Assange Hearing Day 10
The gloves had been off on Tuesday as the US Authorities explicitly argued that every person journalists are inclined to prosecution below the Espionage Act (1917) for publishing labeled recordsdata, citing the Rosen case. Counsel for the US authorities furthermore argued that the famed Pentagon Papers supreme court judgement on the Original York Events simplest referred to pre-newsletter injunction and namely didn’t preclude prosecution below the Espionage Act. The US Authorities even surmised in court that such an Espionage Act prosecution of the Original York Events might possibly well also simply had been successful.
It is laborious for me to lift to a British target market what an assault this represents by the Trump administration on Americans’ self-image of their have political culture. The First Modification is accepted all the scheme in which via the political divide and the Original York Events judgement is viewed as a pillar of freedom. So worthy so as that Hollywood’s main superstars are aloof making blockbusters about it, all the scheme in which via which the heroes are the journalists in location of the staunch whistleblower, Dan Ellsberg (whom I’m proud to know).
The US authorities is now asserting, fully explicitly, in court, those journalists might possibly well also and might possibly well also simply dangle gone to detention center and that is how we can act in future. The Washington Put up, the Original York Events, and the full “enormous liberal media” of the USA have to now not in court to listen to it and discontinue now not anecdote it, on account of their active complicity in the “othering” of Julian Assange as something sub-human whose fate will also be ignored. Are they truthfully so slow as to now not fancy that they’re subsequent?
The prosecution’s line represented a thorough departure from their earlier potential which turn out to be to claim that Julian Assange is now not a journalist and to come to a decision on a peer at and distinguish between his behaviour and that of newspapers. In the major three days of evidence, factual experts had acknowledged that this gloss on the prosecution didn’t face as much as investigation of the staunch costs in the indictment. Experts in journalism furthermore testified that Assange’s relationship with Manning turn out to be now not materially assorted from cultivation and encouragement by assorted journalists of pleasant sources to leak.
By in style consent, those first evidence days had gone badly for the prosecution. There turn out to be then a timeout for (ahem) suspected Covid among the many prosecution personnel. The potential has now changed and on Tuesday a radically more aggressive potential turn out to be adopted by the prosecution asserting the finest kind to prosecute all journalists and all media who publish labeled recordsdata below the Espionage Act (1917).
The reason of the sooner potential turn out to be evidently to chop media enhance for Assange by differentiating him from assorted journalists. It had turn out to be obvious such an potential ran a staunch threat of failure, if it might possibly well probably also very correctly be proved that Assange is a journalist, which line turn out to be going correctly for the defence. So now we dangle now “any journalist will also be prosecuted for publishing labeled recordsdata” as the US authorities line. I strongly suspect that they dangle got got made up our minds they form now not want to mitigate against media reaction, as the media is paying no attention to this hearing anyway.
I shall now proceed my exposition of the questioning of Eric Lewis. I shall now not scrape out as worthy of this in fleshy detail as dialogue as I did the day earlier than these days, however will discontinue so at key positive components in the summary.
James Lewis QC Returning to the European Courtroom of Human Rights judgement in the case of Babar Ahmad, you exclaim that their finding that solitary confinement is permissible didn’t opt into consideration more newest study corresponding to the 2020 Danish survey by Wildeman and Andersen. Attain you sing this survey would dangle reversed the ECHR resolution?
Eric Lewis That is now not doable to assert. I am hoping that if the ECHR had sooner than it the enormous body of evidence on solitary confinement obtainable these days, the judgement might possibly well also simply had been assorted.
James Lewis QC What are the 5 barriers to their survey which Wildemann and Andersen mention?
Eric Lewis I don’t dangle it in entrance of me.
James Lewis QC Why did you now not mention the 5 barriers for your anecdote? They exclaim that their methodology is precisely observational and can now not be aged to say scrape off and live.
[The report in effect shows a much higher suicide rate post-incarceration among those who had been subjected to solitary confinement, from a very large sample of ex-prisoners].
Eric Lewis I might possibly well even dangle written a full bunch of pages on newest social sciences traits on solitary confinement. Right here’s factual one such anecdote.
James Lewis QC You had been factual fishing about for something, omitting particulars which counter your conception.
Eric Lewis There is a large amount of recordsdata, along with from the US Bureau of Prisons. You factual picked out one caveat of 1 anecdote.
James Lewis QC Please retain your answers concise. The bother has changed attributable to the Cunningham Mitigation. Attain you know what that is?
Eric Lewis Yes
James Lewis QC Why did you now not mention it for your anecdote?
Eric Lewis Because it is now not connected. A collection of recommendations had been scrape out, which dangle now not been performed in notify.
James Lewis QC Gordon Kromberg has produced the Cunningham Mitigation for us. In November 2016, in settlement of an 8th Modification claim, it turn out to be admitted that conditions for mental health medication in the Florence Colorado ADX are unsatisfactory and an excessive amount of measures had been agreed. Attain you compromise with Mr Kromberg that the Cunnigham Mitigation has improved issues.?
Eric Lewis In some ideas it has improved issues, in assorted ideas things dangle gotten worse.
James Lewis QC then proceeded to exclaim based totally on Eric Lewis’s written observation on Covid, that Gordon Kromberg affirmed that as of two September there turn out to be no covid in the Alexandra Detention Centre the set apart Assange would be saved pre-trial. Eric Lewis countered that ranges of Covid in federal prisons in the USA are 18%.
James Lewis QC You acknowledged in the clicking that the most sentence is 340 years when now you exclaim it is simplest 175 years. You miscalculated didn’t you? You took 20 years per count as the contaminated when it will be 10.
Eric Lewis It turn out to be a mistake in an interview
James Lewis QC You don’t indubitably mediate in 175 years most sentence, discontinue you? It’s factual a soundbite.
Eric Lewis began to answer to and James Lewis QC cut him off. Edward Fitzgerald rose and objected that the find might possibly well dangle to be allowed to answer to. Baraitser agreed.
Eric Lewis The US authorities has called this one in every of the finest cases in historical past. Espionage convictions usually appeal to long sentences. Pompeo has labeled Wikileaks as a antagonistic intelligence agency. The authorities requested for 60 years for Chelsea Manning. I believed referring to the costs in the case of the pleasant sentencing guidelines.
James Lewis QC. Gordon Kromberg has testified that simplest a minute share of all federal defendants appeal to the most sentence. The sentencing guidelines stipulate no unwarranted disparity with identical convictions. Jeffrey Suitable turn out to be a CIA agent convicted of marketing and marketing secrets on Iran to Russia. He had faced a you might possibly well possibly mediate most sentence of 130 years, however had got simplest 42 months.
Eric Lewis The prosecution requested for a for lots longer sentence. Genuinely that turn out to be a extraordinarily bizarre case now not similar…
James Lewis QC Why did you now not give a reasonable estimate and now not a soundbite?
[In fact James Lewis’ categorisation of the Jeffrey Sterling case is entirely tendentious and it is hardly a sensible comparator. Sterling was a rare black CIA officer, involved in a long and bitter dispute with his employer over racial discrimination, convicted on purely circumstantial evidence of giving information to an American journalist about a completed CIA operation to leak false Iranian plans to Russia. Sterling was not accused of leaking to Russia. The entire case was very dubious.]
Eric Lewis I followed sentencing guidelines. I gave what I calculated as the statutory most, 175 years, and an estimate from my expertise of the very lightest sentence he might possibly well also request, 20 years. Suitable got correctly beneath the guidelines and the ponder explained why.
James Lewis QC now ran via a pair more cases, and acknowledged that the longest sentence ever given for illegal disclosure to the media turn out to be 63 months – presumably now not counting Chelsea Manning. Eric Lewis spoke back that the order costs laid in the Assange indictment yelp to disclosure to a foreign energy, to now not the media, and of recordsdata essential to the enemy. Sentences for the counts Assange turn out to be charged on had been worthy better.
James Lewis QC acknowledged that sentencing turn out to be by an self sufficient federal ponder who had existence tenure, to free them from political impact. There turn out to be short to and forth referring to the circumstances all the scheme in which via which a federal ponder might possibly well also simply be impeached. The ponder assigned the Assange case turn out to be Claude Hilton, who had been on the bench since 1985. James Lewis QC challenged Eric Lewis as as to whether he idea Claude Hilton turn out to be shapely, and Eric Lewis spoke back that Hilton had a recognition as a heavy sentencer.
James Lewis QC then requested Eric Lewis whether he current that the US Department of Justice had sentencing recommendations in location which namely guarded against unnecessarily long prison sentences. Eric Lewis spoke back that the USA had the essential percentage of its population in detention center of any country in the arena.
Counsel for the US Authorities James Lewis QC then acknowledged he would flip to the First Modification effort.
James Lewis QC You imply that the First Modification precludes this prosecution
Eric Lewis Yes, There has by no system been a prosecution of a publisher below the Espionage Act for newsletter of labeled recordsdata.
James Lewis QC Are you conversant in the Rosen Case of 2006. This turn out to be precisely the identical tag as Assange now faces, 793 (g) of the Espionage Act, conspiracy to transmit labeled recordsdata to those now not entitled to receive it. Possess you ever learn the case?
Eric Lewis No longer in a protracted while, because in the raze it turn out to be now not proceeded with.
[James Lewis read through lengthy extracts of the Rosen judgement, which I do not have in front of me and was unable to get down verbatim. What follows is therefore gist not transcript].
James Lewis QC In the Rosen case, it is made ghastly that the receiver, now not factual the discloser, is inclined to prosecution below the Espionage Act. The ponder accepted that although the Espionage Act of 1917 had been criticised for vagueness, Congress had by no system felt the want to clarify it. It furthermore accepted that worthy of the alleged vagueness had been resolved in diverse judicial interpretations. It accepted the fourth circuit had rejected a major amendment defence in the case of Morison.
Eric Lewis Morison is assorted. He turn out to be a leaker now not a publisher.
James Lewis QC The Rosen judgement furthermore goes on to exclaim that vagueness would now not come into play the set apart there might possibly be obvious evidence of intent.
Eric Lewis At the same time as you occur to come to a decision on into consideration the 100 year feeble Espionage Act and that there has by no system been a prosecution of a publisher, then intent…
James Lewis QC [interrupting] I are looking out to cross on from intent to the First Modification. There are supreme court judgements that form it clear that at cases the authorities’s hobby in nationwide security have to override the First Modification
Eric Lewis In cases of drawing shut effort and bearing on to instant and notify grief to the interests of the US. It is a extraordinarily high bar.
James Lewis QC The Rosen judgement furthermore notes that the Original York Events Pentagon Papers case turn out to be about injunction now not prosecution. “The essential kind to free speech is now not absolute”.
Eric Lewis Unnecessary to sing. The arguments are correctly rehearsed. Motion of troop ships in time of battle, for instance; cases of grave and instant effort. In the Pentagon Papers Ellsberg turn out to be, like Assange, accused of inserting named US agents at threat. The bar for overriding the First Modification is determined very high.
James Lewis QC [Reading out from a judgement which I think is still the Rosen judgement but it was referred to only by bundle page] He furthermore notes that serial, continuing disclosure of secrets which damage the nationwide hobby can now not be justified. It therefore follows that journalists will also be prosecuted. Is that what he says, Mr Lewis?
Eric Lewis Yes, however he is wrong.
James Lewis QC Attain you settle for that the Pentagon Papers judgement is the most connected one?
Eric Lewis Yes, however there are others.
James Lewis QC A shut studying of the Pentagon Papers judgement presentations that the Original York Events might possibly well also want been efficiently prosecuted. Three of the Supreme Courtroom judges namely acknowledged that an Espionage Act prosecution might possibly well also very correctly be pursued for newsletter.
Eric Lewis They recognised the chance of a prosecution. They didn’t sing that it would prevail.
James Lewis QC So your diagnosis that there can now not be a prosecution of a publisher on First Modification grounds is wrong
Eric Lewis gave a lengthy technique to this, however the sound on the videolink had been deteriorating and had in the final public gallery turn out to be factual a series of digital sounds. The lawyers carried on, so per chance the might possibly well also hear, however I do know Julian might possibly well also now not because I saw him attempting to talk this to his lawyers via the bulletproof glass conceal in entrance of him. He had effort in doing this as he turn out to be in the again of them, and they also had their backs to him and eyes fastened on the video conceal.
James Lewis QC I exclaim of affairs you to name one single judgement that states a publisher might possibly well also simply by no system be prosecuted for disclosing labeled recordsdata?
Eric Lewis gave one more long solution that seem to reel off a protracted list of cases and existing their significance, however all all over again I might possibly well also hear simplest just a few disjointed words. The sound in the raze improved a chunk.
Eric Lewis There turn out to be an unbroken line of the notify of non-prosecution of publishers for publishing nationwide defence recordsdata. Day by day there are defence, foreign affairs and nationwide security leaks to the clicking. The click are by no system prosecuted for publishing them.
James Lewis QC The United States Supreme Courtroom has by no system held that a journalist can now not be prosecuted for publishing nationwide defence recordsdata.
Eric Lewis The Supreme Courtroom has by no system been faced with that particular person quiz. Because a case has by no system been introduced. But there are closely connected cases which say the answer.
James Lewis QC Attain you settle for that a authorities insider who leaks labeled recordsdata might possibly well also simply be prosecuted?
Eric Lewis Yes
James Lewis QC Attain you settle for that a journalist might possibly well also simply now not reduction such an particular person to atomize the regulation?
Eric Lewis No. It is now not novel journalistic notify to cultivate an pleasant source and again them to leak. Seymour Hersh would might possibly well dangle to be prosecuted below such an belief.
James Lewis QC Attain you settle for that a journalist might possibly well also simply now not dangle unauthorised derive entry to to the White House?
Eric Lewis Yes
James Lewis then began to quote a judgement on White House derive entry to, then looked to fall it. He then acknowledged he turn out to be turning to the quiz of whether this turn out to be a political extradition.
James Lewis QC Attain you might possibly well possibly even dangle any qualifications in social science?
Eric Lewis I indubitably dangle a stage in Public Global Affairs from the Woodrow Wilson College of Global Relatives.
James Lewis QC Possess you ever printed any peer reviewed publications?
Eric Lewis No
James Lewis QC You opined in a single more extradition case, that of Dempsey, that it turn out to be based totally upon political conception. The Excessive Courtroom of England described your evidence as “pure conjecture”.
Eric Lewis Yes, that turn out to be their sight. Dempsey turn out to be en route to Syria and approached at an airport by FBI agents. He explained to them that he turn out to be going to Syria to work with an anti-Assad community. Nothing turn out to be performed. But by 2016 policy against Assad had changed and Dempsey turn out to be charged. My evidence turn out to be just a few change of policy, now not political opinions.
James Lewis QC Turning to the knowledgeable evidence of Prof Feldstein closing week, discontinue you compromise with his observation that while the Obama administration didn’t opt the resolution to prosecute, he didn’t opt the resolution to now not prosecute. Attain you compromise?
Eric Lewis No. I mediate that relies on a first-rate misunderstanding of how the Justice Department works.
James Lewis QC Attain you might possibly well possibly even dangle first hand recordsdata or sources to your conception?
Eric Lewis No,
James Lewis QC So your recordsdata is simplest from newspapers
Eric Lewis And TV interviews and statements,
James Lewis QC Statements like those from Matthew Miller who had left the Justice Department two years sooner than he spoke to the Washington Put up?
Eric Lewis Yes, however he remained shut to Lawyer Overall Eric Holden
James Lewis QC Attain you compromise with Gordon Kromberg that prosecuting selections are taken consistent with federal guidelines that preclude political prosecution?
Eric Lewis No. No longer below William Barr. The system is now prime down political prosecution.
James Lewis QC So you claim the guidelines have to now not followed?
Eric Lewis I discontinue. So discontinue the 2,600 outmoded federal prosecutors who called for Barr’s resignation and the 1,000 outmoded prosecutors who protested the Roger Stone commutation. Or Think Gleeson in his reports on political prosecution selections.
James Lewis QC Attain you accuse Gordon Kromberg of contaminated faith?
Eric Lewis I don’t know him. But I discontinue know there might possibly be disclosure of heavy political stress in this case.
There followed some discussion on Trump’s altering relationship with Wikileaks over time, and furthermore of the Labeled Recordsdata Security Act and whether it hampers the defence in disclosure and in taking instruction from the accused. This turn out to be to be discussed in bigger detail with the following find.
Edward Fitzgerald then led the find in re-examination. He requested Eric Lewis to mention the television interviews he had referred to in noting the political change from Obama to Trump. Eric Lewis cited Sarah Sanders asserting “we did something” and contrasting this with Obama’s exclaim of no job, and Eric Holder declaring they’d made up our minds to now not prosecute Assange below the Espionage Act as he turn out to be now not acting for a foreign energy.
Edward Fitzgerald then requested referring to the stress set apart on prosecutors in the Eastern District of Virginia to lift the say prosecution. Eric Lewis referred to the article by Adam Goldman in the Original York Events to this live. Ten days after this article the Justice Department acknowledged is turn out to be a precedence to prosecute Assange.
Lewis explained that William Barr had made order that prosecution turn out to be discipline to political direction. He subscribed to the Unitary Executive Theory and held that every person prosecution selections had been by or on behalf of the President. Barr had scrape this out in a memo that acknowledged straight away that prosecutors had been “merely the hand” of the Presidency. This turn out to be now not idea. This turn out to be how the Justice Department turn out to be now escape. Many federal prosecutors had resigned. Many had refused to touch the Assange prosecution. “Mr Kromberg, as is his appropriate kind, didn’t.”
Edward Fitzgerald then accepted that James Lewis had queried Eric Lewis’s qualifications to touch upon prison conditions. But for the prosecution, US Assistant Lawyer Gordon Kromberg had submitted voluminous feedback on prison conditions. Did Mr Kromberg dangle academic qualifications in penology as required by James Lewis? Eric Lewis spoke back that he believed now not, and surely he had indubitably he himself had vastly more life like expertise of prison conditions than Mr Kromberg. Mr Kromberg’s exposition of pleasant policy turn out to be with out doubt appropriate, however it bore no relation to the staunch conditions in jails.
On solitary confinement, Edward Fitzgerald outlined the UN’s Mandela recommendations, below which 22 hours or more in a cell a day and no critical human contact pronounce solitary confinement. Lewis spoke back that the SAM regime would surely breach the Mandela recommendations.
The next find turn out to be Mr Thomas Durkin. He’s an approved legit practising for 47 years, licensed to look in the Supreme Courtroom. From 1973-8 he turn out to be a US Assistant Lawyer and since then has been in personal notify. He teaches regulation at Loyola and has got a lifetime fulfillment award from the Illinois Association of Criminal Lawyers. He furthermore looked by videolink.
Edward Fitzgerald requested Mr Durkin referring to the particular problems of cases working with labeled supplies. Durkin acknowledged that the finest effort is you might possibly well possibly now not discuss labeled disclosure discipline cloth with your client. That it is probably going you’ll simplest peer at the topic cloth on a particular pc in a uncover scrape – a SCIP – and want to put together your discipline cloth there. Mr Assange will now not know what his lawyers dangle realized, and nor will they be ready to demand him what the topic cloth relates to or signifies. Right here’s an incredibly hard hardship in taking instructions and making prepared a defence.
Edward Fitzgerald requested Mr Durkin if there might possibly be a staunch likelihood that Julian Assange will receive an efficient leisure of existence detention center sentence. Durkin spoke back that this turn out to be a extraordinarily likely chance. Looking via the counts and the enhancements that might possibly well also notice, he would rate the offences at 38, 40 or 43 positive components on the sentencing scale. That would set apart the vary at 235 months to existence, and there had been a pair of counts that might possibly well also very correctly be sentenced consecutively. Durkin acknowledged that consistent with his intensive expertise of nationwide security trials, he would request a sentence of 30 to 40 years. The authorities field turn out to be that Assange turn out to be more to blame than Manning. They’d requested for 60 years for Chelsea Manning.
Edward Fitzgerald then requested referring to the live of the plea bargaining system. Thomas Durkin spoke back that an early guilty plea reduced the sentencing rating by three positive components. That might possibly well also form loads of years distinction in sentence. But scheme more crucial turn out to be the freedom of the prosecution to chop the counts charged in alternate for a guilty plea. That might possibly well also form a huge distinction – potentially from 100 years plus to ten years, for instance. The system vastly reduced freedom of different and turn out to be a huge disincentive to stand trial. People factual might possibly well also now not opt the threat. A enormous majority of Durkin’s customers now took a plea deal.
Mr Durkin agreed with a proposal from Edward Fitzgerald that a situation of a plea deal for Julian Assange turn out to be likely to be that he gave up the names of Wikileaks’ sources.
Edward Fitzgerald requested Mr Durkin whether there had been a political resolution by the Trump administration to prosecute Assange. Durkin acknowledged there had been no novel prison justice concerns that had caused the change in potential. This turn out to be probably a political resolution.
Edward Fitzgerald requested Durkin about Gordon Kromberg’s assertion that a Salubrious Jury turn out to be a extremely efficient bulwark against a political prosecution. Durkin spoke back this turn out to be simply spurious. A huge jury almost by no system refused to authorise a prosecution. In the full of the USA, there turn out to be on the full about one refusal every four or 5 years.
James Lewis then began contaminated-examination. He requested if Durkin turn out to be asserting that Assange would now not receive a honest appropriate trial in the US, or factual that it turn out to be hard? Durkin spoke back that Julian Assange would now not derive a honest appropriate trial in the USA.
Lewis urged that the requirement to peer labeled discipline cloth in a SCIP turn out to be merely an pains. Durkin acknowledged it turn out to be scheme more than that. That it is probably going you’ll possibly also now not discuss discipline cloth with your client, which materially minute your belief of it. James Lewis countered that US Assistant Lawyer Kromberg’s affidavit acknowledged that Assange would be ready to peer some labeled discipline cloth himself. A labeled facility would be obtainable for him to meet his attorneys. Durkin acknowledged he didn’t settle for this description. He had by no system viewed anything else like this occur.
Lewis then acknowledged Durkin’s observation turn out to be that there’ll be an unparalleled volume of labeled discipline cloth disclosed in this prosecution. But he might possibly well also now not know that. He had no belief what would be disclosed or what the defence would be, if any. Durkin spoke back that worthy might possibly well also very correctly be understood from the intensive indcitment and from what took location in the Chelsea Manning case. Lewis repeated Durkin didn’t know what would occur. Assange might possibly well also plead guilty.
Lewis urged the plea cut worth system turn out to be in essence the identical in England, the set apart defendants might possibly well also derive one third off sentence for a guilty plea. Durkin acknowledged plea bargaining in the US went a ways past that. The authorities might possibly well also set apart a large supply on the table by the utilize of reductions of costs and counts.
Lewis then went to the quiz of a change of policy between the Obama and Trump administrations. He established that Durkin relied on media reports for his sight on this. Durkin pointed out that the Washington Put up anecdote of 25 November 2013 that the Obama administration would now not prosecute, had quoted a pair of outmoded and then newest Justice Department staff and crucially no denial or counter briefing had ever been impending. It had by no system been contradicted.
That turn out to be the discontinue of Tuesday’s hearing. In conclusion I want to appropriate something I printed the day earlier than these days, that there had been simplest three journalists in the video gallery to veil the trial. James Doleman led me to 1 more hidden nest of them and there are about ten in complete. The principle titles are inexcusably unrepresented, however press agencies are, even though their feed is being little aged.
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