that the US had, in previous hearings, been content for the hearings to go ahead in February and May, presumably knowing that this was coming." It was not initially clear what had changed, but by August 21, the material put before the court constituted a "potential standalone basis for criminality". Irrespective of whether the US rejected the existing allegations linked to Chelsea Manning, "Assange can be extradited and potentially convicted for this conduct on its own and this is a resounding and new development in this case."
One feature of the prosecution attacked by Summers was the mentioning of Assange's alleged "co-conspirators" linked to hacking incidents. As Kevin Gosztola reminds us, they had been subject of legal prosecutions in the US and UK a decade ago, while Sigurdur "Siggi" Thordarson was mentioned in a filing by the prosecution last year. It followed that material from that case, which involved conviction in Iceland for fraud, theft and impersonation of Assange, should have been included in the previous indictment. The defence also brought up those rich remarks by the Icelandic Interior Minister at the time, who "believed the investigation [of Thordarson by the FBI] was in order to 'frame Assange'."
Other co-conspirators mentioned were Hector Xavier Monsegur ("Sabu"), Jake Davis ("Topiary") and Ryan Ackroyd ("Kalya"), all making legal appearances in the Southwark Crown Court for their alleged hacking spree with LuzSec. The defence contended that, as they were all prosecuted in the UK despite "competing US indictments being issued during the currency of the UK case", Assange should have been prosecuted in the UK alongside such conspirators at the time. "The forum bar is obviously engaged."
The prosecution case, in short, had become a quite different creature to the beast it originally was. The indictment now claimed, for instance, that Assange and WikiLeaks had assisted former security contractor Edward Snowden to evade arrest. The prosecution had also brought the focus back on alleged nefarious cyber activity on Assange's part, thereby discrediting the need to publish material exposing, for instance, US war crimes. Targeting the hacker distracts from the more sinister implication of targeting a publisher.
"It would be extraordinary for this court to be beginning an extradition hearing in relation to allegations like that within weeks of their announcement," submitted Summers, "without warning and even more extraordinary to do so in circumstances where the defendant is in custody."
The stunning lack of fairness was emphasised. It was "impossible" for Assange's team to "deal with the allegations being put to him and in relation to material for which you have been provided no explanation for their late arrival." Inadequate time had been given and inadequate notice, on dealing with these new "separate criminal allegations". With that in mind, Summers submitted that the court excise the new allegations.
Obstacles to adequate preparation have never bothered the judge in this case. With her usual rusted stubbornness, Judge Baraitser put the blame down to the defence, essentially approving the conduct of the US Department of Justice. Excision could only be granted in instances of a bar outlined in statute or a case of abuse of process. But not even the forum bar seemed to sway her.
Failing in that application, Summers moved to the issue of an adjournment to January. It was not an application without risk, given Assange's conditions in Belmarsh prison. "We have not been able to answer the allegations which have only been made in the last few weeks. This has been made worse because of the conditions we are having to work under." No earlier application had been made for the very simple reason that Assange had not seen the new request, hobbled by poor access to documentation provided by his defence team via traditional postal means. "We have not had an opportunity to meet and consult with him." He still had not received "the revised opening note" with accompanying documentation that the DOJ was developing more than a narrative, but the basis for "standalone criminality capable of sustaining a conviction if accepted in its own right."
Judge Baraister initially offered a nibble of tokenistic interest. She acknowledged that the defence team had not seen Assange for some six months, and wondered if they had spoken to him by phone. Yes, came the reply, but these were incoherent episodes, consisting of two short conversations. He had "to take in information from us on - any view - complex documents and to make him aware of the issues and to take a decision on them." A 10 minute adjournment followed. Baraitser's decision: the defence should have applied previously to do so but did not; the defence, in not doing so, should have acted as if the proceedings would continue.
Peering through the ruins of a process that is becoming more political with each session was the testimony of Mark Feldstein of the University of Maryland, authority on history and journalism. Feldstein's point in defence of WikiLeaks is outlined in his statement: drawing exacting definitions of what journalism is or otherwise within the US Constitution makes little sense. "Assange... is protected by the First Amendment whether he qualifies as a journalist or not."
The testimony proceeded to develop such ideas. Thousands upon thousands of leaks of classified information had informed "the public about government decision making but they also evidence government dishonesty". Journalists made Pulitzer Prize winning careers in using material from such leaks, an activity protected by the First Amendment as "the public had a right to be informed." Charging publishers and news outlets was simply not done; authorities preferred to charge the source or whistleblowers. While history evinces cases of "presidential enemies" being sought, the line had always been drawn. Till now.
Assange's Second Day at the Old Bailey: Torture, Drone Strikes and Journalism
The highlights of the second day of Julian Assange's extradition proceedings at the Central Criminal Court in London yielded an interesting bounty. The first was the broader public purpose behind the WikiLeaks disclosures, their utility in legal proceedings, and their importance in disclosing instances of US extrajudicial killings, torture and rendition. The second involved a discussion about the practice of journalism and the politicised nature of the prosecution against Assange.
Human rights attorney Clive Stafford Smith and founder of Reprieve, an organisation specialising in investigating instances of US detention, rendition and disappearances, was called by Mark Summers QC for the defence. The disclosures by WikiLeaks, he claimed, had been important in the issue of challenging the legitimacy of US drone strikes in Pakistan. Successful litigation conducted in that country found such strikes "criminal offences and that criminal proceedings should be initiated against senior US officials involved in such strikes." A high court in Pakistan had found that they constituted a "blatant violation of basic human rights". Stafford Smith noted how the drone assassination program "leaked over to narcotics... they were targeting people for death for their involvement in drug trade because it was seen as funding terrorism. I could go on..."
The statement submitted to the court by Stafford Smith also emphasised how the WikiLeaks material disclosed on the treatment of detainees in Guantánamo were "the top of a very important discourse that would seem to be important in the public interest, about the abysmal intelligence used to detain prisoners and make important public policy decisions." Stafford Smith's statement also volunteers a twist: that the material published by WikiLeaks on the subject seemed to be "the best face that the US government could put on the crimes it had committed against the Guantánamo prisoners."
In his testimony, Stafford Smith affirmed the mixed returns of those disclosures. The leaks initially seemed to portray "the very worst that the US authorities confect about the prisoners I have represented". He was "frustrated" on first reading the WikiLeaks documents, thinking "they would leak what I get to see". The mosaic, however, was pieced together to disprove the case against his client.
When it came to discussing the issue of enhanced interrogation techniques used by US personnel, Stafford Smith suggested the similarities shown in method to those used in the Spanish Inquisition. "As you go through the documentation WikiLeaks leaked, there are all sorts of things identified, including where people are taken and renditioned... and that was the case in Binyam's case." In being part of an effort to hold US officials to account for war crimes, Stafford Smith had a teasing pointer on the implications for WikiLeaks. "Anyone can be sanctioned who is seeking to assist in an investigation which could lead to ICC [International Criminal Court] investigation, which is what WikiLeaks does". It was a pointed reminder that Assange's defence team could well fall within the remit of US sanctions currently directed at the ICC by the Trump administration.
In his overall assessment, Stafford Smith suggested that, "The power and value of WikiLeaks disclosures about Iraq and Afghanistan can scarcely be understated, and are of 'key importance'to 'evidence war crimes and human rights violations by the US and its allies."
All of this left James Lewis QC of the prosecution more than a touch cranky. Stafford Smith had referred to cables that did not form the subject of charges against Assange. They were, claimed Lewis, irrelevant; the US case was only concerned with those documents that had revealed the names of informants. The defence claim is precisely the opposite: that such documents as referred to by Stafford Smith would also be covered by the charges of Assange "communicating" and "obtaining" classified material. The whole show could be the subject of a prosecution on US soil.
Cheekily, Stafford Smith suggested that Lewis was "wrong about the way in which cases are prosecuted" in the US. Merely because such cables were not outlined in the indictment did not suggest prosecutors would not use them in trial. "You cannot tell the court how this case will be prosecuted. You're making things up."
Such legal bickering proved too much for Assange. "This is nonsense," he claimed from the dock. "Apparently my role is to sit here and legitimate what is illegitimate by proxy." Cue Judge Vanessa Baraitser, who took witheringly to the intervention. "I understand of course you will hear things, most likely many things you would not like, and you would like to intervene but it is not your role." While Assange remaining in court was "something the court would wish for", it "could proceed without you."
A feature that has stood out in the entire endeavour against Assange is the stench of politics. Lewis disagrees; the investigation into Assange and WikiLeaks has been an organic, methodical one, building since 2010 and flowering in 2020. The testimony of journalism academic Mark Feldstein suggested otherwise. He referred to a Washington Post piece from November 2013 highlighting the decision by the Obama administration to not proceed. Officials from the Justice Department did stress at the time that no "formal decision" had been made, as the grand jury investigating WikiLeaks remained impanelled. But there was "little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents." The implications of prosecuting Assange were evidently clear: to do so would lead to the obvious conclusion that US news organisations and journalists would also face the prosecutor's brief.
This cautionary attitude was not to be found at the Federal Bureau of Investigation. In 2017, they were seeking a "head on a pike". By then, President Donald Trump had moved into an offensive mode against journalists; the then director of the Central Intelligence Agency Mike Pompeo was resolute in categorising WikiLeaks as a hostile non-state intelligence agency, while Jeff Sessions as Attorney-General was all zeal in asking prosecutors to take a closer look at the Assange case.
But the worm had not entirely turned. Federal attorneys such as James Trump, a figure in the prosecution of former CIA officer Jeffrey Sterling, who had leaked classified material to journalist James Risen, and Daniel Grooms, demurred. Both were concerned that undertaking such a prosecution would fall foul of the First Amendment, and be plagued by legal and factual challenges.
Feldstein pushed home the points in his testimony in deeming the efforts against Assange political in nature. The scope of the charges had no precedent; the Obama administration had shown reservations in embarking on what would be a fraught process; the wording of the superseding indictment suggested political leanings; and Trump had shown a deep antipathy for the press. Previous efforts to prosecute journalists, he concluded, were "obviously highly political".
Undeterred, the prosecution resorted to a conventional tactic: accusing the witness of speculating. The reality Feldstein needed to consider was whether names had been revealed in the publication of such documents. Doing so would result in harm. If this had been the case, suggested Feldstein, the prosecution might have simply used the Intelligence Identities Protection Act of 1982, a narrower statute for the purpose. Instead, terms such as "conspiracy" and "recruiting" - the sort normally coupled with "terrorist", had been deployed. Besides, the issue of "harm" tended to be a bread and butter response by governments that was impossible to prove and used to conceal improprieties.
As a case in point, that most pertinent of precedents, the Pentagon Papers, was cited. As Feldstein noted, the arguments made by prosecutors at the time about the consequences of their disclosure - possible prolongation of the Vietnam War, identification of CIA officials, exposure of war plans - were also caught up in the concept of "immediate and irreparable" harm. It subsequently transpired that one prosecutor thought no harm would arise at all. What mattered was the effort by the Nixon administration to question the loyalty of media outlets.
Standard journalistic method, Feldstein reiterated, directs the source, asking what is needed and seeking more information as relevant. The journalist effectively works with the source. Criminalising that as a case of "conspiring" would make the "most of what investigative journalists do... criminal."
On the point of the journalist's craft, the prosecution continued to push the precarious argument that the publishing activities of the New York Times were different from that of WikiLeaks. Journalists did not steal or unlawfully obtain information. Here, Feldstein conceded, things could be murky. "We journalists are not passive stenographers. To suggest receiving anonymously in the mail is the only way is wrong." As to whether he had engaged in publishing such information, Feldstein was unequivocal: not so much "classified documents" but certainly "soliciting and publishing secret information."
A balanced overview of the day's proceedings would have found Lewis struggling with the prosecution narrative focusing on alleged harm caused by Assange, the defence resolute in returning to the big picture element of the disclosures. This was too much to expect from the pedestrian reporting of a Fourth Estate more obsessed with Assange the man. From The Guardian to the Daily Beast, only one thing mattered: the warning by Judge Baraitser that Assange should keep silent and avoid any outbursts. As Kevin Gosztola observed, "US prosecutors win the news cycle on Day 2."