Friday gave us the most emotionally charged moments yet at the Assange hearing, showed that strange and sharp twists in the story are still arriving at the Old Bailey, and brought into sharp focus some questions about the handling and validity of evidence, which I will address in comment.
The first witness of the day was Nicky Hager, the veteran New Zealand investigative journalist. Hager’s co-authored book “Hit and Run” detailed a disastrous New Zealand SAS raid in Afghanistan, “Operation Burnham”, that achieved nothing but the deaths of civilians, including a child. Hager was the object of much calumny and insult, and even of police raids on his home, but in July an official government report found that all the major facts of his book were correct, and the New Zealand military had run dangerously out of control:
“Ministers were not able to exercise the democratic control of the military. The military do not exist for their own purpose, they are meant to be controlled by their minister who is accountable to Parliament.”
Edward Fitzgerald took Hager through his evidence. Hager stated that journalists had a duty to serve the public, and that they could not do this without access to secret sources of classified information. This was even more necessary for the public good in time of war. Claims of harm are always made by governments against any such disclosures. It is always stated. Such claims had been frequently made against him throughout his career. No evidence had ever emerged to back up any of these claims that anybody had been harmed as a result of his journalism.
When Wikileaks had released the Afghan War Logs, they had been an invaluable source to journalists. They showed details of regular patrols, CIA financed local forces, aid and reconstruction ops, technical intelligence ops, special ops and psychological ops, among others. They had contributed much to his books on Afghanistan. Information marked as confidential is essential to public understanding of the war. He freqently used leaked material. You had to judge whether it was in the higher public interest to inform the public. Decisions of war and peace were of the very highest public interest. If the public were being misled about the conduct and course of the war, how could democratic choices be made?
Edward Fitzgerald then asked about the collateral murder video and what they revealed about the rules of engagement. Hager said that the Collateral Murder video had “the most profound effect throughout the world”. The publication of that video and the words “”Look at those dead bastards” had changed world opinion on the subject of civilian casualties. In fact the Rules of Engagement had been changed to put more emphasis on avoiding civilian casualties, as a direct result.
In November 2010 Hager had travelled to the UK to join the Wikileaks team and had become involved in redacting and printing stories from the cables relating to Australasia. He was one of the local partners Wikileaks had brought in for the cables, expanding from the original media consortium that handled the Afghan and Iraqi war logs.
Wikileaks’ idea was a rigorous process of redaction and publication. They were going through the cables country by country. It was a careful and diligent process. Wikileaks were very serious and responsible about what they were doing. His abiding memory was sitting in a room with Wikileaks staff and other journalists, with everyone working for hours and hours in total silence, concentrated on going through the cables. Hager had been very pleased to see the level of care that was taken.
Edward Fitzgerald asked him about Julian Assange. Hager said he found him completely different to the media presentation of him. He was thoughtful, humorous and energetic. He dedicated himself to trying to make the world a better place, particularly in the post 9/11 climate of a reduction of citizen freedoms in the world. Assange had a vision that the digital age would enable a new kind of whistleblower which could correct the information imbalance between government and citizen. This was against a background of torture, rendition and w
ar crimes being widely committed by western governments.
James Lewis QC then rose to cross-examine on behalf of the US government
Lewis Have you read the indictment and the extradition request?
Lewis What charges do you see there?
Hager I see a mish-mash. Some charges of publication, some of possession then other stuff added.
Lewis Assange is not charged with publishing the collateral murder video your evidence says so much about
Hager You can’t look at the effect the Wikileaks revelations had on the world in that kind of neat and compartmentalised way. The cables, logs and all the rest affected the world as a whole.
Lewis Is Assange charged with publication of any of the documents you have relied on in your works?
Hager That would take me some research to find out, which he is charged with publishing and which with possession.
Lewis Have you ever paid a government official to give you secret information?
Lewis Have you ever hacked?
Hager No, probably. That depends how you define “hack”.
Lewis You have as a journalist merely been the passive recipient of official information. Presumably you have never done anything criminal to obtain government information?
Hager You said “passive”. That is not the way we work. Journalists not only actively work our sources. We go out and find our sources. The information might come in documents. It might come on a memory stick. In most cases our sources are breaking the law. Our duty is to help protect them from being caught. We actively help them cover their backs sometimes.
Lewis In your report on Operation Burnham you protected your sources. Would you knowingly put a source in danger?
Hager No, of course not. However…
Lewis No. Stop. You answered
Edward Fitzgerald QC rose to object but found no support from the judge.
Lewis On 2 September 2011 the Guardian published an editorial article abhorring Wikileaks’ publishing of unredacted cables and stating that hundreds of lives had been put in danger. Do you agree with those statements?
Hager My information is that Wikileaks did not release the cables until others had published.
Lewis We say your understanding is wrong. On 25 August Wikileaks published 134,000 cables including some marked “strictly protect”. What is your opinion on that?
Hager I am not going to comment on a disputed fact. I do not personally know.
Lewis The book “Wikileaks: the Inside Story” by David Leigh and Luke Harding of the Guardian newspaper states that Assange “wished to release the whole lot sooner”. It also states that at a dinner at El Moro restaurant, Assange stated that if informants were killed, they had it coming to them. Would you care to comment?
Hager I know that there was great animosity between David Leigh and Julian Assange by the point that book was written. I would not regard that as a reliable source. I do not want to dignify that book by answering it.
Lewis Are you trying to assist the court or assist Assange? In a talk recorded at the Frontline Club, Assange stated that Wikileaks only had a duty to protect informants from “unjust” retribution, and that those who gave information to US forces for money or engaged in “truly traitorous” behaviour deserved their fate. Do you support that statement?
Lewis You say it would have been impossible to write your book without confidential material from Wikileaks. Did you need the names of informants?
Lewis The Operation Burnham report found at p.8 that, contrary to your assertions “New Zealand Defence Forces were not involved in planning preparation and execution”.
Hager What you have quoted does not relate to the main operations covered in the book. It only refers to something covered as a “minor footnote” in the book. Most of the findings of the book were confirmed.
Lewis The Official Report states of your book “Hit and Run was inaccurate in some respects”.
Hager We did not get everything right. But the major points were all true. “Civilian casualties confirmed. Death of child confirmed. Prisoner beaten up confirmed. Falsified reports confirmed.”
Lewis How many cables did you personally review?
Hager A few hundred. They were specifically cables relating to Australasia.
Lewis And what criteria did you use to make redactions?
Hager There were quite a few names marked “strictly protect”. This was not, in the context, for reasons of safety in the countries which I was working on. It was purely to avoid political embarrassment.
Lewis But how long did you work in London on the cables?
Hager It was several days, to do several hundred cables.
Lewis Did you show your statement to the defence in draft?
Hager Yes, I have always done this when I have submitted an affidavit.
[This is normal. Affidavits or statements from defence witnesses are normally drawn up and, if affidavits, taken under oath by the defence solicitors.]
Lewis Did the defence suggest to you that you should place the section on Rules of Engagement next to the Collateral Damage video?
Hager Yes. But I was very happy to do it, it made perfect sense to me.
Edward Fitzgerald QC then rose again for the re-examination.
Fitzgerald You were asked if you know what Assange is charged with. Do you know he is charged with obtaining and receiving all of the diplomatic cables, the Iraq war logs, the Afghan war logs, the rules of engagement, and the Guantanamo detainee assessments?
Fitzgerald And he could not have published any of them without first obtaining and receiving them? So the distinction as to which he is charged for publishing makes no difference to the liability of journalists like yourself to the Espionage Act for obtaining and receiving US classified information?
Fitzgerald You work with sources. That means the person who provides you with the information or material. And do you have a duty to protect that source?
Fitzgerald You were asked about the September 2011 publication of cables. What do you know about how that came about?
Hager I believed the Wikileaks people and witnessed their extreme seriousness in the redaction process to which they invited me in. I do not believe they suddenly changed their mind about it. This publication came about through a series of bad luck and unfortunate events, not by Wikileaks. But that nine month redaction process was not wasted. Wikileaks had at an early stage warned the US authorities and invited them to be part of the redaction process. Assange had stressed to US authorities the danger to those named in the report. While the US authorities had not got involved in redaction, they had started a massive exercise in warning those named in the reports that they might have been in danger, and helping those the most at risk to take measures to relocate. I think this is overlooked. Julian Assange bought those people nine months. I also believe that is the major part of the explanation why in the end there were no identifiable deaths and was no wholesale damage.
Fitzgerald What do you believe the bad luck to have been?
Hager I understand it was the publication of a password in the Leigh/Harding book, but I have no direct knowledge.
Fitzgerald On this book, you have said there was bad blood between Luke Harding, David Leigh and Julian Assange.
Hager Yes, I would not put much weight on that book as a source myself.
[I hope you will forgive me for adding personal knowledge here, but the bad blood was nothing to do with redaction and everything to do with money. Julian Assange was briefly the most famous man in the world for a while and had not yet been tarnished with the allegations arranged in Sweden. Rights to an Assange book on Wikileaks and a biography were potentially worth millions to the authors. Collaboration had been discussed with Leigh but Julian had decided against. The Guardian were furious. That is what really happened. It seems a good explanation of why they instead published a money-spinning book attacking Assange. It does not really explain why they published the password to the unredacted cable cache in that book.]
Fitzgerald Julian Assange stated at the Frontline Club that sources had to be protected from “unjust retribution”. Do you agree with that?
Fitzgerald He was trying to draw a distinction with categories who do not deserve protection. Informants who give false information for money, agents provocateurs, those who turn in innocents for personal motives. We have seen the press in the UK, for example, name certain informants in Northern Ireland who had played a bad part. What do you think of naming informants in those kind of circumstances?
Hager I don’t want to comment on Northern Ireland. It is all a very difficult topic.
Fitzgerald Could you comment further on the collateral murder video and the rules of engagement?
Hager The RoEs simply govern when soldiers can and cannot use force. They raise important questions. Are they correct? Do they minimise civilian casualties? Are they consistent with the laws of armed conflict?
Fitzgerald One charge related to receiving and obtaining the RoEs. Is that why you mentioned them?
Hager Yes. The soldiers always retain the base right of self-defence. There is no basis for claiming their publication poses a dire risk for the troops. It arguably leads to less conflict if people know when force will and will not be used.
Fitzgerald You affirm that when the defence asked you to put together the collateral murder video with the rules of engagement, you agreed purely on the basis that was correct and right in your own opinion?