Former British diplomat Craig Murray was in the public gallery at Old Bailey for Julian Assange’s hearing and here is his report on Monday’s bizarre events.
By Craig Murray
Things became not merely dramatic in the Assange courtroom today, but spiteful and nasty. There were two real issues, the evidence and the procedure.
On the evidence, there were stark details of the dreadful regime Julian Assange will face in U.S. jails if extradited.
On the procedure, we saw behavior from the prosecution Queen’s Counsel that went well beyond normal cross examination and was a real attempt to denigrate and even humiliate the witness. I hope to prove that to you by a straightforward exposition of what happened today in court, after which I shall add further comment.
Today’s witness was Eric Lewis. A practicing U.S. attorney for 35 years, Lewis has a doctorate in law from Yale and a masters’ in criminology from Cambridge. He is former professor in law at Georgetown University, an elected member of both the American Law Institute and the Council on Foreign Relations and a fellow of the American Bar Foundation. He is chairman of Reprieve, an international human rights group focused on the death penalty and other human rights abuses. He has represented high profile clients in national security and terrorism cases, including the journalist Seymour Hersh and Guantanamo Bay internees.
Lewis had submitted five statements to the court, between October 2019 and August 2020, addressing the ever changing indictments and charges brought by the prosecution. He was initially led through the permitted brief half hour summary of his statements by defence QC Edward Fitzgerald. (I am told I am not currently allowed to publish the defence statements or links to them. I shall try to clarify this tomorrow).
The New York Times Problem
The New York Times Building, Manhattan. (Defears, CC BY-SA 4.0, via Wikimedia Commons)
Eric Lewis testified that no publisher had ever been successfully prosecuted for publishing national security information in the USA.
Following the WikiLeaks publications — including the diplomatic cables and the Iraq and Afghanistan war logs — Assange had not been prosecuted because the First Amendment was considered insuperable and because of The New York Times problem — there was no way just to prosecute Assange without prosecuting The Times for publishing the same material.
The New York Times had successfully pled the First Amendment for its publication of the Pentagon Papers, which had been upheld in a landmark Supreme Court judgement.
Lewis here gave evidence that mirrored that already reported of Professor Mark Feldstein, Trevor Timm and Professor Paul Rogers, so I shall not repeat all of it.
He said that credible sources had stated the Obama administration had decided not to prosecute Assange, notably Matthew Miller, a highly respected Justice Department figure who had been close to Attorney General Eric Holder and would have been unlikely to brief the media without Holder’s knowledge and approval.
Eric Lewis than gave testimony on the change of policy towards prosecuting Assange from the Trump administration. Again this mostly mirrored the earlier witnesses.
He added detail of U.S. Secretary of State Mike Pompeo stating the the free speech argument for WikiLeaks was “a perversion of what our great country stands for,” and claiming that the First Amendment did not apply to foreigners.
Mike Pompeo as CIA director calling WikiLeaks a nonstate hostile actor. (Screenshot)
Attorney General Jeff Sessions had accordingly stated that it was “a priority for the Justice Department” to arrest Julian Assange. He had pressured prosecutors in the Eastern District of Virginia to bring a case. In December 2017 an arrest warrant had been issued, with the indictment to be filled in later. The first indictment of a single count had been launched in March 2018, its timing possibly dictated by a limitation deadline.
In May 2019 a new superseding indictment increased the counts from one to 18, of which 17 related to espionage. This tougher stance followed the appointment of William Barr as attorney general just four months previously.
The plain intention of the first superseding indictment was to get around The New York Times problem by trying to differentiate Assange’s actions with Manning from those of other journalists.
It showed that the Justice Department was very serious and very aggressive in acting on the statements of Trump administration officials. Barr was plainly acting at the behest of Trump. This represented a clear abuse of the criminal enforcement power of the state.
The prosecution of a publisher in this way was unprecedented. Yet the facts were the same in 2018 as they had been in 2012 and 2013; there was no new evidence behind the decision to prosecute.
Crucially, the affidavits of U.S. Assistant Attorney Gordon Kromberg present no legal basis for the taking of a different decision to that of 2013. There is no explanation of why the dossier was lying around with no action for five or six years.
The Trump administration had in fact taken a different political decision through the presidential spokesperson Sarah Sanders who had boasted that only this administration had acted against Assange and “taken this process seriously.”
Former White House Press Secretary Sarah Huckabee Sanders speaking with reporters,May 31, 2019, outside the West Wing. (White House, Tia Dufour)
Question of Probable Sentencing
Edward Fitzgerald QC then turned to the question of probable sentencing and led Lewis through his evidence on this point.
Lewis confirmed that if Julian Assange were convicted he could very probably spend the rest of his life in prison. The charges had not been pleaded as one count, which it had been open to the prosecution to do. The judge would have discretion to sentence the counts either concurrently or consecutively. Under current sentencing guidelines, Assange’s sentence if convicted could range from “best case” 20 years to a maximum of 175 years. It was disingenuous of Gordon Kromberg to suggest a minimal sentence, given that Chelsea Manning had been sentenced to 35 years and the prosecution had requested 60.
It had been a government choice to charge the alleged offences as espionage. The history of espionage convictions in the USA had generally resulted in whole life sentences; 20-to-30 years had been lighter sentences for espionage. The multiple charges approach of the indictment showed a government intention to obtain a very lengthy sentence. Of course the final decision would lay with the judge, but it would be decades.
Edward Fitzgerald QC. (YouTube)
Assange’s attorney Edward Fitzgerald QC then led on to the question of detention conditions. On the question of remand, Gordon Kromberg, the U.S. assistant attorney, had agreed that Julian Assange would be placed in the Alexandria City Jail, and there was a “risk” that he would be held there under Special Administrative Measures, or SAMS.
In fact this was a near certainty. Assange faced serious charges related to national security, and had seen millions of items of classified information which the authorities would be concerned he might pass on to other prisoners. He would be subject to Special Administrative Measures both pre- and post-conviction.
After conviction Julian Assange would be held in the supermax prison ADX Florence, Colorado. There were at least four national-security prisoners currently there in the H block.
Under SAMS Assange would be kept in a small cell for 22 or 23 hours a day and not allowed to meet any other prisoners. He would be allowed out once a day for brief exercise or recreation excluded from other prisoners, but shackled.
Fitzgerald then led Lewis to the 2017 decision by the International Criminal Court to open an investigation into war crimes in Afghanistan, in which the evidence provided by the WikiLeaks release of U.S. war logs and diplomatic cables provided essential evidence.
This had been denounced by President Donald Trump, National Security Advisor John Bolton and Pompeo. The ICC prosecutor’s U.S. visa had been canceled to hinder the investigation. An Executive Order had been issued imposing financial sanctions and blocking the banking access of any non U.S. national who assisted the ICC investigation into crimes alleged against any U.S. citizen. This would affect Julian Assange.
At this point, the half-hour guillotine imposed by Judge Vanessa Baraitser on defence evidence came down. Fitzgerald pointed out they had not even reached the second superseding indictment yet, but Baraitser said that if the prosecution addressed that in cross examination, then the defence could question on it in re-examination.
Read the entire article here.