US Again Insists Journalists are Not Precluded
From Prosecution Under the Espionage Act
By Joe Lauria
Special to Consortium News
Under resumed cross examination of defense witness Carey Shenkman, a civil rights and constitutional lawyer, the prosecution sought to clearly establish that Section 793(e) of the Espionage Act does not preclude a journalist being prosecuted for possession and dissemination of national defense information.
In numerous attempts by the prosecutor, Clair Dobbin, to elicit a simple affirmative response to this assertion, Shenkman instead unleashed a barrage of legal cases and scholarly opinion which amounted to “it’s not that simple.” “
“You ask, is there a law precluding prosecution of journalists, but there is a combination of statues and also the U.S. Constitution,” Shenkman said. “The Constitution is the law of the land.” Dobbin then led Shenkman into the deep weeds of three important Espionage Act cases involving the media. Shenkman added several of his own.
Dobbin first tried to get Shenkman to simply agree that dissenting opinion in The New York Times vs U.S. Pentagon Papers case left open the possibility that the Times could be prosecuted after the fact of publication. The Supreme Court decided that the government could not exercise prior restraint, that is, ordering a newspaper not to publish something in advance, as the Nixon Department of Justice had done.
Dissenting opinion in that case held that the Times could be prosecuted after the fact for violating the Espionage Act. Shenkman responded that since that issue was never argued in the prior restraint case that he couldn’t conclude that it meant journalists can be prosecuted post-publication.
Shenkman brought up the related Beacon Press case, and compared it to WikiLeaks. Daniel Ellsberg had leaked the Papers to Senator Mike Gravel, who put them into the Congressional Record by reading hundreds of papers at a committee meeting (Public Buildings and Grounds) and putting the rest into the record.
Gravel was protected by the Speech and Debate clause of the U.S. Constitution, which forbids any member of Congress from being questioned about anything they say in the midst of a legislative act. But Gravel then went to Beacon Press in Boston with the Papers to be published as a four-volume book.
For that he would not be protected and Nixon could have gone after him under the Espionage Act. Instead Nixon sent the FBI to Beacon Press offices and threatened to prosecute. This Shenkman said was an example of how the mere threat of prosecution and the legal cost incurred almost bankrupted Beacon Press and was an example of how an actual prosecution was not necessary to cast a chill over the free press.
Shenkman said this in response to a somewhat astonishing assertion by Dobbin that because the government had never actually prosecuted a publisher or journalist (before Assange) it meant the government was exercising restraint on its powers.
Shenkman drew a comparison between Beacon Press and WikiLeaks in response to Dobbin’s equally astonishing statement that the government had only threatened to prosecute large media in the past. He said that like WikiLeaks, Beacon Press wanted to create a library of classified documents.
“Do you understand the nature of the charges against Mr. Assange,” Dobbin asked. “Do you accept they bear no comparison to the examples you give?”
“I don’t agree,” Shenkman said. “In Beacon Press similar allegations were made about the entire set of the Pentagon Papers.”
“That is a frivolous and nonsensical statement in the face of the charges against Mr. Assange.”
“That’s your position, but the history and the evidence I submitted disagrees with that,” Shenkman said.
He also cited the case of the publication Amerasia, which the FBI raided and seized thousands of classified documents from in 1945. There was division in the State Department over policy towards China and some officials leaked the documents to bolster their side. The government tried to build a conspiracy case between the editors and the officials, Shenkman said, much like the case of conspiracy between the editor Assange and his source Chelsea Manning, but no indictment was brought against Amerasia.
Shenkman made plain that the reasons the government has attempted to prosecute editors and journalists was because they opposed the administration, revealed government misconduct or opposed its policies–reasons no different from any repressive regime. He went as far as to say the executive branch was making the actual law in espionage cases because it decided what was classified and what was defense information, and which cases to prosecute. Dobbin angrily dismissed this as “wrong.”
Dobbin then grilled Shenkman about the case of Samuel Morrison, an employee of Naval Intelligence, who in 1988 leaked classified photos of a Soviet ship to Janes Fighting Ships magazine. As a government insider who had signed a non-disclosure agreement, Morrison was charged under the Espionage Act. He argued that he was protected by the First Amendment because it was a leak to the press and not to a foreign government.
Morrison was convicted and lost on appeal. One of the appellate judges, Donald Stewart Russell, wrote that section 794 of the Act dealt with classic espionage but that 793 made liable any individual who had passed secrets to unauthorized persons and the person who received them.
As Dobbin pointed out, Russell dismissed the First Amendment consideration in the case. It was only on re-direct examination, that the defense established that two other judges in the case did consider the relevance of the First Amendment.
Dobbin also drew on the Morrison case’s rejection of the argument that the Espionage Act was overly broad, a contention Shenkman and many critics of the act make. Dobbin said the Morrison decision made clear that the government would limit its powers and not prosecute persons for ordinary possession of classified material that they may read in a newspaper, or a WikiLeaks release, and would do so only when it caused “damage” to national security.
The interaction between Dobbin and Shenkman was intense as they tried to out lawyer each other. At one point she angrily asked him: “Are you here to try to help Mr. Assange or the court?”
El-Masri’s Story Is Told in Court
7:52 am EDT: Judge Vanessa Baraitser ruled against Khaled El-Masri testifying from the virtual witness stand. She dismissed the Arabic interpreter from the court. The U.S. did not want mention of facts of El Masri case, which the Strasbourg court found to be true, because the U.S. had no input in that case, prosecutor James Lewis QC told the court.
El-Masri was kidnapped in Macedonia in June 2004 by CIA agents and sent to a black site in Afghanistan where he was sodomized, testified German journalist John Goetz on Wednesday. Goetz later found the CIA agents living in North Carolina and his cover story in Der Spiegel led to a German parliamentary investigation and the filing of an arrest warrant by Munich prosecutors for the CIA men, as El-Masri is a German citizen. But the warrant was never issued in the United States, where they lived.
Goetz testified that it wasn’t until the WikiLeaks release of diplomatic cables that he understood why. He said on the stand that cables showed the immense pressure the U.S. put on Germany not to issue U.S. arrest warrants, warning of serious repercussions in U.S.-German relations. Mark Summers, attorney for the defense, told Baraitser on Friday that El-Masri’s testimony about WikiLeaks‘ role in his story is why the defense wanted El-Masri to testify after.
Summers said Lewis wasn’t only objecting to the part of his testimony that laid out apparent criminal activity by the United States, but to its entirety, including as it touched upon WikiLeaks’ involvement in his case. At about this point, Assange cried out from his class cage: “I will not have the testimony of a torture victim suppressed.” Baraitser again warned him he would be removed if he spoke again in court.
John Rees, of WikiLeaks' @DEAcampaign, explains how US government "went to extraordinary lengths" to ensure Mr El-Masri's testimony wouldn't be heard in court resulting in Mr Assange shouting from the dock opposing the silencing of a torture victim.
— Mohamed Elmaazi (@MElmaazi) September 18, 2020
Baraitser compromised by allowing Summers to read into the record El-Masri’s testimony but not allowing him to appear on the stand. El-Masri had had technical difficulties logging into the court prior to this discussion. Summers said it was regrettable that Zoom couldn’t be used instead of the more complicated court video system.
Summers Tells His Story
Summers then told of how El-Masri endured five months of torture and was eventually released on condition that he not speak about what had happened to him. His release was in the dead of night in a place he did not recognized. Told to walk forward he feared being shot in the back. He then discovered he was in Albania and eventually made it back to Germany, where he “sought accountability” for what had happened to him, Summers said.
Instead he was treated with derision and threats until he found a German lawyer to pursue his case. Eventually Goetz pursued his story, discovering the CIA agents in the U.S. His Spiegel story led to the Munich arrest warrants, but as the WikiLeaks diplomatic cables showed, the U.S. deputy chief of mission, pressured German officials not to issue the arrest warrant in the U.S.
“As a result of the cables it is now known, but as not known at time of warrant, that Germany bowed to pressure not to seek the extradition of the 13 CIA agents,” Summers read. The effect of the U.S. threat was that a German and parliamentary probe into his case was impeded.
Summers says that the European Court of Human Rights in December 2012 decided El-Masri’s story was true, and its grand chamber said the WikiLeaks cable were relied upon by the court. FOIA lawsuits in U.S. revealed that the CIA inspector general had investigated the story and determined that El-Masri’s torture and detention was unjustified.
El-Masri then commenced a lawsuit in Eastern District of Virginia, Summers pointing it is the same court Assange is involved with, against the CIA agents and those who controlled them. But the U.S. attorney declined to pursue the case.
The ACLU initiated proceedings in the Inter-American Commission on Human Rights which led to a complaint to the International Criminal Court, which in March decided to investigate. Secretary of State Mike Pompeo reacted by saying that extreme measures would be taken against the ICC and its prosecutors. “Mr. El-Masri said that without the brave exposure of state secrets what happened to him would never have been understood,” Summers said.
Robinson Tells Court of Congressman’s
Offer to Julian Assange in 2017
7:24 am EDT: Jennifer Robinson, a member of Assange’s legal team, had a statement read out in court on her behalf in which she recounted a visit by then U.S. Congressman Dana Rohrabacher to Julian Assange at the Ecuadorian embassy in London on Aug. 15, 2017 where Robison was present.
Robinson said in her statement that Rohrabacher claimed to be representing President Donald Trump on a mission in which the president would look favorably on preventing an indictment of Assange in return for the WikiLeaks publisher naming his source for the Democratic National Committee emails.
The leaks before the 2016 U.S. presidential election had led to a firestorm of allegations that Russia had provided those documents and that Trump was somehow in league with Russia and WikiLeaks to hurt his Democratic challenger, Hilary Clinton.
Rohrabacher told Assange, according to Robinson’s statement, that Assange could help Trump politically as well as to end the dangerous escalation of Cold War-like tensions between Russia and the United States if he could provide evidence of who the actual leaker of the Democratic emails was. “Rohrabacher proposed a ‘win-win’ situation, Mr. Assange can get ‘get on with his life’ – a pardon in exchange for information about the source,” Robinson’s statement said. “Information from Mr. Assange about the source of the DNC leaks would be of value to Mr. Trump.”
Assange refused, Robinson’s statement said.
James Lewis QC for the prosecution rose after the statement was read to say the U.S. government did not contest that Robinson was telling the truth but that it did not accept that Rohrabacher was.
Informants Are Still the Issue for the Prosecution
6:35 am EDT: First defense witness was Nicky Hager, a New Zealand investigative journalist, who testified, as other defense witnesses have, that Assange took extraordinary precautions in redacting names of informants from WikiLeaks documents before publication. Hager worked with WikiLeaks on documents pertaining to New Zealand and Australia.
Hager also spoke of the value of the leaks in his writing of several books, including one Hit and Run, about the conduct of New Zealand troops in Afghanistan.
On cross examination, prosecutor James Lewis QC attempted to show that Assange recklessly published the entire un-redacted contents of the diplomatic cables. Lewis again brought up the incident at the Moro restaurant in London where David Leigh and Luke Harding allege in their book that Assange said he didn’t care if informants were harmed.
John Goetz, a German journalist present at the dinner, took the stand earlier this week was was stopped by the judge from saying that Assange never made such a statement. Hager said he wouldn’t comment on what he saw as an unreliable statement about the dinner in Leigh and Harding’s book.
Lewis then got Hager to testify that he never needed to name informants in his own work, implying that Assange didn’t either. Lewis tried to corner him into saying that he spent only a few days redacting names from the WikiLeaks documents that he worked on in regard to New Zealand, while Stefania Maurizi, an Italian journalist who Lewis mischaracterized as male, has testified in her written statement that she and another journalist took nine months to redact 4,000 pages.
Hager said that in the New Zealand context named individuals would only suffer political embarrassment, and not harm as in Afghanistan.
Lewis again made the point as he has before that Assange is not charged with releasing the Collateral Murder video, which Hager mentioned in his witness statement. But on re-direct, defense attorney Edward Fitzgerald was able to establish that the video is still relevant to the case because Assange has been charged with receiving and publishing the Iraq rules of engagement, without which one cannot determine that the video violated them.
That he was charged with this also again establishes the falsity of the prosecution effort to say Assange is only being charged for releasing documents with informants names.
The prosecution brought up a statement, as it has before, that Assange made at the Front Line Club in London in 2011, in which Assange said WikiLeaks had no obligation to protect other people’s sources from “unjust retribution.” Fitzgerald on re-direct examination point out that that could mean sources who were agent provocateurs and that journalists had in the past revealed, such as in Northern Ireland.
Friday morning’s testimony again saw the prosecution zeroing in on the naming of informants. Hager joined other witnesses in explaining that WikiLeaks only published the unredacted cables after Leigh and Harding published the password to them in their book.
5 am EDT: Court is in session.
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