Consortium News is virtually “inside” the courtroom at Old Bailey, viewing the proceedings by video-link and filed this report on Day Eight of Julian Assange’s resumed extradition hearing.
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Espionage Act Put in the Dock
By Joe Lauria
Special to Consortium News
10:18 am EDT: In afternoon testimony, Carey Shenkman, a lawyer and expert on the history of the Espionage Act, laid out what defense attorney Mark Summers called the “incomprehensible and confusing” Espionage Act. Shenkman spoke of the repressive political conditions in the United States when the Espionage Act was adopted in 1917, with President Woodrow Wilson’s administration suppressing strong opposition to U.S. entry into the First World War.
Many Americans back then still took to heart George Washington’s admonition in his farewell address not to become entangled in European affairs–and conflicts. “Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice?,” Washington wrote.
Wilson, an admirer of the Klu Klux Klan, also admired putting people in prison for speech. He tried to get censorship into the Espionage Act but was defeated on that by just one vote in the Senate. In his signing statement on the Act, he said: ““Authority to exercise censorship over the press … is absolutely necessary to the public safety.”
Instead he got a Sedition Act passed that made it a crime to be disloyal to the flag among other symbols of the state. Numerous journalists were prosecuted, not for unauthorized possession and dissemination of defense information, but for urging readers to resist the draft.
Shenkman briefly took the court through various efforts by subsequent administrations to try to indict journalists for publishing classified material. Franklin Roosevelt tried to get The Chicago Tribune prosecuted for information it published about the Battle of Midway; Richard Nixon empaneled a grand jury in Boston to prosecute two New York Times reporters for publishing the Pentagon Papers; Nixon also went after Beacon Press f0r publishing the Senator Mike Gravel edition of the Papers.
Gravel himself was worried Nixon would prosecute him, for while he had immunity to disclose the classified Papers during a legislative act he was criminally liable for publishing them as a book. Nixon thought better of indicting a sitting senator, given the other problems he was facing.
All these and other attempts failed to bring back an indictment because of the inherent conflict the Espionage Act has with the First Amendment–until Julian Assange. Shenkman showed how such attempts at prosecutions always involved the U.S. president and were inherently political–a key point for the defense.
On cross examination, prosecutor Clair Dobbin tried to undermine Shenkman’s impartiality, portraying him as a member of “Mr. Assange’s legal team” when he worked for the late Michael Ratner of the Center for Constitutional Rights when Ratner was helping Assange with a UN panel that decided he was being arbitrarily detained in the Ecuador embassy.
She picked through articles Shenkman had written inquiring why he had said in one of them that Assange would “almost certainly be extradited to the United States.” Shenkman faltered at this point, saying many prominent commentators were saying that at the time.
Not being under the pressure of a prosecutor, it comes to mind that the British government would not allow Assange to leave the embassy for medical treatment without being arrested; that it pressured Sweden to continue investigating Assange, he’s been denied bail and kept in a glass cage in court, and more broadly that Britain is a Five Eyes partner of the U.S. that is usually in lockstep with the United States on so-called national security issues. Those are reasons to conclude that he will almost “certainly be extradited.”
Dobbin then tried to get Shenkman to give yes or no answers to a series of questions regarding whether government employees who steal government documents have First Amendment protections if they leak them to the press.
The obvious answer would be no, but Shenkman responded with “what do you mean by steal?,” and then cited the ruling this month in the 9th Circuit in California that the National Security Agency programs revealed by whistleblower Edward Snowden were illegal. The court credited Snowden for exposing them.
Sparring with Dobbin, at one point Shenkman said her line of questioning had nothing to do with his testimony on the Espionage Act and was “wasting my time and the court’s time.” He also lectured the prosecutor on using inexact legal terms when she referred to “hacking,” when the Computer Fraud and Abuse Act referred to it as “computer intrusion.”
A frustrated Dobbin then appealed to Judge Vanessa Baraitser for more time, but the judge snapped back: “I won’t hear that from you. You’ve taken a very long time to develop your line of questioning and the witness has done his best to try to answer your questions.” It was the harshest Baraitser has been to the prosecution since this hearing began.
Shenkman will be back on the stand on Friday afternoon, as the trial continues.
10:18 am EDT: Shenkman has begun his testimony running down a history of the Espionage Act. He is under cross examination now but he did not receive a “bundle” of document sent by the court to him at 3 am EDT, so the court is on pause as they email it to him again.
9:24 am EDT: Carey Shenkman, a lawyer and expert on the history of the Espionage Act, has been sworn in for the defense. But attempts to correct his audio feed have delayed the start of his testimony.
US Wants to Extradite Assange for ‘Cavalier
Attitude’ on Something Which is Not a Crime
6:35 am EDT: Prof. John Sloboda, co-founder of Iraq Body Count, testified for the defense that Julian Assange’s attitude towards redacting names of informants in the Iraq War Logs was “stringent.” He said under oath, “That was the aim of Mr. Assange and WikiLeaks.”
Despite pressure from WikiLeaks’ media partners, Assange delayed publication beyond an agreed date because redactions had not yet been completed, said Sloboda, who approached Assange in the summer of 2010 to work with him to gain greater detail about civilian deaths in Iraq.
The documents “were over redacted for caution,” Sloboda said. “Some things that didn’t need to be were redacted,” he said, adding, “The priority was to get it out over-redacted.”
When defense attorney Florence Iveson asked Sloboda about criticism of Assange that he had put individual informants at risk, the professor responded: “I can attest to this court that the Iraq War logs in October 2010 were published in a wholly appropriate, highly redacted form.”
On cross examination, prosecutor Joel Smith tried to undermine Sloboda’s qualifications in handling classified documents and managing informants, reducing the professor to being merely a psychology academic with a specialty in psychology and music.
“Have you any experience of handling a cooperative source in an oppressive regime?” the prosecutor asked.
“No,” responded Sloboda.
Smith then established that Sloboda had not been vetted by anyone to handle classified information.
Smith stated that the Afghan war logs, published before the Iraq files, which Sloboda worked on, had had names of informants and that WikiLeaks admitted a “steep learning curve” was needed in handling the Iraq documents.
Smith said that despite the software developed to handle the redactions, which removed all names not found in an English dictionary, the names of some informants indeed appeared in the Iraq war logs.
Sloboda said he was not aware of this.
The prosecutor then asked, “How were those names published?”
“If they were in heavily redacted documents of October 2010, this is the first time I’ve heard this,” Sloboda responded.
“Why did that happen?” asked Smith.
“I don’t know.”
“Could it be that Mr. Assange took a cavalier attitude?”
“No,” said Sloboda.
“What’s the alternative?” asked Smith.
“I imagine that some elements, for some unknown reason, of the redaction program allowed those names to remain in the documents, that is conjecture,” said Sloboda.
It is important to bear in mind that it has been established that revealing the names of informants is not against U.S. law. So essentially, the main U.S. argument so far in these hearings is that because Assange didn’t care about bringing harm to individuals, which is not a crime, he should be extradited to the United States to face 175 years in prison.
The government argument is that informants’ names are “defense information” and therefore protected by the Espionage Act. “Defense information” need not be classified.
5:07 am EDT:Court is in session for Day 8 of Julian Assange’s resumed extradition hearing at Old Bailey in London. First defense witness up is Prof. John Sloboda, co-founder of Iraq Body Count.
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