Today, nothing is more important than to say that we will not be silent on the dreadful oppression of the Palestinian people; the daily beatings, killings, humiliations, demolitions, expropriations and destruction of groves that are the concomitant of Israeli illegal occupation.
We will never be browbeaten into silence on the slow genocide of the Palestinian people.
Nobody with any grasp on the location of their right mind believes Jeremy Corbyn to be an anti-Semite. Nobody with any grasp on their right mind believes the Labour Party is now anything but the substitutes’ bench for the Neoconservative team. Under Keir Starmer, the Labour Party has failed to oppose the granting of legal powers to the security services to kill, torture, entrap, forge and fake with impunity. It has failed to oppose the limitation of prosecution of British soldiers for war crimes. The Labour Party now seeks to erase all trace that it might once have been a party that offered an alternative to the right wing security state.
As Director of Public Prosecutions, Keir Starmer pressurised Swedish prosecutors who wished to drop the case against Julian Assange, to persist in order that he might be rendered to the USA. He further persuaded them not to interview Julian here, which is standard practice when he was never charged but only wanted for questioning, and which would have reduced Julian’s ordeal by four years.
Starmer received £50,000 in personal donations from lobbyist Sir Trevor Chinn to fund his leadership bid.
It is perfectly plain that Starmer’s aim in suspending Corbyn is to drive the mass membership that Corbyn attracted out of the Labour Party, and make it a reliable arm of the right wing security state. He wants the Labour Party to be financially dependent not on its members, who have annoying principles, but on donors like Chinn.
The media and political elite have attained their aim; there is no longer any point in voting in Westminster elections. A right wing government supporting the neo-con status quo and the ever tightening security state is now firmly guaranteed and cannot be influenced by a Westminster election.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
Today was a particularly interesting meeting of the Holyrood Inquiry into the mishandling of the Salmond affair, with two senior civil servants, Judith Mackinnon and Barbara Allison, who both had very convenient and complete failures of memory, about key points which just happened to be the very points on which the committee had previously been lied to.
To take Barbara Allison first, she had been happily on holiday in Mauritius. I am sure it is of great comfort to the ordinary people of Scotland that, as has been clear from this inquiry, the Scottish Government employs an extraordinary plethora of officials, nearly all of them female, in non-jobs with silly titles at salaries that enable them to spend their vacations at the most expensive and exclusive spots on the planet.
Now Ms Allison, Director of Communications, had forgotten that, on the day Alex Salmond won the judicial review case against the Scottish Government, she had immediately texted from Mauritius to Permanent Secretary Leslie Evans, and that Leslie Evans had instantly replied “Battle may be lost but not the war.” She denied it had happened under oath to the committee when she gave evidence on 15 September 2020. She only remembered it when the Crown Office subsequently handed over the text – which police Scotland had taken from her own phone – to the Committee. She then was forced to write to the Committee correcting her evidence, which if the text had never been produced, presumably she would never have done.
The remarkable thing is, that Leslie Evans’ message had been famous ever since the Alex Salmond trial. It had featured quite literally scores of times in the media after being mentioned in the evidence at Alex Salmond’s preliminary hearing (where it was among the evidence the defence were banned from using at trial) and after being quoted from the steps of the court room by Alex Salmond after his complete acquittal. It is the subject of this column by Iain Macwhirter, for example, and features in the title. Presumably as part of her job Ms Allison must have followed all this, but none of it jogged her memory that she had received the message. Even when Leslie Evans gave evidence to the Inquiry on 8 September that she had sent the message, that did not remind Ms Allison that she had received the message before she explicitly denied, under oath, receiving it to the committee exactly one week later.
It is plain from the messages that Evans and Allison are close. Civil servants do not normally add kisses to work related texts. We are asked to believe that on 8 September Evans gave evidence on this text message to Allison, and did not mention it to Allison before her own appearance before the committee the following week. That is ludicrous.
But remarkably, the fog of Allison’s memory still has not cleared. Nothing has yet been jogged. The infamous text from Evans is evidently a reply to one from Allison. Evans’ reply begins “Thanks Barbara”. Yet Allison today told the committee, again under oath, that she had no recollection of sending Evans her initial text and no recollection what she had said in it. In fact she testified she had no recollection of the event at all.
Let us dig a bit further into that. Imagine you are in Mauritius on holiday. It is a wonderful place.
You are there on holiday. You are relaxing by the sea in the magnificent scenery and enjoying a drink or a meal. You receive immediate notification of the result of the Salmond civil case judicial review, thousands of miles away. How? It did not make the Mauritian or the international media. Plainly somebody has contacted you to give you the news instantly. Had you organised for that, or had someone thought it so important as to bother you on your holiday?
[As a former senior civil servant myself, I can tell you for certain that an event would have to be considered extremely significant, and requiring indispensable involvement of a particular civil servant, for them to be interrupted when away on a holiday. Plainly, this was not casual.]
Your tropical idyll has been interrupted. You then immediately initiate an exchange of texts with the Permanent Secretary. You now cannot – just eighteen months later – recall any of this happening at all.
I just do not buy it. I do not believe it. I do not accept it. It is my opinion (cf Dugdale vs Campbell libel case) that Barbara Allison gave a very strong impression that she is a liar.
The content of Barbara Allison’s text is of course very important, because of Leslie Evans’ wildly improbable explanation to the committee, that when she said “battle may be lost but not the war”, with reference to the judicial review case against Alex Salmond, the “war” to which she referred was not the war against Alex Salmond, but rather a wider struggle that government should have “equality at the heart of what it does”. In this (frankly unbelievable) context, the missing Barbara Allison text message becomes very important indeed.
Did Allison text that day from Mauritius “God that bastard Salmond won. We have to nail him”, to which Evans replied “Thanks Barbara, the battle may be lost, but not the war”? Or did Allison text from Mauritius “I am in full support of the effort to incorporate equality and women’s rights at the heart of all we do”, to which Evans replied “Thanks Barbara, the battle may be lost, but not the war.” As I hope you see, it makes a major difference which it is.
Unfortunately, of course, Allison has (ahem) forgotten what her text message said. And here is the extraordinary thing – she had deleted that key message before she handed her phone over to the police. Now, she had not deleted her messages with one of the accusers from months earlier. Also she had not deleted the reply from Lesley Evans to her deleted text, nor had she deleted her reply to Lesley Evans’ reply to her missing text. We are left with this:
Text X – deleted
“Thanks Barbara. Battle maybe lost but not the war. Hope you are having lovely and well deserved break. L”
“Thanks Lesley. It is lovely here. My mind and thoughts are with you all there tho. Best wishes B. x ”
Now why did text X get deleted and not the other two? Allison told the committee that she routinely deletes texts to unclutter her phone.
Is that not rather strange? We all know how text messages work – your phone shows you the most recent message in a conversation first. So scrolling back, Allison decided to keep the last two but to delete the third one back? Why that one? Why not the whole exchange? It is very hard to think of any logical explanation for that selection – unless the deleted text happened to say something like “God that bastard won. We have to nail him”, which might be incriminating given the subsequent (ahem) organisation of complainants for the criminal case. But as Allison cannot remember writing or deleting that text message, we may never know.
Except of course, we should know. Police Scotland took the messages from the phone to give to the Crown Office. Unfortunately the interest of Police Scotland was in conspiring with Peter Murrell to fit up Alex Salmond. Had they not been otherwise fixed on a corrupt intent, Police Scotland would have been able to deploy their resources to recover the obviously missing deleted text, either from the iPhone or from the service provider.
Let us leave the unpleasant Ms Allison to stew in her own mendacity, and move on to another unreliable witness with a very poor memory, Judith McKinnon. Now I have to refer here to an earlier witness, civil servant Mr James Hynd, who had evidently been selected to take upon himself the responsibility for having devised a procedure to investigate ex-ministers. He had testified it was entirely his own idea, that he had never discussed it with anybody at all, and that it had first existed in a draft policy he had alone written.
Unfortunately this attempt to sanitise the genesis of the “get Salmond” policy quickly collapsed as documents have slowly been squeezed out of the Scottish government showing that a procedure against ex-ministers had been discussed by civil servants and special advisers before Hynd “first” thought of it, including by Judith McKinnon, who had gone on to coach the initial complainants against Alex Salmond. In fact, Mckinnon had produced a “flowchart” of the new procedure including ex-ministers, dated before Hynd’s document which he claimed was the first time the idea had been thought of. Hynd was another one forced to write to the committee to “clarify” his evidence under oath.
Today McKinnon was pressed on why she had included ex-Ministers in her flowchart before Hynd had thought of it, and McKinnon replied that it had been generally discussed and was generally agreed. Pressed by committee members as to who she had generally discussed it with, and whether this included Leslie Evans or the First Minister’s office, McKinnon replied that – she had forgotten who she discussed it with.
Now there is a shock.
Scotland employs, on very high salaries, a quite fascinating number of women with very poor memories.
The members of the committee were most excited about another point. They questioned both women on the fact that the new procedure which the court had found unlawful and tainted by apparent bias, under which McKinnon could both coach complainants and be the investigating officer, was still in place. There was, huffed Alex Cole Hamilton, the possibility the same mistake could be made again and the taxpayer again lose a great deal of money.
Silly Mr Cole Hamilton. He has not yet understood that the “new procedure” was only ever a single shot, designed to “get” Alex Salmond. There was never any chance it would be used against anybody else. So why bother to amend it now?
Finally and perhaps even more interestingly, today a letter has been released which Alex Salmond wrote to James Hamilton, who is conducting the investigation into whether Nicola Sturgeon broke the ministerial code. This entire letter is well worth reading, but this bit is truly stunning. Alex Salmond points out that Hamilton’s remit was written by Sturgeon’s deputy John Swinney, and he suggests it is a “straw man”, deliberately misdirecting Hamilton to areas where Sturgeon probably did not break the ministerial code.
Salmond instead suggests other areas where Sturgeon did actually break the ministerial code, and asks Hamilton if he is able to investigate them or just carrying out the Swinney defined charade. This is the first direct and public attack by Alex on Nicola since she conspired to have him jailed, and it is extremely significant. I am hopeful it may be the starting point of a change towards a Scottish government that will actually use its popular mandate to act on Independence.
UPDATE I have been informed it wasn’t Mauritius, it was the Maldives. Which is, of course, even more spectacularly exclusive and expensive.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
The true mortality rate of covid-19 remains a matter of intense dispute, but it is undoubtedly true that a false public impression was given by the very high percentage of deaths among those who were tested positive, at the time when it was impossible to get tested unless you were seriously ill (or a member of society’s “elite”). When only those in danger of dying could get a test, it was of course not at all surprising that such a high percentage of those who tested positive died. It is astonishing how many articles are published with the entirely fake claim that the mortality rate of Covid-19 is 3.4%, based on that simple methodology. That same methodology will today, now testing is much more widely available to those who feel ill, give you results of under 1%. That is still an overestimate as very few indeed of the symptomless, or of those with mild symptoms, are even now being tested.
The Guardian’s daily graphs of statistics since January 1 illustrate this very nicely. It is of course not in fact the case, as the graphs appear to show, that there are now vastly more cases than there were at the time of peak deaths in the spring. It is simply that testing is much more available. What the graphs do indicate is that, unless mortality rates have very radically declined, cases tested on the same basis they are tested today would have given results last spring of well over 100,000 cases per day. It is also important to note that, even now, a very significant proportion of those with covid-19, especially with mild symptoms, are still not being tested. Quite possibly the majority. So you could very possibly double or treble that figure if you were looking for actual cases rather than tested cases.
I do not believe anybody seriously disputes that there are many millions of people in the general population who had covid and survived it, but were never tested or diagnosed. That can include people who were quite badly ill at home but not tested, but also a great many who had mild or no symptoms. It is worth recalling that in a cruise ship outbreak, when all the passengers had to be compulsorily tested, 84% of those who tested positive had no symptoms.
What is hotly disputed is precisely how many millions there are who have had the disease but never been tested, which given the absence of widespread antibody testing, and inaccuracies in the available antibody tests, is not likely to be plain for some time, as sample sizes and geographical reach of studies published to date have been limited. There is no shortage of sources and you can take your pick. For what it is worth, my own reading leads me to think that this Lancet and BMJ published study, estimating an overall death rate of 0.66%, is not going to be far off correct when, in a few years time, scientific consensus settles on the true figure. I say that with a certain caution. “Respectable” academic estimates of global deaths from Hong Kong flu in 1968 to 70 range from 1 million to 4 million, and I am not sure there is a consensus.
It is impossible to discuss covid-19 in the current state of knowledge without making sweeping assumptions. I am going here to assume that 0.66% mortality rate as broadly correct, which I believe it to be (and if anything pessimistic). I am going to assume that 70% of the population would, without special measures, catch the virus, which is substantially higher than a flu pandemic outbreak, but covid-19 does seem particularly contagious. That would give you about 300,000 total deaths in the United Kingdom, and about a tenth of that in Scotland. That is an awful lot of dead people. It is perfectly plain that, if that is anything near correct, governments cannot be accused of unnecessary panic in their responses to date.
Whether they are the best responses is quite another question.
Because the other thing of which there is no doubt is that covid-19 is an extremely selective killer. The risk of death to children is very small indeed. The risk of death to healthy adults in their prime is also very marginal indeed. In the entire United Kingdom, less than 400 people have died who were under the age of 60 and with no underlying medical conditions. And it is highly probable that many of this very small number did in fact have underlying conditions undiagnosed. Those dying of coronavirus, worldwide, have overwhelmingly been geriatric.
As a Stanford led statistical study of both Europe and the USA concluded
People <65 years old have very small risks of COVID-19 death even in the hotbeds of the pandemic and
deaths for people <65 years without underlying predisposing conditions are remarkably uncommon.
Strategies focusing specifically on protecting high-risk elderly individuals should be considered in
managing the pandemic.
The study concludes that for adults of working age the risk of dying of coronavirus is equivalent to the risk of a car accident on a daily commute.
I should, on a personal note, make quite plain that I am the wrong side of this. I am over 60, and I have underlying heart and lung conditions, and I am clinically obese, so I am a prime example of the kind of person least likely to survive.
The hard truth is this. If the economy were allowed to function entirely normally, if people could go about their daily business, there would be no significant increase in risk of death or of life changing illness to the large majority of the population. If you allowed restaurants, offices and factories to be be open completely as normal, the risk of death really would be almost entirely confined to the elderly and the sick. Which must beg the question, can you not protect those groups without closing all those places?
If you were to open up everything as normal, but exclude those aged over 60 who would remain isolated, there would undoubtedly be a widespread outbreak of coronavirus among the adult population, but with few serious health outcomes. The danger lies almost entirely in spread to the elderly and vulnerable. The danger lies in 35 year old Lisa catching the virus. She might pass it on to her children and their friends, with very few serious ill effects. But she may also pass it on to her 70 year old mum, which could be deadly.
We are reaching the stage where the cumulative effect of lockdown and partial lockdown measures is going to inflict catastrophic damage on the economy. Companies could survive a certain period of inactivity, but are coming to the end of their resilience, of their financial reserves, and of effective government support. Unemployment and bankruptcies are set to soar, with all the human misery and indeed of deleterious health outcomes that will entail.
There is no social institution better designed than schools for passing on a virus. The fact that schools are open is an acknowledgement of the fact that there is no significant danger to children from this virus. Nor is there a significant danger to young adults. University students, the vast, vast majority of them, are not going to be more than mildly ill if they catch coronavirus. There is no more health need for universities to be locked down and teaching virtually, than there would be for schools to do the same. It is a nonsense.
The time has come for a change in policy approach that abandons whole population measures, that abandons closing down sectors of the economy, and concentrates on shielding that plainly defined section of the population which is at risk. With this proviso – shielding must be on a voluntary basis. Elderly or vulnerable people who would prefer to live their lives, and accept that there is currently a heightened risk of dying a bit sooner than might otherwise be expected, must be permitted to do so. The elderly in particular should not be forcefully incarcerated if they do not so wish. To isolate an 88 year old and not allow them to see their family, on the grounds their remaining life would be shortened, is not necessarily the best choice for them. It should be their choice.
To some extent this selective shielding already happens. I know of a number of adults who have put themselves into voluntary lockdown because they live with a vulnerable person, and such people should be assisted as far as possible to work from home and function in their isolation. But in general, proper protection of the vulnerable without general population lockdowns and restrictions would require some government resource and some upheaval.
There could be, for example, a category of care homes created under strict isolation where no visitation is allowed and there are extremely strict firewall measures. Others may have less stringent precautions and allow greater visitation and movement; people should have the choice, and be assisted in moving to the right kind of institution for them. This would involve upheaval and resources, but nothing at all compared to the upheaval being caused and resources lost by unnecessary pan-societal restrictions currently in force. Temporary shielded residential institutions should be created for those younger people whose underlying health conditions put them at particular risk, should they wish to enter them. Special individual arrangements can be put in place. Public resource should not be spared to help.
But beyond those precautions to protect those most in danger, our world should return to full on normal. Ordinary healthy working age people should be allowed to make a living again, to interact socially, to visit their families, to gather together, to enjoy the pub or restaurant. They would be doing so in a time of pandemic, and a small proportion of them would get quite ill for a short while, and a larger proportion would get mildly ill . But that is a part of the human condition. The myth that we can escape disease completely and live forever is a nonsense.
Against this are the arguments that “every death is a tragedy” and “one death is too many”. It is of course true that every death is a tragedy. But in fact we accept a risk of death any time we get in a car or cross a road, or indeed buy meat from the butcher. In the USA, there has been an average of 4.5 amusement park ride fatalities a year for the last 20 years; that is an entirely unnecessary social activity with a slightly increased risk of death. Few seriously want amusement parks closed down.
I genuinely am convinced that for non-geriatric people, the risk of death from Covid-19 is, as the Stanford study suggested, about the same as the risk of death from traffic accident on a daily commute. The idea that people should not commute to work because “any death is a tragedy” is plainly a nonsense.
The problem is that it is a truism of politics that fear works in rendering a population docile, obedient or even grateful to its political leaders. The major restrictions on liberty under the excuse of the “war on terror” proved that, when the statistical risk of death by terrorism has always been extraordinarily small to any individual, far less than the risk of traffic accident. All the passenger security checks that make flying a misery, across the entire world, have never caught a single bomb, anywhere.
Populations terrified of covid-19 applaud, in large majority, mass lockdowns of the economy which have little grounding in logic. The way for a politician to be popular is to impose more severe lockdown measures and tell the population they are being saved, even as the economy crumbles. Conversely, to argue against blanket measures is to invite real hostility. The political bonus is in upping the fear levels, not in calming them.
This is very plain in Scotland, where Nicola Sturgeon has achieved huge popularity by appearing more competent and caring in managing the covid-19 crisis than Boris Johnson – which may be the lowest bar ever set as a measure of political performance, but it would be churlish not to say she has cleared it with style and by a substantial margin.
But when all the political gains are on the side of more blanket lockdowns and ramping up the levels of fear, then the chances of measures tailored and targeted specifically on the vulnerable being adopted are receding. There is also the danger that politicians will wish to keep this political atmosphere going as long as possible. Fear is easy to spread. If you make people wear face masks and tell them never to go closer than 2 metres to another person or they may die, you can throw half the population immediately into irrational hostility towards their neighbours. Strangers are not seen as people but as parcels of disease.
In these circumstances, asking ordinary people to worry about political liberty is not fruitful. But the new five tier measures announced by the Scottish government yesterday were worrying in terms of what they seem to indicate about the permanence of restrictions on the, not really under threat, general population. In introducing the new system, Nicola Sturgeon went all BBC on us and invoked the second world war and the wartime spirit, saying we would eventually get through this. That of course was a six year haul.
But what really worried me was the Scottish government’s new five tier system with restrictions nominated not 1 to 5, but 0 to 4. Zero level restrictions includes gatherings being limited to 8 people indoors or 15 people outdoors – which of course would preclude much political activity. When Julian Assange’s father John was visiting us this week I wished to organise a small vigil for Julian in Glasgow, but was unable to do so because of Covid restrictions. Even at zero level under the Scottish government’s new plans, freedom of assembly – an absolutely fundamental right – will still be abolished and much political activity banned. I cannot see any route to normality here; the truth is, of course, that it is very easy to convince most of the population inspired by fear to turn against those interested in political freedom.
What is in a number? When I tweeted about this, a few government loyalists argued against me that numbering 0 to 4 means nothing and the levels of restriction might equally have been numbered 1 to 5. To which I say, that numbering the tiers of restriction 1 to 5 would have been the natural choice, whereas numbering them 0 to 4 is a highly unusual choice. It can only have been chosen to indicate that 0 is the “normal” level and that normality is henceforth not “No restrictions” but normal is “no public gathering”. When the threat of Covid 19 is deemed to be sufficiently receding we will drop to level zero. If it was intended that after level 1, restrictions would be simply set aside, there would be no level zero. The signal being sent is that level zero is the “new normal” and normal is not no restrictions. It is both sinister and unnecessary.
UPDATE I just posted this reply to a comment that this argument amounts to a “conspiracy theory”. It is an important point so I insert my reply here:
But I am not positing any conspiracy at all. I suspect that it is very easy for politicians to convince themselves that by increasing fear and enforcing fierce restriction, they really are protecting people. It is very easy indeed to genuinely convince yourself of the righteousness of a course which both ostensibly protects the public and gives you a massive personal popularity boost.
It is argued that only Tories are worried about the effect on the economy in the face of a public health pandemic. That is the opposite of the truth. Remarkably, the global lockdowns have coincided with an astonishing rate of increase in the wealth of the richest persons on the planet. That is an effect we are shortly going to see greatly amplified. As tens of thousands of small and medium businesses will be forced into bankruptcy by lockdown measures and economic downturn, their assets and their markets will be snapped up by the vehicles of the super-wealthy.
I am not a covid sceptic. But neither do I approve of fear-mongering. The risk to the large majority of the population is very low indeed, and it is wrong that anybody who states that fact is immediately vilified. The effect of fear on the general population, and the ability of politicians to manipulate that fear to advantage, should not be underestimated as a danger to society.
There has been a substantial increase in human life expectancy over my lifetime and a subsequent distancing from death. That this trend should be permanent, in the face of human over-population, resource exhaustion and climate change, is something we have too readily taken for granted. In the longer term, returning to the familiarity with and acceptance of death that characterised our ancestors, is something to which mankind may need to become re-accustomed.
In the short term, if permanent damage to society is not to be done, then the response needs to be less of an attack on the entire socio-economic structure, and more targeted to the protection of the clearly defined groups at real risk. I greatly dislike those occasions when I feel compelled to write truths which I know will be unpopular, particularly where I expect them to arouse unpleasant vilification rather than just disagreement. This is one of those times. But I write this blog in general to say things I believe need to be said. I am very open to disagreement and to discussion, even if robust, if polite. But this is not the blog to which to come for comfort-reading.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
The security services put an extraordinary amount of media priming effort into explaining why the alleged novichok attack on the Skripals had a delayed effect of several hours, and then failed to kill them. Excuses included that it was a cold day which slowed their metabolisms, that the chemical took a long time to penetrate their skins, that the gel containing the novichok inhibited its operation, that it was a deliberately non-fatal dose, that rain had diluted the novichok on the doorknob, that the Skripals were protected by gloves and possibly only came into contact in taking the gloves off, or that nerve agents are not very deadly and easily treated.
You can take your pick as to which of those convincingly explains why the Skripals apparently swanned round Salisbury for four hours after coming into contact with the novichok coated doorknob, well enough to both drink in a pub and eat a good Italian lunch, before both being instantaneously struck down and disabled at precisely the same time so neither could call for help, despite being different sexes, ages and weights. Just as the chief nurse of the British army happened to walk past.
So now let us fast forward to Alexei Navalny. Traces of “novichok” were allegedly found on a water bottle in his hotel room in Tomsk. That appears to eliminate the cold and the gloves. It also makes it possible he ingested some of the “novichok”. I can find no suggestion anywhere it was contained in a gel. So why was this deadly substance not deadly?
There seems no plain allegation of where Navalny came into contact with the “novichok”. Assuming he spent the night in his hotel room, then the very latest he can have come into contact with the deadly nerve agent would be shortly before he left the room, assuming he then subsequently touched the bottle before leaving. This is true whether the bottle was the source or he just touched it with novichok on his hands. After poisoning with this very deadly nerve agent – which Germany claims is “harder” than other examples, he then checked out of the hotel, went to the airport, checked in for his flight, had a cup of tea and boarded the flight, all before being taken ill. This after contact with a chemical weapon allegedly deadlier than this:
Which of course is aside from all the questions as to why the Russians would use again the poison that was ineffective against the Skripals, and why exactly the FSB would not have swept and cleaned up the hotel room after he had left. All that is even before we get to some of the questions I had already asked:
Further we are expected to believe that, the Russian state having poisoned Navalny, the Russian state then allowed the airplane he was traveling in, on a domestic flight, to divert to another airport, and make an emergency landing, so he could be rushed to hospital. If the Russian secret services had poisoned Navalny at the airport before takeoff as alleged, why would they not insist the plane stick to its original flight plan and let him die on the plane? They would have foreseen what would happen to the plane he was on.
Next, we are supposed to believe that the Russian state, having poisoned Navalny, was not able to contrive his death in the intensive care unit of a Russian state hospital. We are supposed to believe that the evil Russian state was able to falsify all his toxicology tests and prevent doctors telling the truth about his poisoning, but the evil Russian state lacked the power to switch off the ventilator for a few minutes or slip something into his drip. In a Russian state hospital.
Next we are supposed to believe that Putin, having poisoned Navalny with novichok, allowed him to be flown to Germany to be saved, making it certain the novichok would be discovered. And that Putin did this because he was worried Merkel was angry, not realising she might be still more angry when she discovered Putin had poisoned him with novichok
There are a whole stream of utterly unbelievable points there, every single one of which you have to believe to go along with the western narrative. Personally I do not buy a single one of them, but then I am a notorious Russophile traitor.
The eagerness of the Western political establishment to accept and amplify nonsensical Russophobia is very worrying. Fear is a powerful political tool, politicians need an enemy, and still more does the military-industrial complex that so successfully siphons off state money. Many fat livings depend on the notion that Russia poses a serious threat to us. The nonsense people are prepared to believe to maintain that fiction give a most unpleasant glimpse into the human psyche.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
No matter how much you dislike Trump, only a fool can fail to see the implications for public access to information of the massive suppression on the internet of the Hunter Biden leaks.
This blog has been suffering a ratcheting of social media suppression for years, which reached its apogee in my coverage of the Julian Assange trial. As I reported on 24 September:
Even my blog has never been so systematically subject to shadowbanning from Twitter and Facebook as now. Normally about 50% of my blog readers arrive from Twitter and 40% from Facebook. During the trial it has been 3% from Twitter and 9% from Facebook. That is a fall from 90% to 12%. In the February hearings Facebook and Twitter were between them sending me over 200,000 readers a day. Now they are between them sending me 3,000 readers a day. To be plain that is very much less than my normal daily traffic from them just in ordinary times. It is the insidious nature of this censorship that is especially sinister – people believe they have successfully shared my articles on Twitter and Facebook, while those corporations hide from them that in fact it went into nobody’s timeline. My own family have not been getting their notifications of my posts on either platform.
It was not just me: everyone reporting the Assange trial on social media suffered the same effect. Wikileaks, which has 5.6 million Twitter followers, were obtaining about the same number of Twitter “impressions” of their tweets (ie number who saw them) as I was. I spoke with several of the major US independent news sites and they all reported the same.
I have written before about the great danger to internet freedom from the fact that a few massively dominant social media corporations – Facebook, Twitter, Instagram – have become in effect the “gatekeepers” to internet traffic. In the Assange hearing and Hunter Biden cases we see perhaps the first overt use of that coordinated power to control public information worldwide.
The way the power of the “gatekeepers” is used normally is insidious. It is quite deliberately disguised. “Shadow banning” is a term for a technique which has many variations. The net result is always that the post is not ostensibly banned. Some people see it, so that if the subject of the suppression claims to be banned they look stupid. But it is in fact shown to far, far less people than it would normally be. So even members of my own immediate family find that my posts no longer turn up in their timeline on either Facebook or Twitter. But a few followers, presumably at random, do see them. Generally, though not always, those followers are apparently able to retweet or share, but what they are not told is that their retweet or share is in fact put in to very, very few people’s timelines. The overall audience for the Tweet or Facebook post is cut to as little as 1% of what it might be without suppression. As 90% of the traffic to this blog comes in clicks from these social media posts, the effect is massive.
That was the technique used on the Assange hearing. In normal times, the ratchet on traffic can be screwed down or released a little, from week to week or post to post.
In the Hunter Biden case, social media went still further and without disguise simply banned all mention of the Hunter Biden leaks.
What I find deeply reprehensible in all the BBC coverage is their failure to report the facts of the case, and their utter lack of curiosity about why Joe Biden’s son Hunter was paid $60,000 a month by Burisma, Ukraine’s largest natural gas producer, as an entirely absent non-executive director, when he had no relevant experience in Ukraine or gas, and very little business experience, having just been dishonorably discharged from the Navy Reserve for use of crack cocaine? Is that question not just a little bit interesting? That may be the thin end of it – in 2014-15 Hunter Biden received US $850,000 from the intermediary company channeling the payments. In reporting on Trump being potentially impeached for asking about it, might you not expect some analysis – or at least mention – of what he was asking about?
That Hunter Biden received so much money from a company he never once visited or did any legitimate work for, located in a country which remarkably at the same time launched into a US sponsored civil war while his father was Vice President, is a question which might reasonably interest people. This is not “fake news”. There is no doubt whatsoever of the facts. There
is also no doubt that, as Vice President of the USA, Joe Biden secured the firing of the Ukrainian prosecutor who was investigating Burisma for corruption.
The story now is that Hunter Biden abandoned a laptop in a repair shop, and the hard drive contained emails between Hunter and Burisma in which he was asked for, and promised, various assistance to the company from the Vice President. This hard drive was passed to the New York Post. What the emails do not include is any incriminating correspondence between Hunter and his father in which Joe Biden agrees to any of this – which speaks to their authenticity, as that would be the key thing to forge. Given that the hard drive also contains intimate photos and video, there does not seem to be any real doubt about its authenticity.
However both Facebook and Twitter slapped an immediate and total ban on all mention of the Hunter Biden emails, claiming doubts as to its authenticity and an astonishing claim that they never link to leaked material or information about leaked material.
Alert readers will note that this policy was not applied to Donald Trump’s tax returns. These were extremely widely publicised throughout social and mainstream media – and quite right too – despite being illegally leaked. Twitter may be attempting to draw a distinction between a “hack” and a “leak”. This is difficult to do – the Clinton and Podesta emails, for example, were leaked but are frequently claimed to have been hacked.
I am astonished by the online comment of people who consider themselves “liberals” who support the social media suppression of the Hunter Biden story, because they want Trump to be defeated. The truth is that those in control of social media censorship are overwhelmingly Atlanticist figures on the Clinton/Blair political spectrum. That embraces the roles of Nick Clegg and Ben Nimmo at Facebook. It explains the protective attitude of Blairite Wikipedia boss Jimmy Wales (also a director of Guardian Media Group) toward the Philip Cross operation.
Censorship from the self-satisfied centre of the political establishment is still more dangerous, because more stable, than censorship from the left or right. It seeks rigorously to enforce the “Overton window” on social media. It has a “whatever it takes” attitude to getting Joe Biden into the White House and removing a maverick element from the political stability it so prizes. Its hatred of public knowledge is behind the persecution of Assange.
The Establishment’s problem is that inequalities of wealth are now so extreme in Western society, that the attempted removal of access by the public to radical thinking is not protecting a stable society, but is protecting a society tilting towards structural instability, in which the lack of job security and decent conditions and pay for large swathes of the population contrasts vividly with the spectacularly flourishing fortunes of the ultra billionaires. Our society desperately needs thinking outside the box into which the social media gatekeepers are attempting to confine us.
An early part of that thinking out of the box needs to relate to internet architecture and finding a way that the social media gatekeepers can be bypassed – not by a few activists, but by the bulk of the population. We used to say the internet will always find a work-around, and there are optimists who believe that the kind of censorship we saw over Hunter Biden will lead to a flight to alternative platforms, but I don’t see that happening on the scale required. Regulation to prevent censorship is improbable – governments are much more interested in regulation to impose more censorship.
The development of social media gatekeeping of internet traffic is one of the key socio-political issues of our time. We need the original founders of the internet to get together with figures like Richard Stallman and – vitally – Julian Assange – to find a way we break free from this. Ten years ago I would not have thought it a danger that the internet would become a method of political control, not of political freedom. I now worry it is too late to avert the danger.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
In what we think is a world first, the Lord Advocate of Scotland is claiming in the contempt of court case against me that I am legally responsible for the content of replies to my tweets.
The claim is founded on an argument that when you tweet, there is a menu which enables you to hide replies. If you do not hide a reply, you are therefore the publisher of that reply. As the Lord Advocate is putting it:
2. That the Twitter account under profile name @CraigMurrayOrg is operated by the Respondent. When the user of such an account publishes a post on Twitter, there is an option for readers to post publicly available comments in relation to each post and to reply to other readers’ comments. Replies to original posts will appear on the timeline of the author of the original post and on the timeline of the author of the reply. The user of the account who published the original cannot delete comments by others but, since November 2019, has the option to hide replies to their original post.
Note this is a very different argument to the accepted principle that if you publish a defamatory or otherwise illegal tweet, you bear a responsibility for people retweeting or passing on the information.
What the Lord Advocate is saying is that you can post a perfectly legal tweet, but you are responsible for any illegal replies. So if you post “Joe’s Fish and Chips are Great”, and somebody replies “But old Joe is a paedophile”, you become the publisher of the reply and liable in law for it (presumably unless you hide it, but that has not been stated in terms). The Lord Advocate is arguing that the reason that this has not previously been the law is that it is a new situation, with the “hide reply” option only being added in November 2019.
The reason this argument is being made is that the Crown is struggling to prove I published anything illegal myself, but believes a reply to one of my tweets is more obviously illegal.
The situation on Twitter is very different to a blog or media website. This website is mine. It is registered to me, I am the publisher and I accept responsibility for its content. Even there, however, the law on comments is much more nuanced than people realise and I am not generally liable for comments unless there was something in the content of my original post that was illegal or encouraged illegality, given that reasonable arrangements for moderation are in place.
But neither you nor I nor any other user is the publisher of Twitter. There is no sensible view in which you are the publisher of replies to your tweets. Twitter is the publisher of tweets and users are responsible for what they tweet.
The Lord Advocate’s approach would have a massive chilling effect on Twitter and fundamentally change its nature. When you tweet there is an option to limit who can reply. People would be loathe to allow replies at all if they were liable in law for what other people might say. Nobody wants to have to be constantly checking replies to their tweets, including to old tweets, in case somebody – who may be somebody you never heard of – tweeted something illegal.
For good or ill, Twitter has become a major medium of social and political debate. That dialogue would be entirely changed if replies are routinely turned off. What troubles me is that, in stretching for a way to convict me, the Lord Advocate appears completely oblivious to the very wide consequences of this argument for free speech. The Lord Advocate is of course not only Scotland’s chief prosecutor, he is also a member of the Scottish Government, appointed by the First Minister.
I cannot help but put this together with the Hate Crime Bill, which was condemned as an attack on free speech by every reputable body you can possibly imagine, and conclude that Scottish Government has no concern whatsoever for the concept of freedom of speech. It simply does not feature in their internal thinking, and is of no concern unless hammered upon them from outside.
The doctrine that Twitter users are the legal publishers of replies to their tweets has massive implications were it to succeed in court. That it should be recklessly resorted to as part of this vindictive attack on me, shows how deep down the rabbit hole we are going.
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Unlike our adversaries including the Integrity Initiative, the 77th Brigade, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
Numerous people have contacted me in various ways to ask where is my promised report on the final day of the Assange hearing, to complete the account?
It is difficult to explain this to you. When I was in London it was extremely intense. This was my daily routine. I would attend court at 10am, take 25 to 30 pages of handwritten notes, and leave around 5. In court I was always with Julian’s dad John, and usually for lunch too. After court I would thank supporters outside the courtroom, occasionally do some media and often meet with the Wikileaks crew to discuss developments and tactics. I would then get back to my hotel room, have a bite to eat and go to bed around 6.30pm to 7pm. I would awake between 11pm and midnight, shower and shave, read my notes and do any research needed. About 3am I would start to write. I would finish writing around 8.30am and proofread. Then I would get dressed. About 9.30am I would make any last changes and press publish. Then I would walk to the Old Bailey and start again.
Apart from being exhausting, I was totally immersed in a bubble, and buoyed by the support of others close to Julian, who were also inside that bubble.
But in that courtroom, you were in the presence of evil. With a civilised veneer, a pretence at process, and even displays of bonhommie, the entire destruction of a human being was in process. Julian was being destroyed as a person before my eyes. For the crime of publishing the truth. He had to sit there listening to days of calm discussion as to the incredible torture that would await him in a US supermax prison, deprived of all meaningful human contact for years on end, in solitary in a cell just fifty square feet.
Fifty square feet. Mark that out yourself now. Three paces by two. Of all the terrible things I heard, Warden Baird explaining that the single hour a day allowed out of the cell is alone in another, absolutely identical cell called the “recreation cell” was perhaps the most chilling. That and the foul government “expert” Dr Blackwood describing how Julian might be sufficiently medicated and physically deprived of the means of suicide to keep him alive for years of this.
I encountered evil in Uzbekistan when the mother brought me the photos of her son tortured to death by immersion in boiling liquid. The US government was also implicated in that, through the CIA cooperation with the Uzbek Security Services; it happened just outside the US military base at Karshi-Khanabad. Here was that same evil paraded in the centre of London, under the panoply of Crown justice.
Having left the bubble, my courage keeps failing me to return to the evil and write up the last day. I know that sounds either pathetic or precious. I know the mainstream journalists who revel in portraying me as mentally unstable will delight to mock. But this last few days I can’t even bring myself to look at my notes. I feel physically ill when I try. Of course I will complete the series, but I may need a little time.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
It is impossible that both Nicola Sturgeon and Geoff Aberdein are tellng the truth about their meeting on 29 March 2018, which both now say discussed allegations against Alex Salmond.
Geoff Aberdein, Alex Salmond’s former Chief of Staff testified under oath in the Salmond trial that he was contacted in mid-March by phone by Nicola Sturgeon’s office to discuss historic allegations against Alex Salmond, and was asked to a meeting with the First Minister on 29 March. Aberdein testified he was so concerned that he arranged a conference call with Kevin Pringle and Duncan Hamilton QC to discuss this.
By contrast, Sturgeon claims in her evidence to the parliamentary inquiry that the meeting happened by accident, that she had no knowledge it would discuss allegations against Alex Salmond, and subsequently she had entirley forgotten about it; forgetting about it especially when replying repeatedly to parliament, over 18 months, to questioning on when she had first heard of allegations.
As has been reported already, four days earlier – 29 March 2018 – I had spoken with
Geoff Aberdein (former Chief of Staff to Alex Salmond) in my office at the Scottish
Parliament.
Mr Aberdein was in Parliament to see a former colleague and while there came to see
me.
I had forgotten that this encounter had taken place until I was reminded of it in, I think,
late January/early February 2019.
For context, I think the meeting took place not long after the weekly session of FMQs
and in the midst of a busy day in which I would have been dealing with a multitude of
other matters.
However, from what I recall, the discussion covered the fact that Alex Salmond wanted
to see me urgently about a serious matter, and I think it did cover the suggestion that
the matter might relate to allegations of a sexual nature.
Around this time, I had been made aware separately of a request from Mr Aberdein
for me to meet with Alex Salmond.
These two stories are utterly incompatible. Unless we are to believe that Nicola’s office set up a meeting for her without her permission, without telling her the subject, and without subsequently telling her they had set it up. We would also have to believe that Nicola’s private office knew of the allegations for weeks without telling their boss. I can tell you for certain, that is not how the Civil Service works.
The matter is capable of proof. Geoff Aberdein testified he held a conference call with Kevin Pringle and an eminent QC, Duncan Hamilton, ahead of the Sturgeon meeting. Presumably he would have informed Mr Hamilton of the genesis of the meeting to explain why he needed advice. Let the Fabiani inquiry call both Aberdein and Hamilton to give testimony.
It is important to note that if Aberdein is telling the truth – and I was in court when he gave his testimony, which sounded entirely credible – then Nicola Sturgeon’s private office was phoning him about allegations about Salmond weeks before Nicola Sturgeon subsequently claimed to parliament that she first heard anything of all this. Of course, they could have known many months or years before that, but the Aberdein testimony gives us mid-March 2018.
You may, if you wish, choose to believe that Sturgeon’s private office was pursuing these allegations without her knowledge, which must be true if she did not lie to parliament. In which case I have an excellent garden bridge in London to sell you.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
On Saturday a small, socially distanced vigil of 18 people for Julian Assange at Piccadilly Circus was broken up by twice that number of police and one elderly man arrested and taken into custody. The little group of activists have been holding the vigil every week. I had just arrived to thank them and was astonished to see eight police vans and this utterly unnecessary police action. There could not be a clearer example of “Covid legislation” being used to crack down on unrelated, entirely peaceful political dissent.
I was myself questioned by a policeman who asked me where I lived, how long I had been in London and why, what I had been doing at the Assange trial and when I was going back to Edinburgh. (You can see me very briefly at 10mins 30 secs trying to reason with a policeman who was entirely needlessly engaging in macho harassment of a nice older lady).
Later in the evening I had dinner with Kristin Hrafnsson, editor-in-chief of Wikileaks. I returned to my hotel about 11pm, did my ablutions and went to bed. Just after midnight I was awoken by an insistent and extremely loud pounding at the door of my room. I got naked out of bed and groped my way to open the door a chink. A man dressed like the hotel staff (black trousers, white shirt) asked me when I was checking out. I replied in the morning, and pointed out the hotel knew I was leaving the next day. Why was he asking in the middle of the night? The man said “I was asked to find out”. I closed the door and went back to bed.
The next morning I complained in the strongest possible terms, the hotel refunded me one night’s accommodation. The duty manager who did this added “It was not our fault” but said they could not tell me any more about why this had happened.
The person at my door had a native English accent. I had been staying in the hotel over four weeks and I think I know all of the customer facing staff – not a single one of them has a native English accent. I had never seen that man before. This was a four star hotel from a major chain. I suspect “do not get sleeping guests out of bed after midnight to ask them what time they are checking out” is pretty high on their staff training list. I cannot help but in my mind put it together with my encounter with the police earlier that day, and their interest in when I was returning to Edinburgh, but there seems no obvious purpose other than harassment.
The hotel incident may just be in the strange but unexplained category. The busting of the Assange vigil earlier is of a piece with the extraordinary blanking of the hearing by corporate media and the suppression of its reporting on social media. These are dangerous times.
There will be a post later today or tomorrow morning on the last day of the Assange hearing, and a few concluding thoughts. Meantime this is very interesting.
I really do not know how to report Wednesday’s events. Stunning evidence, of extreme quality and interest, was banged out in precis by the lawyers as unnoticed as bags of frozen chips coming off a production line.
The court that had listened to Clair Dobbin spend four hours cross-examining Carey Shenkman on individual phrases of first instance court decisions in tangentially relevant cases, spent four minutes as Noam Chomsky’s brilliant exegesis of the political import of this extradition case was rapidly fired into the court record, without examination, question or placing into the context of the legal arguments about political extradition.
Twenty minutes sufficed for the reading of the “gist” of the astonishing testimony of two witnesses, their identity protected as their lives may be in danger, who stated that the CIA, operating through Sheldon Adelson, planned to kidnap or poison Assange, bugged not only him but his lawyers, and burgled the offices of his Spanish lawyers Baltazar Garzon. This evidence went unchallenged and untested.
The rich and detailed evidence of Patrick Cockburn on Iraq and of Andy Worthington on Afghanistan was, in each case, well worthy of a full day of exposition. I should love at least to have seen both of them in the witness box explaining what to them were the salient points, and adding their personal insights. Instead we got perhaps a sixth of their words read rapidly into the court record. There was much more.
I have noted before, and I hope you have marked my disapproval, that some of the evidence is being edited to remove elements which the US government wish to challenge, and then entered into the court record as uncontested, with just a “gist” read out in court. The witness then does not appear in person. This reduces the process from one of evidence testing in public view to something very different. Wednesday confirmed the acceptance that this “Hearing” is now devolved to an entirely paper exercise. It is in fact no longer a “hearing” at all. You cannot hear a judge reading. Perhaps in future it should be termed not a hearing but an “occasional rustling”, or a “keyboard tapping”. It is an acknowledged, indeed embraced, legal trend in the UK that courts are increasingly paper exercises, as noted by the Supreme Court.
In the past, the general practice was that all the argument and evidence was placed before the court orally, and documents were read out, Lady Hale said.
She added: “The modern practice is quite different. Much more of the argument and evidence is reduced into writing before the hearing takes place. Often, documents are not read out.
“It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material.”
At least twice in the current case, Judge Baraitser has mentioned that the defence gave her three hundred pages of opening argument, and has done so in the context of doubting the need for all this evidence, or at least for lengthy closing arguments which take account of the evidence. She was highly resistant to any exposition by witnesses of their evidence before cross-examination, arguing that their evidence was already in their statements so they did not need to say it. She eventually agreed on a strict limit of just half an hour for witness “orientation”.
However much Lady Hale thinks she is helping by setting down a principle that the documentation must be available, having Patrick Cockburn’s statement online somewhere will never have the impact of him standing in the witness box and expounding on it. What happened on Wednesday was that the whole hearing was collapsed, with both defence and prosecution lawyers hurling hundreds of pages of witness statement at Baraitser’s head, saying: “You look at this. We can get finished tomorrow morning and all have a long weekend to prepare our next cases.”
I was so disappointed by the way the case petered out before my eyes, that the adrenaline which has carried me through must have dried up. Returning to my room at lunchtime for a brief doze, when I tried to get up for the afternoon session I was overcome with dizziness. I eventually managed to walk to the court, despite the world having decided to present itself at a variety of sharp and unusual angles, and everything appearing to be under glaring orange sodium light. The Old Bailey staff – who I should say have been really friendly and helpful to me throughout – very kindly took me up in a lift and through the advocate’s robing room to the public gallery.
I am happy to say that after court two pints of Guinness and a cheese and ham toastie had a substantial restorative effect. Those who have followed these reports will understand how frustrating it was to be deprived of James Lewis asking Noam Chomsky how he can venture an opinion on whether this extradition is politically motivated when he is only a Professor of Linguistics, or whether he has ever published any peer-reviewed articles. To attempt to encapsulate the wealth of information skipped through yesterday is not the work of an evening.
What I shall do for now is give you the eloquent and brief statement by Noam Chomsky on the political nature of Julian Assange’s actions:
I will also give you the breathtaking testimony of “Witness 2”:
A friend last night gave me the cold comfort that I should not worry about the hurried close of these proceedings reducing the public gaze on the evidence and the arguments (and I think there were altogether nine witness statements yesterday), because that public gaze had been extremely limited, as indeed I have been continually explaining. In other words, it makes no difference. I follow that argument, but it goes against some fundamental beliefs and motivations I have about bearing witness, which I shall need to develop further in my own mind.
In the next few days I will try to bring you a synthesis and analysis of all that passed on Wednesday. Now I need to go to court and see the last few dribbles of this case, and exchange last glances of friendship with Julian for some months.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
Tuesday has been another day on which the testimony focused on the extreme inhumane conditions in which Julian Assange would be kept imprisoned in the USA if extradited. The prosecution’s continued tactic of extraordinary aggression towards witnesses who are patently well informed played less well, and there were distinct signs that Judge Baraitser was becoming irritated by this approach. The totality of defence witnesses and the sheer extent of mutual corroboration they provided could not simply be dismissed by the prosecution attempting to characterise all of them as uninformed on a particular detail, still less as all acting in bad faith. To portray one witness as weak may appear justified if they can be shaken, but to attack a succession of patently well-qualified witnesses, on no basis but aggression and unreasoning hostility, becomes quickly unconvincing.
The other point which became glaringly anomalous, in fact quite contrary to natural justice, was the US government’s continued reliance on affidavits from US Assistant Attorney Gordon Kromberg and Board of Prisons psychiatrist Dr Alison Leukefeld. The cross-examinations by the US government of the last four defence witnesses have all relied on precisely the same passages from Kromberg and Leukefeld, and every single one of the defence witnesses has said Leukefeld and Kromberg are wrong as to fact. Yet under US/UK extradition agreements the US government witnesses may not be called and cross-examined. When the defence witnesses are attacked so strongly in cross-examination on the points of disagreement with Kromberg and Leukefeld, it becomes glaringly wrong that Kromberg and Leukefeld may not be similarly cross-examined by the defence on the same points.
Similarly as to process, the only point of any intellectual purchase which the US government’s lawyers have hit upon is the limited direct experience of the witnesses of the H unit of the ADX Supermax prison. This casts in a stark light last week’s objection to the defence introducing further witnesses who have precisely that experience, in response to the affidavits of Kromberg and Leukefeld on these specific points, which were submitted on 20 August and 2 September respectively. The prosecution objected to these witnesses as too late, whereas both were submitted within a month of the testimony to which they were responding. The US government and Baraitser having ruled out witnesses on this very specific new point, their then proceeding to attack the existing defence witnesses on their knowledge of precisely the point on which they refused to hear new evidence, leaves a very bad taste indeed.
The first witness of the day was Maureen Baird, former warden (governor in UK terms) of three US prisons including 2014–16 the Metropolitan Correction Centre (MCC) New York, which houses a major concentration of Special Administrative Measures (SAMs) prisoners pre-trial. She had also attended national courses and training programmes on SAMs and met and discussed with fellow warders and others responsible for them elsewhere, including Florence ADX.
Led through her evidence by Edward Fitzgerald QC, Baird confirmed that she anticipated Assange would be subject to SAMs pre-trial, based on the national security argument and on all the documentation submitted by the US Attorney, and post-trial. SAMs meant being confined to a cell 23–24 hours a day with no communication at all with other prisoners. In MCC the one hour a day outside your cell was spent simply in a different but identical empty cell known as the “recreation cell”. She had put in an exercise bike; otherwise it was unequipped. Recreation was always completely alone.
Prisoners were allowed one phone call a month of 30 minutes, or 2 of 15 minutes, to named and vetted family members. These were monitored by the FBI.
Fitzgerald asked about Kromberg’s assertion that mail was “free-flowing”. Baird said that all mail was screened. This delayed mail typically by two to three months, if it got through at all.
Baird said that the SAMs regime was centrally determined and was the same in all locations. It was decided by the attorney general. Neither the prison warden nor the Board of Prisons itself had the power to moderate the SAMs regime. Fitzgerald said the US government had claimed yesterday it could be varied, and some people under SAMs could even have a cellmate. Baird replied “No, that is not my experience at all”.
Fitzgerald quoted Kromberg as stating that a prisoner could appeal to the case manager and unit manager against the conditions of SAMs. Baird replied that those people “could do nothing”. SAMs was “way above their pay grade”. Kromberg’s description was unrealistic, as was his description of judicial review. All internal procedures would have to be exhausted first, which would take many years and go nowhere. She had never seen any case of SAMs being changed. Similarly, when Fitzgerald put to her that SAMs were imposed for only one year at a time and subject to annual review, Baird replied that she had never heard of any case of their not being renewed. They appeared simply to be rolled over by the Attorney General’s office.
Baird said that in addition to herself applying SAMs at the MCC, she went on national training courses on SAMs and met and discussed experiences with those applying SAMs at other locations, including the Florence, Colorado ADX. SAMs had strong and negative consequences on prisoners’ mental and physical health. These included severe depression, anxiety disorder and weight loss. Baird said she agreed with previous witness Sickler that if convicted Assange could very well face spending the rest of his life imprisoned under SAMs at the Florence ADX. She quoted a former warden of that prison describing it as “not built for humanity”.
Fitzgerald took Baird to Kromberg’s description of a multi-phased programme for release from SAMs. Baird said she recognised none of this in practice. SAMs prisoners could not participate in any group programmes or meet other prisoners in any circumstances. What Kromberg was describing was not a programme but a very limited list of potential small extra privileges, such as one extra phone call a month. Phase 3 involved mingling with other prisoners and Baird said she had never seen it and doubted it really applied: “I don’t know how that happens”.
Fitzgerald asked Baird about Dr Leukefeld’s claim that some prisoners enjoy Florence ADX so much they did not want to leave. Baird said this was a reflection of the extreme anxiety disorders that could affect prisoners. They became scared to leave their highly ordered world.
It was interesting to see how the prosecution would claim that Baird was unqualified. It was very difficult to counter the evidence of a prison warder about the inhumanity of the prison regime. The US government hit on a quite extraordinary attack. They claimed that the prison system was generally pleasant as described by Leukefeld and Kromberg, but that the prisons in which Baird had worked had indeed been bad, but only because Baird was a bad warden.
Here are brief extracts from the US Government’s cross-examination of Baird:
Clair Dobbin Are you independent? Maureen Baird I work for one attorney but also others. Dobbin You appear on a legal website as a consultant – Allan Ellis of San Francisco. Baird I do some consultancy, including with Allan but not exclusively. Dobbin You only work for defendants? Baird Yes. Dobbin It says that the firm handles appeals and post-conviction placing. Baird Yes, I tend to get involved in post-conviction or placing. Dobbin Do you have any experience in sentencing? Baird What kind of sentencing? Dobbin That is what I am asking. Baird I have testified on prison conditions pre-sentence.
This was a much briefer effort than usual to damage the credentials of the witness. After questions on Baird’s exact prison experience, Clair Dobbins moved on to:
Dobbin Do you know the criteria for SAMs? Baird Yes. Dobbin Why do you say it is likely Assange will get SAMs? Kromberg only says it is possible. Baird Kromberg talks about it a very great deal. It is very plainly on the table. Dobbin It is speculative. It can only be decided by the Attorney General as reasonably necessary to prevent the disclosure of national security information. Baird They have made plain they believe Assange to hold further such information. Dobbin You are not in any position to make any judgement. Baird It is my opinion he would be judged to meet that criterion, based on their past decisions. Dobbin How can you say the risk exists he would disclose national security information? Baird He is charged with espionage. They have said he is a continuing risk. Dobbin I am suggesting that is highly speculative and you cannot know. Baird I am judging by what the government have said and the fact they have so much emphasised SAMs. They very definitely fail to say in all this that SAMs will not be applied.
After further discussion on Kromberg’s claims versus Baird’s experience, the US government moved on to the question of the SAMs prisoners under Baird’s care in the MCC.
Dobbin You say they were in solitary confinement. The officers on the unit did not have human contact with the prisoners? Baird They did not speak to inmates. Dobbin Why not? Baird That is not what prison officers do. Dobbin Why not? You were in charge? Baird They just open the small viewing slot in the iron door every half hour and look through. Conversation just did not happen. Dobbin You could encourage that? Baird I could lead by example. But ordering conversation is not something a prison warden does. I did not have that authority. There are unions. If I instructed the prison officers to socialise with the prisoners, they would reply it is not in their job description. Dobbin Oh, come on! You could encourage. Baird On a normal basis, those officers do not talk to inmates. Dobbin Did you tell your staff to? Wouldn’t the first thing you do be to tell your staff to talk? Baird No. That’s not how it works. Dobbin Did you raise your concerns about SAMs with those above you? Baird No. Dobbin Did you raise your concerns with judges? (brief discussion of a specific case ensued) Baird No. Dobbin Did you raise concerns about the conditions of SAM inmates with judges? Baird No. They were a very small part of the prison population I was dealing with. Dobbin So you didn’t encourage staff or raise any concerns? Baird I tried to be fair and compassionate. I talked to the isolation prisoners myself. The fact that other staff did not engage is not uncommon. I do not recall making any complaints or recommendations. Dobbin So these conditions did not cause you any concerns at the time. It is only now? Baird It did cause me concerns. Dobbin What did you do about your concerns at the time? Baird I did not think I had any influence. It was way above me. SAMs are decided by the Attorney General and heads of the intelligence agencies. Dobbin You did not even try.
This was an audacious effort to distract from Baird’s obviously qualified and first-hand evidence of how dreadful and inhuman the regime is, but ultimately a complaint that Baird did not try to modify the terrible system does not really help the government case. In over two hours of cross-examination, Dobbin again and again tried to discredit Baird’s testimony by contrasting it with the evidence of Kromberg and Leukefeld, but this was entirely counter-productive for Dobbin. It served instead to illustrate how very far Kromberg’s and Leukefeld’s assurances were from the description of what really happens from an experienced prison warden.
Baird demolished Dobbin’s insistence on Kromberg’s description of a functioning three-stage programme for removal of SAMs. When it came to Dr Leukefeld’s account of SAMs prisoners being allowed to take part in psychiatric group therapy sessions, Baird involuntarily laughed. She suggested that from where Dr Leukefeld sat “in the central office”, Leukefeld possibly genuinely believed this happened.
The afternoon witness was an attorney, Lindsay Lewis, who represents Abu Hamza, who is held at ADX Florence. The videolink to Lewis had extremely poor sound and from the public gallery I was unable to hear much of her testimony. She said that Hamza, who has both forearms amputated, had been kept in solitary confinement under SAMs in the ADX for almost ten years. His conditions were absolutely inappropriate to his condition. He had no prosthesis sufficient to handle self-care and received no nursing care at all. His bed, toilet and sink were all unadapted and unsuitable to his disability. His other medical conditions including severe diabetes, hypertension and depression were not adequately treated.
Lewis said that the conditions of Hamza’s incarceration directly breached undertakings made by the US government to the UK magistrates’ court and High Court when they made the extradition request. The US had stated his medical needs would be fully assessed, his medical treatment would be adequate, and he was unlikely to be sent to the ADX. None of these had happened.
In cross-examination, Dobbin’s major point was to deny that the assurances given to the British authorities by the US Government at the time of Hamza’s extradition amounted to undertakings. She was also at great pains to emphasise Hamza’s convicted terrorist offences, as though these justified the conditions of his incarceration. But the one thing which struck me most was Lewis’s description of the incident that was used to justify the continued imposition of SAMs on Hamza.
Hamza is allowed to communicate only with two named family members, one of whom is one of his sons. In a letter, Hamza had asked this son to tell his one-year-old grandchild that he loved him. Hamza was charged with an illegal message to a third party (the grandson). This had resulted in extension of the SAMs regime on Hamza, which still continues. In cross-examination, Dobbin was at pains to suggest this “I love you” may have been a coded terrorist message.
The day concluded with a foretaste of excitement to come, as Judge Baraitser agreed to grant witness anonymity to the two UC Global whistleblowers who are to give evidence on UC Global’s spying on Assange in the Ecuadorean Embassy. In making application, Summers gave notice that among the topics to be discussed was the instruction from UC Global’s American clients to consider poisoning or kidnapping Assange. The hidden firearm with filed-off serial numbers discovered in the home of UC Global’s chief executive David Morales, and his relationship to the Head of Security at the Las Vegas Sands complex, were also briefly mooted.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
Today was the worst day for the defence since the start of the trial, as their expert witnesses failed to cope with the sheer aggression of cross-examination by the US Government and found themselves backing away from maintaining propositions they knew to be true. It was uncomfortable viewing.
It was not that the prosecution had in any way changed their very systematic techniques of denigrating and browbeating; in fact the precise prosecution template was once again followed. It goes like this.
undermine academic credentials as not precisely relevant
humiliate by repeated memory test questions of precise phrasing of obscure regulations or definitions
denigrate relevance of practical experience
iterate official positions and challenge witness to say they are expressed by named officials in bad faith
humiliate by asking witness to repeat from memory regulations for expert testimony in UK courts
run though a list of qualifications and government positions relevant to the subject and make witness say one by one they have not held them
claim testimony is biased or worthless because it does not include government assertions at full length.
You will note that none of this has anything to do with the truth of the actual evidence, and to date almost all witnesses have easily, sometimes contemptuously, seen off this intellectually shallow method of attack. But today was another story. The irony was that, when it came to the real subject matter of the evidence, it was obvious to any reasonable person that the prosecution claims of the good conditions in the American Prison service for high profile national security prisoners are just nonsense. But it was a day when the divorce between truth and court process was still plainer than usual. Given the horrific reality this process was disguising, it was a hard day to sit through.
First to give evidence by videolink was Yancey Ellis. An attorney with a doctorate in law, Ellis has been practising for 15 years including five as a US Marine Judge Advocate. He currently practises in Alexandria, Virginia, where he is now private, having formally been a public defender. As such he is very familiar with the Alexandria Detention Centre where Assange would be held pre-trial. This includes visiting clients in the Administrative Segregation, (AdSeg or X block) where high profile and national security prisoners are held.
He testified that pre-trail detention could last many months or even years. Isolation from other prisoners is the purpose of the X block. Prisoners are in tiny cells of approximately 50 square feet, which is under 5 square metres. The bed is a shelf. On a daily basis only one to two hours are allowed outside the cell, into a small area outside at a time when nobody else is there. The second hour was generally available only in the middle of the night, so was not utilised.
Edward Fitzgerald, QC for the defence, asked Ellis whether prisoners in Administrative segregation could associate. Ellis replied “not really”. The purpose of AdSeg was to prevent it. You were never allowed out of your cell at the same time as another AdSeg prisoner. Contrary to the assertions of Gordon Kromberg, it was very difficult to talk through the thick steel doors. You would have to scream at the top of your voice to be heard at all. Ellis had tried it himself to consult with his clients. Communication was only possible if he could find a deputy to open a food flap for him. As prisoners in AdSeg were locked down, the unit was not usually staffed.
Ellis said that AdSeg was solitary confinement, on the definition of more than 22 hours a day alone with no human interaction. In practise, there was no appeal to the judicial authorities on prison conditions. “Courts will defer to the jail on how they house inmates” [which of course mirrors Baraitser’s answers to requests to ameliorate Assange’s periods in solitary confinement and other mistreatment in Belmarsh prison].
Fitzgerald pointed out that the AdSeg regime Ellis described was even without the addition of Special Administrative Measures, which bring additional restrictions. Ellis confirmed none of the clients he represented was subject to SAMs. He confirmed they did get phone access, but only to a service that allowed them to send “pre-recorded phone calls” to relatives. Fitzgerald then asked how this was affected by SAMs, but James Lewis QC objected on the grounds Ellis had said he had no direct knowledge and Baraitser upheld that.
Fitzgerald asked Lewis about provision of medical and psychiatric care. Ellis replied that the Alexandria Detention Centre does not employ a doctor. There were some social work and counselling services available in-house. Medical services were provided by a private firm. It could take several weeks to see a psychiatrist, even in a crisis. Asked about suicide risk, Ellis said prisoners could be made to wear a “special suit” [straitjacket?] and had shoelaces, belt etc. removed.
James Lewis QC then cross-examined for the US government and I think this is best conveyed as dialogue. Again this is slightly condensed and paraphrased. It is not a transcript (it would be illegal for me to take a transcript; no, I don’t know why either).
Lewis You have described US Assistant Attorney Gordon Kromberg’s testimony as “inaccurate or incomplete”. How many prisoners are there currently in Alexandria Detention Centre? Ellis Approximately 300. Lewis You say there are four or six cells in administrative segregation? Ellis Yes, in the H block. Lewis Your info comes from your visits and from prisoners? Ellis Yes. Lewis Have you interviewed the governor? Ellis No. Lewis Have you interviewed the custodial staff? Ellis No. Lewis Have you interviewed the psychiatrists or psychologists? Ellis No. Lewis You have given one side of the story. One side of the picture. Do you agree? Ellis Do I agree there are two sides to every story? Lewis US Marshalls annually inspect the jail. Do you disagree? Ellis I don’t know. Lewis Kromberg says it was inspected on August 5 2019 by US Marshalls and found fully compliant. What do you say? Ellis Alright. Lewis Also the Commonwealth of Virginia inspected July 23-5 2019. There have been no suicides during the current inspection period. Ellis They have a good track record when it comes to completed suicides. Lewis Have you read these reports? Do you know the findings of these reports? You don’t know how prisoners are assessed for different types of housing? Ellis I have frequently asked for assessment reports in individual cases. I have never been given them. Lewis You don’t know that Assange will be placed in Administrative Segregation? Ellis I would bet that he will. Lewis Kromberg has stated that AdSeg prisoners have access to prisoner programmes but you have testified otherwise. But you have never represented federal prisoners, have you? Ellis There is no difference in treatment inside the jail between state and federal prisoners. Lewis Were you asked by the defence to state that AdSeg is solitary confinement? Ellis No. Lewis There is unlimited access to your lawyers. That is not considered in your definition of solitary confinement. Ellis Not unlimited. Lewis AdSeg prisoners have library access? Ellis Rarely. They may be able to go there in their time outside the cell, but only if it can be empty at that time so they do not meet anybody. Lewis You say Assange will be housed in AdSeg on the ground floor. You cannot know that. Ellis National security prisoners are all on the ground floor. The higher floors are for general population. Lewis Your clients in AdSeg were a security risk. Do you know that Assange will be so deemed? Ellis No. Lewis How do you know Assange won’t be kept in the medical wing? Ellis High profile prisoners are not allowed to mix with the general population. Lewis But won’t Mr Assange benefit from a phalanx of lawyers questioning his conditions. Don’t you think his publicity and support will bring better treatment? Ellis I don’t know that will be the effect.
Edward Fitzgerald then re-examined for the defence.
Fitzgerald Your judgements are based on your personal observations? Ellis Yes, and the reports of my clients. Fitzgerald And why do you say Assange will be kept on the H block? Ellis It’s the design of the jail. Nowhere else a long term AdSeg prisoner could be held. Fitzgerald On prisoner programmes, you say they would not be possible if it involved meeting another prisoner? Ellis Yes, and there are no individual programmes.
For the first time in this trial, Baraitser herself now asked a question of the witness. She asked Ellis why he thought Assange would not be held in the general prison population, as he currently was at Belmarsh. Ellis said it was because he was a public figure in a high profile case. Baraitser suggested that in the UK, being a high profile figure did not mean different treatment. Ellis said he was simply recounting the actual practice of the Alexandria jail in such cases.
Baraitser’s intervention was extraordinary given she had heard irrefutable evidence from Dr Blackwood that Assange had been placed into isolation in the medical wing in Belmarsh after somebody took a brief snatch of video of him, to prevent “reputational damage” to the prison. Yes, now she was saying high profile prisoners in the UK are not removed from the general prison population. She seems to have an infallible mental filter for blocking inconvenient information.
Her less subconscious filter was next in evidence, as there was time for a quick procedural judgement before the next witness, on the question of the decision of the prison governor on Julian Assange in the razor blade in the cell case. The record of the hearing on this ran to a minimum of 19 paragraphs, the judgement itself being in paragraph 19. Baraitser had indicated she was minded only to take para 19 as evidence, although the defence said the whole document contained very useful information. I am told that paras 1 to 18 include information on the extraordinary decision to place Julian Assange in solitary confinement disguised as “healthcare”, including the fact Belmarsh chief medic Dr Daly had produced not one of the compulsory monthly medical reports in his five months on the medical wing.
In one of those accommodations I find inexplicable, the defence conceded, without forcing Baraitser to a judgement, that paragraphs 1 to 18 should be ignored and only para 19 accepted as evidence, on the understanding it did establish the existence of the razor blade and thus vindicate Prof Kopelman’s judgement, and showed the charge had merely been dismissed as not timeous.
Yancey Ellis’s cross-examination above reads very well, and he did provide good answers to the prosecution attack. But he sounded rattled and nervous, and the performance was less convincing than it reads. This was to get much worse for the defence.
The next witness was Joel Sickler. He has a Master’s degree in the administration of justice and has worked for forty years in sentencing and advocacy. He is head of an organisation called Justice in Alexandria, Virginia, an expert in prison conditions, and has visited over 50 prisons across the United States. His organisation makes representations to the court on which institutions are suitable for a prisoner. He testified that he had made dozens of visits to the Alexandria Detention Centre.
He testified that in line with policy Assange would be placed in AdSeg due to his involvement in national security issues and concerns he might pass secrets on to other prisoners. He might also be categorised as needing protection from other prisoners and from self-harm. He would have zero to very limited contact with other prisoners. Sickler characterised Kromberg’s claim that inmates could communicate with each other through the steel doors and thick plexiglass windows as “ridiculous”. If SAMs were applied on top, that involved statutory isolation.
Sickler said that his knowledge of post-incarceration conditions at ADX Florence in Colorado came largely from reading reports. He had one client in there who was not subject to SAMs but was still effectively in solitary confinement for twenty years, despite a clean conduct record. Fitzgerald asked about provision of medical and psychiatric care, and Sickler stated that across the federal system he had dozens of clients who had found a way to commit suicide. In ADX specifically, there was a possibility of being transferred to a Federal medical centre in extreme cases.
At the ADX, Assange would be kept in the SSU known as the H block. With or without SAMs, contact with other prisoners would be completely barred. Contact with the outside world would be extraordinarily limited. Any contact permitted with family would be monitored by the FBI. One 15-minute phone call was allowed per month. Post conviction, contact with lawyers was very limited.
Fitzgerald asked how you could appeal against SAMs or other prison conditions. Sickler replied that appealing even over minor administrative matters virtually never succeeds. SAMs can only be varied by the Attorney General. In the prison system generally, Sickler had filed many thousands of requests on prison conditions and perhaps a dozen had succeeded. With SAMs there was effectively no chance. Solitary confinement could be indefinite in ADX – there was no upper limit.
Fitzgerald asked about changes in the prison after the Cunningham Mitigation settlement. Sickler said changes had been nominal. Any real improvement had only affected lower security prisoners. On prison conditions in general “Official statements, public pronouncements are one thing, reality in prison is something else”. The affidavit by Dr Alison Leukefeld for the government looked great on paper but was not the practice. On the other hand, reports by organisations like the Marshall Project exactly matched with his practical experience. Official statistics, like only 3% of federal prisoners having mental health problems, “do not ring true to me”. There was a significant risk Assange would not receive adequate physical and mental healthcare.
Clair Dobbin then rose to cross-examine. Again, I will report this as dialogue.
Dobbin What do you actually do? Do you work for the defence in cases? Sickler Yes, I help identify the appropriate institution for imprisonment and help clients navigate the prison system. Dobbin So prisoner advocacy? Sickler Yes. Dobbin So you only go to prisons to visit those you represent? Sickler Yes. Dobbin So you are not a prison inspector? Sickler No, I am not. Dobbin So you are not an academic? Sickler No, I am not. Dobbin So you are not a psychiatrist? Sickler No, I am not. Dobbin So you are not a researcher? Sickler No, I am not. Dobbin So you are not a doctor? You don’t get to see medical records? Sickler No, I am not. But I retain a medical consultant. I look at medical reports and I initiate conduct reports on a daily basis. Dobbin But you don’t have across the board access? Only in respect of your clients? Sickler That is right. Dobbin But you are not a clinician. You do not have the authority to validate medical opinion? Sickler No, but I employ a medical consultant. Dobbin Is this consultant a clinical psychiatrist? Sickler No. Dobbin Have you represented anybody on SAMs? Sickler No. SAM-like procedures, but not SAMs which can only be ordered by the attorney general. Dobbin But you said clearly in your affidavit that you have SAM clients. Did you put that there because you want to give the impression you have more expertise than you do? Sickler Of course not. Dobbin You have never been to the AdSeg area of Alexandria Detention Centre. So what is your opinion based on? Sickler Information given to me by numerous third parties including my clients, other lawyers and the public defender. Dobbin But did you not think it was important to make plain in your statement this is hearsay? Sickler I didn’t see the distinction as important. Dobbin Did you see the rules governing expert evidence to this court? Sickler Yes. I did not think that was against the rules. Dobbin You have seen Kromberg’s statement. Do you accept there may be legitimate reasons for Assange to be in AdSeg? Sickler Absolutely. Dobbin Prisoners in protective custody receive all the same services and rights as other prisoners? Sickler Of course. Dobbin Do you agree that he would be able to attend programmes with other prisoners? Sickler Not if under SAMs. Dobbin Do you agree that those in protective custody can meet with other prisoners? Sickler Certainly. Dobbin Do you agree there are no restrictions on access to lawyers? Sickler Absolutely, there is a constitutional right. Dobbin Do you agree that SAMs can only be imposed by the Attorney General? Sickler Yes. Dobbin What is the procedure for that? Sickler It involves consulting the intelligence agencies. Dobbin It needs the certification of one of the heads of one of the security agencies that the prisoner is a threat to the United States? Sickler Yes. Dobbin You cannot know that Assange will get SAMs. And SAMs differ from person to person. Sickler Yes, correct. Dobbin In the case of convicted terrorist El-Haj, he was under SAMs but still allowed access to family members? Sickler Yes, his immediate family. Dobbin Provisions depend on the individual prisoner? Sickler Yes. Dobbin The judge who convicted [another prisoner not heard clearly] entered the MMC personally to check on prison conditions. Does that not show there is good judicial supervision? Sickler I have seen it, on rare occasions. Dobbin SAMS does not restrict access to lawyers. Sickler How do you access lawyers in Florida ADX? And pre-trial there are scheduling difficulties. If he is under SAMs his lawyer will himself be subject to surveillance. Dobbin What evidence do you have for that? Sickler The Lynne Stewart case. Lindsay Lewis. Dobbin Lynne Stewart was running a message for jihadists (she added much alleged detail). Her client was subject to SAMs to prevent him running a terrorist organisation. Sickler The case, and others, had a chilling effect on the willingness of lawyers to take on SAM cases involving national security. Dobbin The Alexandria Detention Centre is not overcrowded Sickler No, it’s below capacity. It is a well-run jail. The staff are very professional. Dobbin Kromberg sets out very substantial medical staffing levels. Sickler I understand those are mostly private contractors, not prison staff. In practice prisoner needs are not meaningfully met. It takes a few days to a few weeks to get treatment. Dobbin But they do get sufficient treatment? Sickler There is no real psychiatric intervention. This is not top tier. Usually prisoners are just medicated. Dobbin So they have access to medication? And someone to talk to? Sickler Correct. Dobbin Your evidence only refers to one suicide, at the Metropolitan Correctional Centre. Sickler That is just one example, one of my current cases. Dobbin But two prison officers have been charged for that. Sickler We are always swift to blame a little man. Dobbin It was not the protocols that were wrong, just two people did not do their job. [This is possibly the Epstein case.] The ADC has a good record on suicide. Sickler It is a very very arduous, almost torturous system of confinement in AdSeg. Assange has depression and is on the autism spectrum. It will be unbearable for him. Even with healthy clients of mine, there has been a terrifying deterioration in these conditions. Dobbin The evidence is they are successful in preventing suicide at the ADC. Sickler Yes, they have a stellar record. Dobbin In the Babar Ahmad case (2012), the European Court of Human Rights considered SAMs and ruled it was not an unacceptable regime. Has anything changed since 2012? Sickler Not significantly. Dobbin You initially said in your report Assange might not be sent to ADX. Now you change your mind. Sentencing is at the discretion of the judge. There is no basis for your report. Sickler I changed my mind in the intervening period. From the second superseding indictment, the charge is now espionage and the government alleges Assange is a continuing threat to the USA. Dobbin You were a consultant in the Reality Winner case. She only got 53 months. Sickler She was a qualitatively different kind of defendant. Dobbin She was an insider. They normally get harsher sentences. She is serving her sentence in a medical facility. Sickler Not on medical grounds. It is the closest federal incarceration facility to her family. Dobbin You say Assange would be in solitary confinement. But Kromberg states that most inmates in special housing are in double cells with a cell-mate. Sickler That can be worse. Many are violent and mentally unwell. Assaults by cellmates are frequent.
There followed an interchange where Dobbin tried to trip up Sickler over the procedures for committing someone to ADX Florida, but he proved knowledgeable in detail.
Dobbin The procedures say that prisoners with health conditions will not be sent to the ADX unless there are serious security concerns. Sickler Abu Hamza is there and he has no arms. Dobbin There are just 14 people in ADX in this category. You have not been there. How do you get your information? Sickler Reports including the Lowenstein Center and the Center for Constitutional Rights Dobbin Prisoners at ADX do get family visits. Sickler How often would Mr Assange get family visits? Why don’t you tell the court? Dobbin [name not heard] a convicted terrorist who attempted to blow up a plane is in ADX and gets family visits and phone calls. Sickler He is allowed communication with two named family members. But how often is he allowed to call or see them? Dobbin You have said solitary confinement at the ADX can be indefinite? Sickler That’s my impression. Dobbin What is your source of information? Sickler It’s from prisoners and lawyers. It’s anecdotal, I admit. But are you saying at some point the US government will decide that Assange won’t be likely to divulge classified information? Dobbin Do you understand that there are three levels in the H block that defendants can work themselves through to get out? Sickler No. Dobbin Did you know that even in SAMs, prisoners can mingle together for social periods? Sickler No, I did not. Dobbin (Quotes ECHR judgement endorsing the stepdown programme) Sickler You have to be within 2 years of release. If you are designated by the Attorney General for SAMs, you are not eligible for that programme. Conditions in the ADX are extraordinarily arduous. Dobbin Kromberg sets out the stages and says that stage 3 allows contact with other prisoners
Sickler It sounds awful. Even when you reach phase 3 with the extra privileges. If they do that in practice, well that’s wonderful. It still sounds awful to me. Dobbin There is a progression. Sickler I should like to know how long it takes. Dobbin Do you know the numbers who have come out of the ADX? Shouldn’t you know these facts? Sickler The place is torturous. That is not in dispute. Dobbin How inmates are treated will depend on how big a security risk they are. Sickler Precisely. Dobbin Medical care at the ADX is not affected by SAMs. Sickler OK. Dobbin Do you agree that as a result of the Cunningham Settlement there has been a substantial improvement? Sickler I cannot say. Dobbin Gordon Kromberg testifies that ADX Colorado has more mental health provision per inmate than any other federal prison. Sickler That is needed because of the extreme circumstances people are kept in. Dobbin Does that not indicate to you that the standard of care is good? Sickler Is there meaningful patient/clinician interaction? I don’t know. Dobbin The Cunningham Settlement led to over 100 people being removed from ADX. Sickler But how many had SAMs? Dobbin We have established that you don’t know anything about the movement out of people with SAMs. Sickler Yes, you have established that. Dobbin As a result of the Cunningham Mitigation two new mental institutions were established. Sickler Yes, for schizophrenia and psychoses. Dobbin A Department of Corrections report of 2014 shows that some inmates never want to leave ADX as they find the standard of care so good. They re-offend to get back in. Sickler They cherry-pick whom they speak to. Most prisoners are desperate to get out. Dobbin Every report gets an official response from the Board of Prisons and policies are constantly upgraded. Sickler Yes, but I just don’t see results in practice. I had one client recently, a prisoner, who rather than being treated was beaten up and thrown naked in the hole. It took months before a court got him out. Another was refused his diagnosed and prescribed medicines as not in the BoP formulary. Dobbin In the first case there was judicial review. So the system works. Sickler After six months.
There was more of this. The cross-examination lasted two and a half hours. Again, it seems much more convincing from Sickler written down than it did live, where he appeared shaken by the aggression. The answers he gave which sound like firm responses, sounded petulant and throwaway when he delivered them. He gave the impression that it was not worth his time to engage with the unreasonable Dobbin and, while I heartily sympathise, that was not the requirement of the moment.
Sickler very definitely gave the impression he was at times agreeing with the prosecutor just because that was the easier line of action. He often did so in a voice that suggested scepticism, sarcasm or mockery, but that was not plain in his words and will not be apparent in the transcript. In normal life, making short sarcastic responses like “Oh yes, it’s marvellous” in reply to ludicrous assertions by the prosecution about the provision of US supermax prisons, may work as a form of ridicule; in a court setting it does not work at all. In fairness to Mr Sickler, being at home rather than actually in a court session will partly account for it. But the court record will say Sickler says prisoner provision in US supermax prisons is marvellous. It doesn’t note sarcasm.
Dobbin is officious beyond the point of offensive; she comes over as properly obnoxious as a person.
The unpleasant irony in all this is that both Sickler and Ellis were mocked and scorned for their lack of personal knowledge of ADX Colorado, when prosecution and judge had combined just on Friday to bar two witnesses who the defence both wished to testify, who had expert personal experience of ADX Florence. That is yet another striking example of the fact that this process is divorced from any genuine attempt to find truth or justice.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
It is hard to believe, but Judge Baraitser on Friday ruled that there will be no closing speeches in the Assange extradition hearing. She accepted the proposal initially put forward by counsel for the US government, that closing arguments should simply be submitted in writing and without an oral hearing. This was accepted by the defence, as they need time to address the new superseding indictment in the closing arguments, and Baraitser was not willing for oral argument to take place later than 8 October. By agreeing to written arguments only, the defence gained a further three weeks to put together the closing of their case.
But this entire hearing has been conducted in effective secrecy, a comprehensive secrecy that gives sharp insight into the politico-economic structures of current western society. Physical access to the courtroom has been extremely limited, with the public gallery cut to five people. Video link access has similarly been extremely limited, with 40 NGOs having their access cut by the judge from day 1 at the Old Bailey, including Amnesty International, PEN, Reporters without Borders and observers from the European Parliament, among many others. The state and corporate media have virtually blacked out this hearing, with a truly worrying unanimity, and despite the implications of the case for media freedom. Finally, the corporations that act as internet gatekeepers have heavily suppressed social media posts about Assange, and traffic to those few websites which are reporting.
I am reminded of the words of another friend of mine, Harold Pinter, in accepting the Nobel Prize for Literature. It seems perfectly to fit the trial of Julian Assange:
It never happened. Nothing ever happened. Even while it was happening it wasn’t happening. It didn’t matter. It was of no interest. The crimes of the United States have been systematic, constant, vicious, remorseless, but very few people have actually talked about them. You have to hand it to America. It has exercised a quite clinical manipulation of power worldwide while masquerading as a force for universal good. It’s a brilliant, even witty, highly successful act of hypnosis.
Harold sent me a copy of that speech printed for the ceremony, with a kind dedication that I knew was by then painful for him to write as lines of ink shot uncontrollably across the page. After he died, I had it framed and it hangs on my study wall. That was a mistake. When I get back home to Edinburgh, I will break the frame and get the pamphlet out. It needs to be read, often.
The closing arguments are the part of any trial which the media is most likely to report. They sum up all the evidence heard on both sides and what might be drawn from the evidence. To have these simply submitted on paper, without the drama of the courtroom, is to ensure that the hearing will continue to be a media non-event.
The timetable which has been accepted is that the defence will lodge their closing arguments in writing on 30 October, the prosecution will reply on 13 November, with the defence able to make a further response by 20 November purely on any legal questions; Baraitser will then deliver her judgement in January. She made plain that she would not accept any further submissions based on developments in the interim, including the US Presidential election.
Friday was yet another day when the process was as important to the result as the evidence heard, if not more so. The day had started with discussion over a defence attempt to submit two new statements from two new witnesses. Both were psychiatrists with expert knowledge of the US prison system. Previous witnesses, both psychiatrists and US attorneys, who had testified for the defence had been criticised by the prosecution as not having direct knowledge of the specific prison, ADX Florence, Colorado, in which Julian would serve his sentence if convicted.
The prosecution had provided two affidavits on conditions in the prison, one from US Assistant Attorney Gordon Kromberg dated 20 August 2020 and one from a prison psychiatrist named Leukefeld dated 3 September 2020. Now it is a very strange feature indeed of these extradition hearings that the defence have no right to cross-examine witnesses who are US federal employees. Gordon Kromberg has submitted five separate affidavits, containing much which is disputed hotly as to fact, but he cannot be cross-examined. Nor may Leukefeld be cross-examined.
Fitzgerald made the point that the defence had to respond to this prosecution evidence somehow, as it could not be cross-examined. He stated that as it had been submitted by the prosecution with the last four weeks, it had taken the defence a little time to find expert witnesses who were in a position to contradict, and then to take their evidence. The defence now had two excellent witnesses with personal knowledge of ADX Florence, and wished to enter their evidence. The defence accepted that because Baraitser had stated the trial will end next week, there would not be time to cross-examine these new witnesses. But then, the prosecution witnesses could not be cross-examined either. As Fitzgerald put it “the prosecution do not have a divine right to cross-examine our witnesses when we do not have any right to cross-examine their witnesses.”
For the US government, James Lewis QC “strongly objected” to this new evidence being submitted. He said the defence had more than a year to prepare these statements and kept trying to prolong the hearing. He said that the defence witnesses did not have the authority of the US government witnesses, and they needed to be cross-examined because many of the defence “experts” were not really expert at all. If these witnesses were called, he would insist on the right to cross-examine and that would extend the hearing.
Having heard the lawyers, Judge Baraitser yet again read out a ruling from her laptop which had been written before she heard either Lewis or Fitzgerald speak. Entirely predictably, she ruled that the defence statements were not admissible, as being too late. The defence “had had a fair opportunity to investigate”. Defence witnesses must be liable to cross-examination. These proceedings had lasted too long already and there must be an end to new evidence. “As a matter of fairness a line must be drawn”, she intoned. She seemed particularly pre-occupied with the notion of “fairness”, which apparently almost always entails ruling against the defence.
For the first time in the course of these hearings, Baraitser did look up briefly from her pre-prepared judgement to insert a reference to something Fitzgerald had said in court, that one possible approach might be that the new defence evidence could simply be cited as though it were an academic article. But only to dismiss it.
So, no closing speeches and two key witnesses not admitted.
We then moved on to the next leg of this very peculiar procedure, in which “case management” always trumps justice, with another defence evidence statement of which an agreed “gist” is simply read into the record, with no cross-examination. Under this procedure, which Baraitser expressly initiated to save time, where the defence will agree, witness statements are whittled down simply to those facts which are uncontested, and a “gist” or edit of that edit is read out, with the whole redacted statement entered into the court record.
The defence have allowed themselves to be too easily browbeaten into submission on all of this “time saving”, which is of course pursued by the judge and the US government in the interests of having as little embarrassing information aired in public as possible, and closing down the hearing quickly. One consequence of the rather hangdog defence approach to this is that, after the first very effective reading of key passages from el-Masri’s evidence, subsequent “gists” read into the record have been raced through, as though the defence realise this evidence has been reduced to a pointless formality, with no expression or weight in the reading and at a speed that far exceeds my ability to take an accurate note.
Like Thursday’s evidence from John Young of Cryptome, the witness statement of Jakob Augstein was important evidence that went to the fact that it was not Assange or Wikileaks who first published the unredacted material, and Augstein added additional information that Assange had tried to prevent it. Before Der Freitag had published its article of 25 August 2011, which revealed that both the password key and the file were out there, Assange had telephoned Augstein, editor of Der Freitag:
This evidence negates the main thrust of the prosecution case, so much so that I cannot understand why the defence have agreed to having it slipped into the record in a manner nobody notices.
The other interesting point about Augstein’s evidence is that it pointed squarely at the possibility that it has been Daniel Domscheit-Berg who, in defecting from Wikileaks, had been responsible for the emergence of the encrypted but unredacted cache on the net.
We then came on to the only witness who was actually heard in person on Friday, Patrick Eller, by videolink from the States. He was to address the accusation that Assange conspired with Chelsea Manning to crack a hash key password and obtain the documents which Manning leaked, and/or to help Manning cover her tracks. Securing Eller was rather a coup for the defence as there could not be a better expert witness on this particular subject. Eller is CEO of Metadata Forensics and a Professor teaching forensic evidence at the US Army Law School. A 25 year veteran, he was commander of the US Army digital forensic investigations unit at US Army Criminal Investigation Command in Virginia.
I am not going to use my usual technique of reporting through Eller’s evidence and cross-examination chronologically, because the subject matter does not lend itself to that, being both highly technical and delivered in a very disjointed fashion. This was partly due to the approach by James Lewis QC, counsel for the US government, who adopted a policy of asking long runs of technical questions about the operation of the computer systems, most of which were basic, irrelevant, and both required and got the simple answer “yes”, and then after a run of a dozen to twenty “yeses”, Lewis would throw in a more dubious proposition. This did once work when he got a “yes” to the proposition that “a great hacker can crack a great cypher” by this system of inducing impulsive repetition of “yes”. Lewis went on to claim that Assange had once self-described as “a fantastic hacker”.
I am not attempting to hide the fact that there were passages of Eller’s testimony in court which I simply did not understand. When I get a new laptop, it takes me days to work out how to turn it on and I am yet to find how to transfer any information from an old one. There are very definitely readers who would have done a much better job than me of reporting this, but then I was there and you were not. So these, for me, were the key points of Eller’s evidence.
With respect to the Jabber conversations between Chelsea Manning and “Nathaniel Frank”, which form the basis of the charge of aiding the commission of computer intrusion, there is no forensic evidence that “Nathaniel Frank” is Julian Assange, or indeed any single individual.
The “Hash key”, or encrypted half of a password, which Manning had requested assistance with cracking could not have been cracked with the technology available in 2010. It was “impossible” and “computationally infeasible”, according to Eller. This could not have been done with a brute force attack, dictionary attack or rainbow table. In cross-examination Lewis explored this at great length and read from a 2009 article on a vulnerability in Windows XP precisely with regard to the hash key system. Eller replied this was well known, but Microsoft had fixed it with a patch well before the events in question. That made it in practice impossible for the code to be cracked using one half of the hash key. Lewis did not query this and quickly moved on; it appeared he knew of the patch all along.
Perhaps Eller’s most telling evidence was that Manning had in fact already downloaded the bulk of the material passed to the Wikileaks dropbox before initiating the conversation with Frank at all. Manning had full access to the SIPRnet, or classified infranet of material up to secret, under her own username, and had already been downloading using a program called wget. Furthermore, Manning had already been taking steps to protect her identity by rebooting from a Linux CD thus evading several Windows security features. That would have been at least as effective as downloading from the FTP account if preventing detection were the goal.
Manning therefore had no need of help from “Nathaniel Frank”, either to obtain the classified documents or to cover her tracks, although the problem of downloads being traceable to the IP address would remain. But this would not have been solved anyway by Manning’s interest in logging in to a File Transfer Protocol account. There was much discussion as to whether the FTP account would or would not have admin privileges, but as Eller was insistent it would neither have increased her access to classified material nor have better enabled her to cover her tracks, and that they could not have cracked the password with the hash key half anyway, I did not quite understand where that discussion was leading.
One particularly jolting bit of information from Eller was that the SIPRnet from which Manning had downloaded all the material was open to “millions” of users. Eller’s final key point was that all of his evidence was consistent with the findings of the prosecution at Manning’s court martial, and presumably thus with the investigations of his old forensic team. Some of the lines taken by Lewis – including that it was in fact possible to crack the password from the half hash key – are inconsistent with the US prosecution’s own forensic evidence at the Manning court martial.
Eller’s evidence is an example of those occasions where I know the comments below the line will be much more informed than my own efforts!
Finally and ominously, Baraitser heard arguments on whether the full medical records of Assange from the doctors and psychiatrists who had given evidence should their public be released to the media. They have been requested by the press. The records contain a huge amount of background and many intimate details of Julian’s childhood and relationships which are in evidence but were not given in open court by the doctors. Both defence and prosecution opposed release, but Baraitser kept referring to “open justice”. You will remember that earlier this year, Baraitser decided that it was in the interests of “open justice” to release to the media the identity of Julian’s partner Stella Moris and her children. That too was against the wishes of both prosecution and defence.
That a judge so intent on shutting down or refusing to hear defence evidence is suddenly so preoccupied with “open justice” when it comes to hurting Assange by release of his deeply personal information, is a great irony. Baraitser will rule on this on Monday and I hope humanity has prevailed with her.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
During the hearing of medical evidence the last three days, the British government has been caught twice directly telling important lies about events in Belmarsh prison, each lie proven by documentary evidence. The common factor has been the medical records kept by Dr Daly, head of the jail’s medical services. There has also been, to put it at its very lightest, one apparent misrepresentation by Dr Daly. Personally, I am wary of the kind of person who impresses Ross Kemp.
Here is a still of Dr Daly from Ross Kemp’s documentary on Belmarsh prison.
This is Mr Kemp’s description of the medical wing at Belmarsh: “Security is on another level here with six times more staff per inmate than the rest of the jail.”
While in the medical wing or “healthcare”, Julian Assange was in effect in solitary confinement, and three psychiatrists and a physician with extensive experience of treating trauma have all testified in court that Assange’s mental and physical condition deteriorated while he was in “healthcare” for several months. They also said he improved after he left “healthcare”. That says something profound about the “healthcare” being provided. The same doctors testified that Assange has a poor relationship with Dr Daly and will not confide his symptoms or feelings to her, and this has also been asserted by defence council.
That is all essential background to the lies. Now let me come to the lies. Unfortunately to do so I must reveal details of Julian’s medical condition which I had withheld, but I think the situation is so serious I must now do that.
I did not report that Professor Michael Kopelman gave evidence that, among other preparations for suicide, Julian Assange had hidden a razor blade in his folded underwear, but this had been discovered in a search of his cell. As I did report, Kopelman was subjected to an extremely aggressive cross-examination by James Lewis, which in the morning had focused on the notion that Julian Assange’s mental illness was simply malingering, and that Kopelman had failed to detect this. The razor blade was a key factor in Lewis’s browbeating of Kopelman, and he attacked him on it again and again and again.
Lewis stated that Kopelman “relied on” the razor blade story for his diagnosis. He then proceeded to portray it as a fantasy concocted by Assange to support his malingering. Lewis asked Kopelman repeatedly why, if the story were true, it was not in Dr Daly’s clinical notes? Surely if a prisoner, known to be depressive, had a razor blade found in his cell, it would be in the prison medical records? Why had Prof Kopelman failed to note in his report that there was no evidence for the razor blade in Dr Daly’s medical records? Was he hiding that information? Was it not very strange that this incident would not be in the medical notes?
In an attempt to humiliate Kopelman, Lewis said
“You say you do not rely on the razor blade for your diagnosis. But you do rely on it. Let us then look at your report. You rely on the razor blade at paragraph 8. You mention it again at paragraph 11a. Then 11c. Then paragraph 14, paragraph 16, 17b, 18a. Then we come to the next section and the razor blade is there at paragraph 27 and 28. Then again in the summary it is at paragraphs 36 and again at paragraph 38. So tell me Professor, how can you say that you do not rely on the razor blade?”
[I do not give the actual paragraph numbers; these are illustrative].
Lewis then went on to invite Kopelman to change his diagnosis. He asked him more than once if his diagnosis would be different if there was no razor blade and it were an invention by Assange. Kopelman was plainly unnerved by this attack. He agreed it was “very odd indeed” it was not mentioned in the medical notes if it were true. The plain attack that he had naively believed an obvious lie disconcerted Kopelman.
Except it was Lewis who was not telling the truth. There really was a concealed razor blade, and what Assange had told Kopelman, and what Kopelman had believed, was true in every single detail. In a scene straight out of a TV legal drama, during Kopelman’s testimony, the defence had managed to obtain the charge sheet from Belmarsh Prison – Assange had been charged with the offence of the razor blade. The charge sheet is dated 09.00 on 7 May 2019, and this is what it reads:
Governor,
On the 05/05/19 at approximately 15.30, myself and Officer Carroll were conducting a routine matrix search in 2-1-37 solely occupied by Mr Assange A9379AY. He was asked before we began the search if everything in the cell belonged to him, to which he replied “To my knowledge yes”. During the process of this search I lifted a pair of his personal underwear up whilst searching the cupboard. When I lifted them I heard a metal object drop inside the cupboard. When I investigated what it was I saw half of a razor blade which had been concealed in his personal underwear. This had now been placed in evidence bag number M0001094.
This concludes my report
Signed
Off Locke
I was later shown a copy and got a quick shot:
When on Tuesday Edward Fitzgerald QC produced this charge sheet in court, it did not appear to be news to the prosecution. James Lewis QC panicked. Rather too quickly, Lewis leapt to his feet and asked the judge that it should be noted that he had never said that there was no razor blade. Fitzgerald responded that was not the impression that had been given. From the witness box and under oath, Kopelman stated that was not the impression he had been given either.
And it was most certainly not the impression I had been given in the public gallery. In repeatedly asserting that, if the razor blade existed, it would be in the medical notes, Lewis had, at the very least, misled the witness on a material question of fact, that had actually affected his evidence. And Lewis had done so precisely in order to affect the evidence.
Panicking, Lewis then gave the game away further by making the desperate assertion that the charge against Mr Assange had been dismissed by the Governor. So the prosecution definitely knew rather more about the events around the razor blade than the defence.
Baraitser, who was aware that this was a major car crash, grasped at the same straw Lewis was clinging to in desperation, and said that if the charge had been dismissed, then there was no proof the razor blade existed. Fitzgerald pointed out this was absurd. The charge may have been dismissed for numerous reasons. The existence of the blade was not in doubt. Julian Assange had attested to it and two prison warders had attested to it. Baraitser said that she could only base her view on the decision of the Prison Governor.
However Baraitser may try to hide it, Lewis attacked Prof Kopelman over the existence of the blade when Lewis gave every appearance afterwards of a man who knew full well all along that there was compelling evidence the blade did exist. For Baraitser to try to protect both Lewis and the prosecution by pretending the existence of the blade is dependent on the outcome of the subsequent charge, when all three people in the cell at the time of the search agreed to its existence, including Assange, is perhaps Baraitser’s most remarkable abuse of legal procedure yet.
After his evidence, I went for a gin and tonic with Professor Kopelman, who is an old friend. We had no contact at all for two years, precisely because of his involvement in the Assange case as a medical expert. Michael was very worried he had not performed strongly in his evidence session in the morning, though he had been able to answer more clearly in the afternoon. And his concern about the morning was because he had been put off by the razor blade question. He had firmly understood Lewis to be saying that there was no razor blade in prison records and Michael had therefore been deceived by Julian. If he had been deceived, it of course would have been a professional failing and Lewis had successfully caused him anxiety while in the witness box.
I should make plain I do not believe for one moment the government side were not aware all along the razor blade was real. Lewis cross-examined using detailed prepared notes on the razor blade and with all the references to it tabulated in Kopelman’s report. That this was undertaken by the prosecution without asking the prison if the incident were true, defies common sense.
On Thursday Edward Fitzgerald handed the record of the prison hearing where the charge was discussed to Baraitser. It was a long document. The Governor’s decision was at paragraph 19. Baraitser told Fitzgerald she could not accept the document as it was new evidence. Fitzgerald told her she had herself asked for the outcome of the charge. He said the document contained very interesting information. Baraitser said that the Governor’s decision was at paragraph 19, that was all she had asked for, and she would refuse to take the rest of the document into consideration. Fitzgerald said the defence may wish to make a formal submission on that.
I have not seen this document. Based on Baraitser’s earlier pronouncements, I am fairly certain she is protecting Lewis in this way. At para 19 the Governor’s decision probably dismisses the charges as Lewis said. But the earlier paras, which Baraitser refuses to consider, almost certainly make plain that Assange’s possession of the razor blade was undisputed, and very probably explains his intention to use it for suicide.
So, to quote Lewis himself, why would this not be in Dr Daly’s medical notes?
Even that startling story I did not consider sufficiently powerful to justify publishing the alarming personal details about Julian. But then it happened again.
On Thursday morning, Dr Nigel Blackwood, Reader in Forensic Psychiatry at Kings College London, gave evidence for the prosecution. He essentially downplayed all of Julian’s diagnoses of mental illness, and disputed he had Asperger’s. In the course of this downplaying, he stated that when Julian had been admitted to the healthcare wing on 18 April 2019, it had not been for any medical reason. It had been purely to isolate him from other prisoners because of the video footage of him that had been taken and released by a prisoner.
Fitzgerald asked Blackwood how he knew this, and Blackwood said Dr Daly had told him for his report. The defence now produced another document from the prison that showed the government was lying. It was a report from prison staff dated 2.30pm on 18 April 2019 and specifically said that Julian was “very low” and having uncontrollable suicidal urges. It suggested moving him to the medical wing and mentioned a meeting with Dr Daly. Julian was in fact then moved that very same day.
Fitzgerald put it to Blackwood that plainly Assange was moved to the medical wing for medical reasons. His evidence was wrong. Blackwood continued to assert Assange was moved only because of the video. Dr Daly’s medical notes did not say he was moved for medical reasons. The judge pulled up Fitzgerald for saying “nonsense”, although she had allowed Lewis to be much harder than that on defence witnesses. Fitzgerald asked Blackwood why Assange would be moved to the medical wing because of a video taken by another prisoner? Blackwood said the Governor had found the video “embarrassing” and was concerned about “reputational damage” to the prison.
So let us look at this. Dr Daly did not put in the medical notes that Assange had concealed a razor for suicide in his cell. Dr Daly did not put in the medical notes that, on the very day Assange was moved to the medical wing, a staff meeting had said he should be moved to the medical wing for uncontrollable suicidal urges. Then Daly gives Blackwood a cock and bull story on reasons for Assange’s removal to the medical wing, to assist him in his downplaying of Assange’s medical condition.
Or let us look at the alternative story. The official story is that Healthcare – to quote Ross Kemp where “security is on another level” – is used for solitary confinement, to hold prisoners in isolation for entirely non-medical reasons. Indeed, to avoid “embarrassment”, to avoid “reputational damage”, Assange was kept in isolation in “healthcare” for months while, according to four doctors including on this point even Blackwood, his health deteriorated because of the isolation. While under Dr Daly’s “care”. And that one is the official story. The best they can come up with is “he was not sick, we put him in “Healthcare” for entirely illegitimate reasons as a punishment.” To avoid “embarrassment” if prisoners took his photo.
I am going to write to Judge Baraitser applying for a copy of the transcript of Lewis cross-examining Professor Kopelman on the razor blade, with a view to reporting Lewis to the Bar Council. I do wonder whether the General Medical Council might not have reason to consider the practice of Dr Daly in this case.
The final witness was Dr Sondra Crosby, as the doctor who had been treating Julian since his time in the Ecuadorean Embassy. Dr Crosby seemed a wonderful person and while her evidence was very compelling, again I see no strong reason to reveal it.
At the end of Thursday’s proceedings, there were two witness statements read very quickly into the record. This was actually very important but passed almost unnoticed. John Young of cryptome.org gave evidence that Cryptome had published the unredacted cables on 1 September 2011, crucially the day before Wikileaks published them. Cryptome is US based but they had never been approached by law enforcement about these unredacted cables in any way nor asked to take them down. The cables remained online on Cryptome.
Similarly Chris Butler, Manager for Internet Archive, gave evidence of the unredacted cables and other classified documents being available on the Wayback machine. They had never been asked to take down nor been threatened with prosecution.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
On Wednesday the trap sprang shut, as Judge Baraitser insisted the witnesses must finish next week, and that no time would be permitted for preparation of closing arguments, which must be heard the immediate following Monday. This brought the closest the defence have come to a protest, with the defence pointing out they have still not addressed the new superseding indictment, and that the judge refused their request for an adjournment before witness hearings started, to give them time to do so.
Edward Fitzgerald QC for the defence also pointed out that there had been numerous witnesses whose evidence had to be taken into account, and the written closing submissions had to be physically prepared with reference to the transcripts and other supporting evidence from the trial. Baraitser countered that the defence had given her 200 pages of opening argument and she did not see that much more could be needed. Fitzgerald, who is an old fashioned gentleman in the very nicest sense of those words, struggled to express his puzzlement that all of the evidence since opening arguments could be dismissed as unnecessary and of no effect.
I fear that all over London a very hard rain is now falling on those who for a lifetime have worked within institutions of liberal democracy that at least broadly and usually used to operate within the governance of their own professed principles. It has been clear to me from Day 1 that I am watching a charade unfold. It is not in the least a shock to me that Baraitser does not think anything beyond the written opening arguments has any effect. I have again and again reported to you that, where rulings have to be made, she has brought them into court pre-written, before hearing the arguments before her.
I strongly expect the final decision was made in this case even before opening arguments were received.
The plan of the US Government throughout has been to limit the information available to the public and limit the effective access to a wider public of what information is available. Thus we have seen the extreme restrictions on both physical and video access. A complicit mainstream media has ensured those of us who know what is happening are very few in the wider population.
Even my blog has never been so systematically subject to shadowbanning from Twitter and Facebook as now. Normally about 50% of my blog readers arrive from Twitter and 40% from Facebook. During the trial it has been 3% from Twitter and 9% from Facebook. That is a fall from 90% to 12%. In the February hearings Facebook and Twitter were between them sending me over 200,000 readers a day. Now they are between them sending me 3,000 readers a day. To be plain that is very much less than my normal daily traffic from them just in ordinary times. It is the insidious nature of this censorship that is especially sinister – people believe they have successfully shared my articles on Twitter and Facebook, while those corporations hide from them that in fact it went into nobody’s timeline. My own family have not been getting their notifications of my posts on either platform.
The US Government responded to Baraitser’s pronouncement enthusiastically with the suggestion that closing arguments did not ought to be heard AT ALL. They ought merely to be submitted in writing, perhaps a week after final witnesses. Baraitser appeared eager to agree with this. A ruling is expected today. Let me add that two days ago I noticed the defence really had missed an important moment to stand up to her, when the direction of her railroading became evident. It appears that because of the ground the defence already conceded at that stage, Noam Chomsky is one of the witnesses from whom we now will not hear.
I am afraid I am not going to give you a substantive account of Wednesday’s witnesses. I have decided that the intimate details of Julian’s medical history and condition ought not to be subject to further public curiosity. I know I cannot call back what others have published – and the court is going to consider press requests for the entire medical records before it. But I have to do what I believe is right.
I will say that for the defence, Dr Quinton Deeley appeared. Dr Deeley is Senior Lecturer in Social Behaviour and Neurodevelopment at the Institute of Psychiatry, Psychology, and Neuroscience (IOPPN), King’s College London and Consultant Neuropsychiatrist in the National Autism Unit. He is co-author of the Royal College Report on the Management of Autism.
Dr Deeley after overseeing the standard test and extensive consultation with Julian Assange and tracing of history, had made a clear diagnosis which encompassed Asperger’s. He described Julian as high-functioning autistic. There followed the usual disgraceful display by James Lewis QC, attempting to pick apart the diagnosis trait by trait, and employing such tactics as “well, you are not looking me in the eye, so does that make you autistic?”. He really did. I am not making this up.
I should say more about Lewis, who is a strange character. Privately very affable, he adopts a tasteless and impolite aggression in cross-examination that looks very unusual indeed. He adopts peculiar postures. After asking aggressive questions, he strikes poses of theatrical pugilism. For example he puts arms akimbo, thrusts out his chin, and bounces himself up on his feet to the extent that his heels actually leave the floor, while looking round at the courtroom in apparent triumph, his gaze pausing to fix that of the judge occasionally. These gestures almost always involve throwing back one or both front panels of his jacket.
I think this is some kind of unconscious alpha male signalling in progress, and all these psychiatrists around might link it to his lack of height. It is display behaviour but not really very successful. Lewis has grown a full set during lockdown and he appears strikingly like a chorus matelot in a small town production of HMS Pinafore.
There is a large part of me that wants to give details of the cross-examination because Deeley handled Lewis superbly, giving calm and reasoned replies and not conceding anything to Lewis’s clumsy attempts to dismantle his diagnosis. Lewis effectively argued Julian’s achievements would be impossible with autism while Deeley differed. But there is no way to retell it without going into the discussion of medical detail I do not wish to give. I will however tell you that Julian’s father John told me that Julian has long known he has Asperger’s and will cheerfully say so.
The second psychiatrist on Wednesday, Dr Seena Fazel, Professor of Forensic Psychiatry at the University of Oxford, was the first prosecution witness we have heard from. He struck me as an honest and conscientious man and made reasonable points, well. There was a great deal of common ground between Prof Fazel and the defence psychiatrists, and I think it is fair to say that his major point was that Julian’s future medical state would depend greatly on the conditions he was held in with regard to isolation, and on hope or despair dependent on his future prospects.
Here Lewis was keen to paint an Elysian picture. As ever, he fell back on the affidavit of US Assistant attorney Gordon Kromberg, who described the holiday camp that is the ADX maximum security prison in Florence, Colorado, where the prosecution say Julian will probably be incarcerated on conviction.
You will recall this is the jail that was described as a “living hell” and a “fate worse than death” by its own warden. Lewis invited Prof Fazel to agree this regime would not cause medical problems for Julian, and to his credit Prof Fazel, despite being a prosecution witness, declined to be used in this way, saying that it would be necessary to find out how many of Kromberg’s claims were true in practice, and what was the quality of this provision. Fazel was unwilling to buy in to lies about this notorious facility.
Lewis was disingenuous because he knows, and the prosecution have conceded, that if convicted Julian would most likely be kept in H block at the ADX under “Special Administrative Measures.” If he had read on a few paragraphs in Kromberg’s affidavit he would have come to the regime Julian would actually be held under:
So let us be clear about this. William Barr decides who is subjected to this regime and when it may be ameliorated. For at least the first twelve months you are in solitary confinement locked in your cell, and allowed out only three times a week just to shower. You are permitted no visits and two phone calls a month. After twelve months this can be ameliorated – and we will hear evidence this is rare – to allow three phone calls a month, and brief release from the cell five times a week to exercise, still in absolute isolation. We have heard evidence this exercise period is usually around 3am. After an indeterminate number of years you may, or may not, be allowed to meet another human being.
Behind Baraitser’s chilly disdain, behind Lewis’s theatrical postures, this hell on Earth is what these people are planning to do to Julian. They are calmly discussing how definitely it will kill him, in full knowledge that it is death in life in any event. I sit in the public gallery, perched eight feet above them all, watching the interaction of the characters in this masque, as the lawyers pile up their bundles of papers or stare into their laptops, as Lewis and Fitzgerald exchange pleasantries, as the friendly clerks try to make the IT systems work, and my mind swims in horrified disbelief. They are discussing a fate for my friend as horrible as that of the thousands who over 500 years were dragged from this very spot and strung up outside. They are all chatting and working away as though we were a normal part of civilised society.
Then I go back to my hotel room, type it all up and post it. The governments who are destroying Julian have through their agencies pushed the huge corporations who now control the major internet traffic gateways, to ensure my pained and grieving account is seen by very few. My screams of pain and horror are deadened by thick padded walls. We are all locked in.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
When Daniel Ellsberg released the Pentagon Papers, the US Government burgled the office of his psychiatrist to look for medical evidence to discredit him. Julian Assange has been obliged to submit himself, while in a mentally and physically weakened state and in conditions of the harshest incarceration, to examination by psychiatrists appointed by the US government. He has found the experience intrusive and traumatising. It is a burglary of the mind.
Julian is profoundly worried that his medical history will be used to discredit him and all that he has worked for, to paint the achievements of Wikileaks in promoting open government and citizen knowledge as the fantasy of a deranged mind. I have no doubt this will be tried, but fortunately there has been a real change in public understanding and acknowledgement of mental illness. I do not think Julian’s periodic and infrequent episodes of very serious depression will be successfully portrayed in a bad light, despite the incredibly crass and insensitive attitude displayed today in court by the US Government, who have apparently been bypassed by the change in attitudes of the last few decades.
I discuss this before coming to Tuesday’s evidence because for once my account will be less detailed than others, because I have decided to censor much of what was said. I do this on the grounds that, when it comes to his medical history, Julian’s right to privacy ought not to be abolished by these proceedings. I have discussed this in some detail with Stella Morris. I have of course weighed this against my duty as a journalist to you the reader, and have decided the right to medical privacy is greater, irrespective of what others are publishing. I have therefore given as full an account as I can while omitting all mention of behaviours, of symptoms, and of more personal detail.
I also believe I would take that view irrespective of the identity of the defendant. I am not just being partial to a friend. In all my reporting of these proceedings, of course my friendship with Julian has been something of which I am mindful. But I have invented nothing, nor have I omitted anything maliciously.
I will state firmly and resolutely that my account has been truthful. I do not claim it has been impartial. Because in a case of extreme injustice, truth is not impartial.
The following account tries to give you a fair impression of today’s courtroom events, while omitting the substance and detail of much of the discussion. The single witness all day was the eminent psychiatrist Prof Michael Kopelman, who will be familiar to readers of Murder in Samarkand. Emeritus Professor of Psychiatry at Kings College London and formerly head of psychiatry at Guy’s and St Thomas’s, Prof Kopelman was appointed by the defence (he is not one of the psychiatrists of whom Julian complains, who will give evidence later) and had visited Julian Assange 19 times in Belmarsh Prison. His detailed report concluded that
“I reiterate again that I am as certain as a psychiatrist ever can be that, in the event of imminent extradition, Mr. Assange would indeed find a way to commit suicide,”
Kopelman’s evidence was that his report was based not just on his many consultations with Assange, but on detailed research of his medical records back to childhood, including direct contact with other doctors who had treated Assange including in Australia, and multiple interviews with family and long-term friends. His diagnosis of severe depression was backed by a medical history of such episodes and a startling family history of suicide, possibly indicating genetic disposition.
Prof Kopelman was firm in stating that he did not find Assange to be delusional. Assange’s concerns with being spied upon and plotted against were perfectly rational in the circumstances.
Kopelman had no doubt that Julian was liable to commit suicide if extradited. “It is the disorder which brings the suicide risk. Extradition is the trigger.”
James Lewis QC cross-examined Professor Kopelman for four hours. As ever, he started by disparaging the witness’s qualifications; Prof Kopelman was a cognitive psychiatrist not a forensic psychiatrist and had not worked in prisons. Prof Kopelman pointed out that he had been practising forensic psychiatry and testifying in numerous courts for over thirty years. When Lewis persisted again and again in querying his credentials, Kopelman had enough and decided to burst out of the bubble of court etiquette:
“I have been doing this for over thirty years and on five or six occasions London solicitors have phoned me up and said that James Lewis QC is acting in an extradition case and is extremely keen to get your services for a report. So I think it is a bit rich for you to stand there now questioning my qualifications.” This caused really loud laughter in court, which remarkably the judge made no attempt to silence.
The other trick which the prosecution played yet again was to give Prof Kopelman two huge bundles which had, they said, been sent to him that morning and which he said he had never seen – unsurprisingly as he started testifying at 10am. These included substantial items which Prof Kopelman had never seen before but on which he was to be questioned. The first of these was an academic article on malingering which Kopelman was in effect scorned by Lewis for not having read. He said he had read a great many articles on the subject but not this particular one.
Lewis then read several sentences from the article and invited Kopelman to agree with them. These included “clinical skills alone are not sufficient to diagnose malingering” and one to the effect that the clinical team are best placed to detect malingering. Prof Kopelman refused to sign up to either of these propositions without qualification, and several times over the four hours was obliged to refute claims by Lewis that he had done so.
This is another technique continually deployed by the prosecution, seizing upon a single article and trying to give it the status of holy writ, when JStor would doubtless bring out hundreds of contending articles. On the basis of this one article, Lewis was continually to assert and/or insinuate that it was only the prison medical staff who were in a position to judge Assange’s condition. Edward Fitzgerald QC for the defence was later to assert that the article, when it referred to “the clinical team”, was talking of psychiatric hospitals and not prisons. Kopelman declined to comment on the grounds he had not read the article.
Lewis now did another of his standard tricks; attempting to impugn Kopelman’s expertise by insisting he state, without looking it up, what the eight possible diagnostic symptoms of a certain WHO classification of severe depression were. Kopelman simply refused to do this. He said he made a clinical diagnosis of the patient’s condition and only then did he calibrate it against the WHO guidelines for court purposes; and pointed out that he was on some of the WHO committees that wrote these definitions. They were, he said, very political and some of their decisions were strange.
We then entered a very lengthy and detailed process of Lewis going through hundreds of pages of Assange’s prison medical notes and pointing out phrases omitted from Kopelman’s sixteen page synopsis which tended to the view Assange’s mental health was good, while the Professor countered repeatedly that he had included that opinion in shortened form, or that he had also omitted other material that said the opposite. Lewis claimed the synopsis was partial and biased and Kopelman said it was not.
Lewis also pointed out that some of Assange’s medical history from Australia lacked the original medical notes. Kopelman said that this was from the destruction policy of the state of Victoria. Lewis was only prepared to accept history backed by the original medical notes; Kopelman explained these notes themselves referred to earlier episodes, he had consulted Professor Mullen who had treated Julian, and while Lewis may wish to discount accounts of family and friends, to a medical professional that was standard Maudsley method for approaching mental illness history; there was furthermore an account in a book published in 1997.
After lunch Lewis asked Prof Kopelman why his first report had quoted Stella Morris but not mentioned that she was Julian’s partner. Why was he concealing this knowledge from the court? Kopelman replied that Stella and Julian had been very anxious for privacy in the circumstances because of stress on her and the children. Lewis said that Kopelman’s first duty was to the court and this overrode their right to privacy. Kopelman said he had made his decision. His second report mentioned it once it had become public. Lewis asked why he had not explicitly stated they had two children. Kopelman said he thought it best to leave the children out of it.
Lewis asked whether he was hiding this information because having a partner was a safeguard against suicide. Kopelman said that some studies showed suicide was more common in married people. Besides, what we were considering here was stress of separation from partner and children.
Lewis then addressed the reference in Prof Kopelman’s report to the work of Prof Nils Melzer, the UN Special Rapporteur on Torture. Without specifying Professor Melzer’s background or position or even making any mention of the United Nations at all, Lewis read out seven paragraphs of Prof Melzer’s letter to Jeremy Hunt, then UK foreign secretary. These paragraphs addressed the circumstances of Assange’s incarceration in the Embassy and of his continual persecution, including the decision of the UN Working Group on Arbitrary Detention. Lewis even managed to leave the words “United Nations” out of the name of the working group.
As he read each paragraph, Lewis characterised it as “nonsense”, “rubbish” or “absurd”, and invited Prof Kopelman to comment. Each time Prof Kopelman gave the same reply, that he had only used the work of the psychologist who had accompanied Prof Melzer and had no comment to make on the political parts, which had not appeared in his report. Baraitser – who is always so keen to rule out defence evidence as irrelevant and to save time – allowed this reading of irrelevant paragraphs to go on and on and on. The only purpose was to enter Prof Melzer’s work into the record with an unchallenged dismissive characterisation, and it was simply irrelevant to the witness in the stand. This was Baraitser’s double standard at play yet again.
Lewis then put to Prof Kopelman brief extracts of court transcript showing Julian interacting with the court, as evidence that he had no severe cognitive difficulty. Kopelman replied that a few brief exchanges really told nothing of significance, while his calling out from the dock when not allowed to might be seen as symptomatic of Asperger’s, on which other psychiatrists would testify.
Lewis again berated Kopelman for not having paid sufficient attention to malingering. Kopelman replied that not only had he used his experience and clinical judgement, but two normative tests had been applied, one of them the TOMM test. Lewis suggested those tests were not for malingering and only the Minnesota test was the standard. At this point Kopelman appeared properly annoyed. He said the Minnesota test was very little used outside the USA. The TOMM test was indeed for malingering. That was why it was called the Test of Memory Malingering. Again there was some laughter in court.
Lewis then suggested that Assange may only get a light sentence in the USA of as little as six years, and might not be held in solitary confinement. Would that change Kopelman’s prognosis? Kopelman said it would if realistic, but he had done too many extradition cases, and seen too many undertakings broken, to put much store by this. Besides, he understood no undertakings had been given.
Lewis queried Kopelman’s expertise on prison conditions in the USA and said Kopelman was biased because he had not taken into account the evidence of Kromberg and of another US witness on the subject who is to come. Kopelman replied that he had not been sent their evidence until substantially after he completed his reports. But he had read it now, and he had seen a great deal of other evidence that contradicted it, both in this case and others. Lewis suggested it was not for him to usurp the judgement of the court on this issue, and he should amend his opinion to reflect the effect of the US prison system on Assange if it were as Kromberg described it. Kopelman declined to do so, saying he doubted Kromberg’s expertise and preferred to rely on among others the Department of Justice’s own report of 2017, the Centre for Constitutional Rights report of 2017 and the Marshall report of 2018.
Lewis pressed Kopelman again, and asked that if prison conditions and healthcare in the USA were good, and if the sentence were short, would that cause an alteration to his clinical opinion. Kopelman replied that if those factors were true, then his opinion would change, but he doubted they were true.
Suddenly, Baraitser repeated out loud the part quote that if prison conditions in the US were good and the sentence were short, then Kopelman’s clinical opinion would change, and ostentatiously typed it onto her laptop, as though it were very significant indeed.
This was very ominous. As she inhabits a peculiar world where it is not proven that anybody was ever tortured in Guantanamo Bay, I understand that in Baraitser’s internal universe prison conditions in the Colorado ADX are perfectly humane and medical care is jolly good. I could note Baraitser seeing her way suddenly clear to how to cope with Professor Kopelman in her judgement. I could not help but consider Julian was the last person in this court who needed a psychiatrist.
Lewis now asked, in his best rhetorical and sarcastic style, whether mental illness had prevented Julian Assange from obtaining and publishing hundreds of thousands of classified documents that were the property of the United States? He asked how, if he suffered from severe depression, Julian Assange had been able to lead Wikileaks, to write books, make speeches and host a TV programme?
I confess that at this stage I became very angry indeed. Lewis’s failure to acknowledge the episodic nature of severe depressive illness, even after the Professor had explained it numerous times, was intellectually pathetic. It is also crass, insensitive and an old-fashioned view to suggest that having a severe depressive illness could stop you from writing a book or leading an organisation. It was plain stigmatising of those with mental health conditions. I confess I took this personally. As long-term readers know, I have struggled with depressive illness my entire life and have never hidden the fact that I have in the past been hospitalised for it, and on suicide watch. Yet I topped the civil service exams, became Britain’s youngest Ambassador, chaired a number of companies, have been Rector of a university, have written several books, and give speeches at the drop of a hat. Lewis’s characterisation of depressives as permanently incapable is not just crassly insensitive, it is a form of hate speech and should not be acceptable in court.
(I am a supporter of free speech, and if Lewis wants to make a fool of himself by exhibiting ignorance of mental illness in public I have no problem. But in court, no.)
Furthermore, Lewis was not representing his own views but speaking on the direct instructions of the government of the United States of America. Throughout a full four hours, Lewis on behalf of the government of the USA not only evinced no understanding whatsoever of mental illness, he never once, not for one second, showed one single sign that mental illness is a subject taken seriously or for which there is the tiniest element of human sympathy and concern. Not just for Julian, but for any sufferer. Mental illness is malingering or if real disqualifies you from any role in society; no other view was expressed. He made plain on behalf of the US Government, for example, that Julian’s past history of mental illness in Australia will not be taken into account because the medical records have been destroyed.
The only possible conclusion from yesterday’s testimony is that the performance of the representative of the United States Government was, in and of itself, full and sufficient evidence that there is no possibility that Julian Assange will receive fair consideration and treatment of his mental health issues within the United States system. The US government has just demonstrated that to us, in open court, to perfection.
Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.
Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.
Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.
Monday was a frustrating day as the Assange Hearing drifted deep into a fantasy land where nobody knows or is allowed to say that people were tortured in Guantanamo Bay and under extraordinary rendition. The willingness of Judge Baraitser to accept American red lines on what witnesses can and cannot say has combined with a joint and openly stated desire by both judge and prosecution to close this case down quickly by limiting the number of witnesses, the length of their evidence, and the time allowed for closing arguments. For the first time, I am openly critical of the defence legal team who seem to be missing the moment to stop being railroaded and say no, this is wrong, forcing Baraitser to make rulings against them. Instead most of the day was lost to negotiations between prosecution and defence as to what defence evidence could be edited out or omitted.
More of which later.
PROFESSOR CHRISTIAN GROTHOFF
The first witness was Professor Christian Grothoff, a computer scientist based at the University of Berne Institute of Applied Sciences. Prof Grothoff had prepared an analysis of how and when the unredacted cables first came to be released on the internet.
Prof Grothoff was taken through his evidence in chief by Marks Summers QC for the defence. Prof Grothoff testified that Wikileaks had shared the cable cache with David Leigh of the Guardian. This had been done in encrypted form. It had a very strong encryption key; without the long, strong password there would be no way to access it. It was useless without the key. In reply to questions from Summers, Prof Grothoff confirmed that it was standard practice for information to be shared by an online cache with strong encryption. It was standard practice, and not in any way irresponsible. Banking or medical records might be securely communicated in this way. Once the file is encrypted, it cannot be read without the key, and nor can the key be changed. New copies can of course be made from the unencrypted original with different keys.
Summers then led Prof Grothoff to November 2010 when cables started to be published, initially by partners from the media consortium after redaction. Grothoff said that the next event was a DDOS attack on the Wikileaks site. He explained how a distributed denial of service attack works, hijacking multiple computers to overload the target website with demand. Wikileaks reaction was to encourage people to put up mirrors to maintain the availability of content. He explained this was quite a normal response to a DDOS attack.
Prof Grothoff produced a large list of mirrors created all over the world as a result. Wikileaks had posted instructions on how to set up a mirror. Mirrors set up using these instructions did not contain a copy of the cache of unredacted cables. But at some point, some mirrors started to contain the file with the unredacted cables. These appeared to be few and special sites with mirrors created in other ways than by the Wikileaks instructions. There was some discussion between Grothoff and Summers as to how the cached file may have been hidden in an archive on the Wikileaks site, for example not listed in the directory, and how a created mirror could sweep it up.
Summers then asked Professor Grothoff whether David Leigh released the password. Grothoff replied that yes, Luke Harding and David Leigh had revealed the encryption key in their book on Wikileaks published February 2011. They had used it as a chapter heading, and the text explicitly set out what it was. The copies of the encrypted file on some mirrors were useless until David Leigh posted that key. Summers So once David Leigh released the encryption key, was it in Wikileaks’ power to take down the mirrors? Grothoff No. Summers Could they change the encryption key on those copies? Grothoff No. Summers Was there anything they could do? Grothoff Nothing but distract and delay.
Grothoff continued to explain that on 25 August 2011 the magazine Der Freitag had published the story explaining what had happened. It did not itself give out the password or location of the cache, but it made plain to people that it could be done, particularly to those who had already identified either the key or a copy of the file. The next link in the chain of events was that nigelparry.com published a blog article which identified the location of a copy of the encrypted file. With the key being in David Leigh’s book, the material was now effectively out. This resulted within hours in the creation of torrents and then publication of the full archive, unencrypted and unredacted, on Cryptome.org.
Summers asked whether Cryptome was a minor website. Grothoff replied not at all, it was a long established platform for leaked or confidential material and was especially used by journalists.
At this stage Judge Baraitser gave Mark Summers a five minute warning on Prof Grothoff’s evidence. He therefore started to speed through events. The next thing that happened, still on 31 August 2011, is that a website MRKVA had made a searchable copy. Torrents also started appearing including on Pirate Bay, a very popular service. On 1 September, according to classified material from the prosecution supplied to Prof Grothoff, the US Government had first accessed the unredacted cache. The document showed this had been via a torrent from Pirate Bay. Wikileaks had made the unredacted cables available on 2 September, after they were already widely available. They had already passed the point where “they could not be stopped”.
Neither Pirate Bay nor Cryptome had been prosecuted for the publication. Cryptome is US based.
Joel Smith then rose to cross-examine for the prosecution. He started by addressing the Professor’s credentials. He suggested that the Professor was expert in computer analysis, but in putting together a chronology of events he was not expert. Prof Grothoff replied that it had required specialist forensic skills to track the precise chain of events.
Joel Smith then suggested that his chronology of events was dependent on material provided by the defence. Prof Grothoff said that indeed the defence had supplied key evidence, but he had searched extensively for other material and evidence online of the course of events and tested the defence evidence.
Smith then asked Grothoff whether he had withheld any information he should have given as a declaration of interest. Grothoff said he had not, and could not think what Smith was talking about. He had conducted his research fairly and taken great care to test the assertions of the defence against the evidence. Smith then read out an open letter from 2017 to President Trump calling for the prosecution of Assange to be dropped. Grothoff said it was possible, but he had no recollection of having signed it or seeing it. The defence had told him about it on Saturday, but he still did not remember it. The content of the letter seemed reasonable to him, and had a friend asked him to sign then he would probably have done so. But he had no memory of it.
Smith noted that Grothoff was listed as an initial signatory not an online added signatory. Grothoff replied that nevertheless he had no recollection of it. Smith then asked him incredulously “and you cannot remember signing a letter to the President of the United States?” Grothoff again confirmed he could not remember.
Quoting the letter, Smith then asked him “Do you think the prosecution is “a step into the darkness”?”. Grothoff replied that he thought it had strong negative ramifications for press freedom worldwide. Lewis then put to Grothoff that he had strong views, and thus was evidently “biased, partial”. Grothoff said he was a computer scientist and had been asked to research and give testimony on matters of fact as to what had occurred. He had tested the facts properly and his personal opinions were irrelevant. Smith continued to ask several more questions about the letter and Grothoff’s partiality. Altogether Smith asked 14 different questions related to the open letter Grothoff had allegedly signed. He then moved on:
Smith Did you download the cables file yourself during your research? Grothoff Yes, I did. Smith Did you download it from the Wikileaks site? Grothoff No, I believe from Cryptome. Smith So in summer 2010 David Leigh was given a password and the cache was put up on a public website? Grothoff No, it was put on a website but not public. It was in a hidden directory. Smith So how did it end up on mirror sites if not public? Grothoff It depends how the specific mirror is created. On the Wikileaks site the encrypted cache was not an available field. Different mirroring techniques might sweep up archive files. Smith Wikileaks had asked for the creation of mirrors? Grothoff Yes. Smith The strength of a password is irrelevant if you cannot control the people who have it. Grothoff That is true. The human is always the weakest link in the system. It is difficult to guard against a bad faith actor, like David Leigh. Smith How many people did Wikileaks give the key in the summer of 2010? Grothoff It appears from his book only to David Leigh. He then gave it to the hundreds of thousands who had access to his book. Smith Is it true that 50 media organisations and NGOs were eventually involved in the process of redaction? Grothoff Yes, but they were not each given access to the entire cache. Smith How do you know that? Grothoff It is in David Leigh’s book. Smith How many people in total had access to the cache from those 50 organisations? Grothoff Only Mr Leigh was given access to the full set. Only Mr Leigh had the encryption key. Julian Assange had been very reluctant to give him that access. Smith What is your evidence for that statement? Grothoff It is in David Leigh’s book. Smith That is not what it says.
Smith then read out two long separate passages from Luke Harding and David Leigh’s book, both of which indeed made very plain that Assange had given Leigh access to the full cache only with extreme reluctance, and had been cajoled into it, including by David Leigh asking Assange what would happen if he were bundled off to Guantanamo Bay and nobody else but Assange held the password.
Grothoff That is what I said. Harding and Leigh write that it had been a hard struggle to prise the password out of Assange’s hand. Lewis How do you know that the 250,000 cables were not all available to others? Grothoff In February 2011 David Leigh published his book. Before that I do not have proof Wikileaks gave the password to nobody else. But if so, they have kept entirely quiet about it. Smith You say that after the DDOS attack Wikileaks requested people to mirror the site globally. They published instructions on how to do it. Grothoff Yes, but mirrors created using the Wikileaks instructions did not include the encrypted file. In fact this was helpful. They were trying to build a haystack. The existence of so many mirrors without the unencrypted file made it harder to find. Smith But in 2010 the password had not been released. Why would Wikileaks want to build a haystack then? Grothoff The effect was to build a haystack. I agree that was probably not the initial motive. It may have been when this mirror creation continued later. Smith As of December 2010 what Wikileaks are saying is they wish to proliferate the site as they are under attack? Grothoff Yes Joel Smith On 23 August 2011 Wikileaks start a mass release of cables? Grothoff Yes. This is a release of unclassified cables and also ongoing release of redacted classified cables by media partners. Smith They were releasing cables by country, and putting out tweets saying which countries they were releasing cables for both then and next? (Smith reads from tweets.) Grothoff Yes. I have verified that these were unclassified cables by searching through these cables on the classification field. Smith Were some classified secret? Grothoff No, they were unclassified. I checked this. Smith Were some marked “strictly protect”? Grothoff That is not a classification in the classification field. I did not check for that. Smith Wikileaks boast that they make the files available in a searchable form. Grothoff Yes, but their search facility was not very good. Much easier to search them in other ways. Smith You said Der Freitag stated that the encrypted file was available on mirrors. The article does not say that. Grothoff No, but it says that it was widely circulating on the internet. That is done by mirroring. They did not use that word, I agree. Smith The 29 August Der Spiegel article does not publish the password. Then Wikileaks publishes an article claiming these stories are “substantially incorrect”. Grothoff It points to the password. Smith Some cables were published classified “Secret”. Grothoff These were cables that had been redacted fully by the consortium of media experts. Smith Why do you call them “experts”? Grothoff They knew the subject matter and the localities. Smith Why do you call them “experts”? Grothoff They were experienced journalists who knew what was and was not safe and right to publish. So experts in journalism. You need to distinguish between three types of cable published at this time: 1) classified and redacted; 2) unclassified; 3) the classified and unredacted cache. Smith Are you aware that some cables were marked “strictly protect”? Grothoff That is not a designation of a cable. It is applied to individuals. But it does not indicate that they are in danger, merely that for political reasons they do not want to be known as giving evidence to the US government? Smith How do you know that? Grothoff It is in the bundle I was sent, and the evidence of other defence witnesses. Smith You don’t know. Grothoff I do know the “strictly protect” names you are referring to were in safe countries. Smith Before 31 August you find no evidence of full publication of the entire cache? Grothoff Yes.
We then went through an excruciatingly long process of Smith querying the evidence for the timing of every publication prior to Wikileaks own publication, and trying to shift back the latest possible time of publication online of various copies, including Cryptome, MRKVA, Pirate Bay and various other torrents. He managed to establish that, depending which time zone you were in, some of this could be attributed to possibly very early on 1 September rather than 31 August, and that it was not possible to put an exact time within a window of a few hours on Cryptome’s unredacted publication early in the morning on 1 September.
[This exercise could cut both ways. The timing of a tweet saying a copy or torrent is up and giving a link, must be sent out after the material is put up, which could be some time before sending the tweet.]
Grothoff concluded that at the end of the day we do not know to the minute timings for every publication, but what we can say for certain is that all of the publications discussed, including Cryptome, were before Wikileaks.
Smith then noted that Parry wrote in his blog “This is a bad day for David Leigh and the Guardian. I ran the password from David Leigh’s book in an old W/L file…” but did not give the location of the file. This was at 10pm on 31 August. Within 20 minutes Wikileaks was issuing a press release “statement of the betrayal of Wikileaks passwords by the Guardian” and 80 minutes later an editorial. [I think that Smith here was trying to say Wikileaks had published Parry’s breakthrough.] Smith then invited Grothoff to agree that when Wikileaks themselves published the full documents later on 2 September, it was more comprehensible and visible than earlier publications. Grothoff replied it was not more comprehensive, it was the same. It was more visible but by that time the cat was well out of the bag and the unredacted cables were spreading rapidly all over the internet. There was no way to stop them.
Mark Summers then re-examined Grothoff and established that the evidence was that the encryption key for the full cache was given to David Leigh and to nobody else. The storage method was secure – Grothoff pointed out that precisely the same method was used to send around the court bundles in this case. Only David Leigh had revealed the password.
On mirror sites, Grothoff confirmed that the Wikileaks instructions created mirrors without the encrypted cache. All the copies of the encrypted cache he could find on other mirrors, were on sites which plainly were created using other methods, for example other software systems. Summers then got Professor Grothoff to explain the methodology he had used to verify the cables published by Wikileaks before the Leigh crash were all unclassified. Apart from dip sampling, this included a correlation of the number published for each country with the number listed as unclassified for each country in the US government directory. These matched in every case.
Summers then attempted to take Grothoff back over the timeline evidence which Joel Smith had put so much effort into muddying, but was prevented from doing so by Baraitser. She had interrupted Summers four times during his re-examination, on the extraordinary basis that this ground was gone over before; extraordinary because that is the point of a re-examination. Baraitser had permitted Smith to ask fourteen successive questions of Grothoff on the subject of why he had signed an open letter. The double standard was very obvious.
Which brings us to a very crucial point. The next witness, Andy Worthington, was at court and ready to give evidence, but was prevented from doing so. The United States government objected to his evidence, about his work on the Guantanamo Detainee files, being heard because it contained allegations of inmates being tortured at Guantanamo.
Baraitser said her ruling was not going to consider whether torture took place at Guantanamo, or if extraordinary rendition had happened. She did not need to hear evidence on these points. Mark Summers replied that the ECHR had ruled on these as facts, but that it was necessary they be stated by witnesses as appropriate as it went to the Article 10 ECHR defence. Lewis maintained the objection from the US government.
Baraitser said she wanted the prosecution and defence to produce a witness schedule that would get the case finished by the end of next week, including closing statements. She wanted them to agree what evidence could and could not be heard. Where possible she wanted evidence in uncontested statements with the defence just reading out the gist.
She also said that she did not want to hear closing arguments in court, but she would have them in writing and the defence and prosecution could just summarise them briefly orally.
What the defence should have said at this moment is “Madam, the dogs in the street know that people were tortured in Guantanamo Bay. In the real world, it is not a disputed fact. If Mr Lewis’s instructions were to deny that the earth is round, would our witnesses have to accommodate that? The truth of these matters plainly goes to the Article 10 Defence, and by pandering to the denial of a notorious and plain fact, this court will be held up to mockery. We will not discuss such ludicrous censorship with Mr Lewis. If you wish to rule that there must be no mention of torture in evidence, then so be it.”
The defence did not say any of that, but as instructed entered a process with the prosecution lawyers of agreeing the shortening and editing of evidence, a process which took all day and with which Julian showed plain signs of being uncomfortable. Andy Worthington did not get to give his evidence. The only further evidence heard was the reading of the gist of a statement from Cassandra Fairbanks. I did not hear most of this because, having adjourned to 4.30pm, the court re-adjourned earlier than advertised, while Julian’s dad John Shipton, the musician MIA and I were away having a coffee. I commend this account by Kevin Gosztola of Fairbanks’ startling evidence. It was read quickly by Edward Fitzgerald in “gist”, agreed as an uncontested account, and speaks strongly of the political motivation apparent in this prosecution.
I am very concerned about the obvious collusion of the prosecution and the judge to close this case down. The extraordinary conflation of “time management” and excluding evidence which the US Government does not want heard in public is plainly illegitimate. The continual chivvying and interruption of defence counsel in examination when prosecution counsel are allowed endless repetition amounting to harassment and bullying is illegitimate. Some extraordinarily long prosecution cross-examinations, such as that of Carey Shenkman the lawyer, have every appearance of deliberate time wasting and distraction.
Tuesday’s witness is Professor Michael Kopelman, the eminent psychiatrist, and the prosecution have indicated they wish to cross-examine him for an extraordinary four hours, which Baraitser agreed against defence objections. Her obsession with time management is distinctly subjective.
Obviously there is a moral question for me in how much of this medical evidence I publish. The decision will be taken in strict accordance with the views of Julian or, if we cannot ascertain that, his family.
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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.
NICKY HAGER
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 war 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? Hager Yes. 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? Hager No. 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? Hager No. Lewis You say it would have been impossible to write your book without confidential material from Wikileaks. Did you need the names of informants? Hager No. 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? Hager Yes. 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? Hager Yes. 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? Hager Yes. 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? Hager Yes. 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? Hager Yes.
JENNIFER ROBINSON
The court then moved to its first witness with “read evidence”. It has been agreed that some witnesses whom the prosecution does not wish to cross examine will have their evidence “read” into the record without having to appear. After substantial discussions and disagreements between the lawyers this has been resolved to be a short summary or “gist” of their evidence. My reports then for this group of witnesses are the gist of a gist; in this case of the evidence of Jennifer Robinson.
Jennifer Robinson is a lawyer who has advised Julian Assange since 2010. She represented him in his Swedish legal issues. On 15 August 2017 he asked her to join him for a meeting in the Ecuadorean Embassy in London with US Congressman Dana Rohrabacher and an aide Charles Johnson. Rohrabacher had stated he was acting on behalf of President Donald Trump and would report back to Trump on his return to Washington.
Rohrabacher said that the “Russiagate” story was politically damaging to President Trump, was damaging to US interests and to US/Russian relations. It would therefore be very helpful if Julian would reveal the real source of the DNC leaks. This would be in the public interest.
Julian Assange had put the case for a full pardon for Chelsea Manning and for any indictment against himself as a publisher to be dropped on First Amendment grounds. Rohrabacher had said there was an obvious “win win solution” here and he would investigate “what might be possible to get him out.” Assange could reveal the DNC source in return for a “pardon, deal or arrangement”. Assange had however not named any source to him.
KHALED EL-MASRI
There had been three days of intense discussion between the counsel and the judge, with the United States government objecting bitterly to Mr El-Masri being heard. A compromise had been reached that he could give evidence provided he did not allege he was tortured by the US Government. However, when he came to give evidence, Mr El-Masri was strangely unable to connect by videolink, even though the defence team had been able to speak to him by video a few hours earlier. Technical staff in the court having been unable to resolve the (ahem) technical issue, rather than simply postpone his evidence until a videolink had been established – as had happened already with two other witnesses when quality issues arose – Judge Baraitser suddenly decided to raise again the issue of whether el-Masri’s evidence should be heard at all.
James Lewis QC for the US Government stated that they did not merely oppose his evidence of being tortured. They opposed the making of any claim that a Wikileaks-released cable showed that they had put pressure on the government of Germany not to arrest those allegedly concerned in his alleged extradition. The US Government had not pressurised the Government of Germany, Lewis said. Mark Summers QC for the defence said that the Supreme Chamber of the European Court in Strasbourg had already judged his claims to be true, and that the Wikileaks cable plainly and inarguably showed the US Government exerting pressure on Germany.
Judge Baraitser said she was not going to determine if the US had pressurised Germany or if el-Masri had been tortured. Those were not the questions before her. Mark Summers QC said that it went to the question of whether Wikileaks had performed a necessary act to prevent criminality by the US Government and enable justice. Lewis responded that it was unacceptable to the US government that allegations of torture should be made.
At this point, Julian Assange became very agitated. He stood up and declared very loudly:
“I will not permit the testimony of a torture victim to be censored by this court”
A great commotion broke out. Baraitser threatened to have Julian removed and have the hearing held in his absence. There was a break following which it was announced that el-Masri would not appear, but that the gist of his evidence would be read out, excluding detail of US torture or of US pressure on the government of Germany. Mark Summers QC started to read the evidence.
Khaled el-Masri, of Lebanese origin, had come to Germany in 1989 and was a German citizen. On 1 January 2004 after a holiday in Skopje he had been removed from a coach on the Macedonian border. He had been held incommunicado by Macedonian officials, ill-treated and beaten. On 23 July he had been taken to Skopje airport and handed over to CIA operatives. They had beaten, shackled, hooded and sodomised him. His clothes had been ripped off, he had been dressed in a diaper, shackled to the floor of an aircraft in a cruciform position, and rendered unconscious by an anaesthetic injection.
He awoke in what he eventually learned was Afghanistan. He was held incommunicado in a bare concrete cell with a bucket for a toilet. He was held for six months and interrogated throughout this period [details of torture excluded by the judge]. Eventually in June he was flown to Albania, driven blindfold up a remote mountain road and dumped. When he eventually got back to Germany, his home was deserted and his wife and children had left.
When he made his story public he was subject to vicious attacks on his character and his credibility and it was claimed he was inventing it. He believes the government sought to silence him. He sought a local lawyer and persisted, eventually getting in touch with Mr Goetz of public TV, who had proven his story to be true, traced the CIA agents involved to North Carolina and even interviewed some of them. As a result, Munich state prosecutors released arrest warrants for his CIA kidnappers, but these were never executed. When Wikileaks issued the cables the pressure that had been brought on the German government not to prosecute became plain. [The judge did not prevent Summers from saying this.] We therefore know the US blocked judicial investigation of a crime. The European Court of Human Rights had explicitly relied on the Wikileaks cables for part of its judgement in the case. The Grand Chamber confirmed that he had been beaten, hooded, shackled and sodomised.
There had been no accountability in the USA. The CIA Inspector-General had declined to take action over the case. The ECHR judgement and supporting documentation had been sent to the office of the US Attorney in the Eastern District of Virginia – precisely the same office that was now attempting to extradite Assange – and that office had declined to prosecute the CIA officers concerned.
A complaint had been made to the International Criminal Court including the ECHR judgement and the Wikileaks material. In March 2020 the ICC had announced it was opening an investigation. In response US Secretary of State Mike Pompeo had declared any non-US citizen who cooperated with that ICC investigation, including officers of the ICC, would be subject to financial and other sanctions.
Finally, el-Masri testified that Wikileaks’ publication had been essential to him in gaining acceptance of the truth of the crime and of the cover-up.
In fact, the impact of Mark Summers’ reading of el-Masri’s statement on the court was enormous. Summers has a real gift for conveying moral force and constrained righteous anger in his tone. I thought the testimony had a definite impression on Judge Baraitser; she showed signs not of discomfort or embarrassment, but of real emotional distress while she was listening intently. Subsequently, two different witnesses, each situated in separate sections of the court from me, both in separate and unprompted conversations with me, told me that they thought that el-Masri’s testimony had really gotten through to the judge. Vanessa Baraitser is after all only human, and this is the first time she has been forced to deal with what this case is actually about.
DEAN YATES
The United States had objected that Mr Yates’ evidence should not include description of the actual content of the Collateral Murder video. I could not hear or understand any rationale why Baraitser agreed to this, but she did so rule, and four times she interrupted Edward Fitzgerald QC while he was reading the “gist” of Yates’ statement, to tell him he must not mention the content of the video.
Edward Fitzgerald read out that Mr Yates was a highly experienced journalist who had been Bureau Chief for Reuters in Baghdad. Early on 12 July 2007 “loud wailing” broke out in their office and he learnt that Namir, a photographer, and Saeed, a driver, had been killed. Namir had left early to cover a reported conflict with militants. Yates could not work out what had happened. A minivan nearby had its front shattered; the US military had taken Namir’s two cameras and refused to release them. The report was thirteen killed and nine injured. There did not appear to be any evidence of a firefight at the scene.
Yates had attended a US military HQ briefing where he was told that a hostile group had been deploying Improvised Explosive Devices in the road. He was shown photographs of machine guns and RPGs allegedly collected from the scene. He was shown three minutes of the video. It showed [Here Baraitser cut Fitzgerald off].
Yates had subsequently submitted a request to the US military to view the whole video, which had been denied. So had requests for the rules of engagement.
When Wikileaks released the Collateral Murder video, in the video Saeed was shown for three minutes crawling and trying to get up, while the Americans watching him remotely were saying “come on buddy, all you’ve got to do is pick up a weapon” so they could shoot him again. The Good Samaritan pulled up to help and the shots were seen destroying his windscreen and car. Edward Fitzgerald kept doggedly reading out bits of Yates’ testimony as Baraitser continually asked him to stop in a manner that was almost pleading.
Yates said that when he saw the video he immediately realised the US had lied to them about what happened. He also immediately wondered how much of that meeting at USHQ had been choreographed.
Something struck Yates very hard later. He had always blamed Namir for peering round the corner with his camera, which had been mistaken for a weapon and therefore caused him to be shot. It was Julian Assange who subsequently made the point that the order to kill Namir had been given before he had peered round the corner. He vividly recalled Assange saying “and if that’s within the RoEs, then the RoEs are wrong.” Yates was glad to absolve Namir but felt a terrible burden of guilt for having blamed him all the while for his own death.
Yates concluded that had it not been for Chelsea Manning and Julian Assange, the truth of what had happened to Namir and Saeed would never have been known. Thanks to Wikileaks, their deaths had a profound effect on public opinion.
James Lewis QC stated the American government had no questions but this did not imply the evidence was accepted.
CAREY SHENKMAN
Finally, we turned to the second half of Clair Dobbin’s cross-examination of Carey Shenkman on his testimony on the history of the Espionage Act. This may seem dull, but it has actually been extremely revealing in terms of revealing US government claims of the right to use the Espionage Act (1917) against any journalist, anywhere in the world, who obtains US classified information.
Dobbin opened part 2 by asking Shenkman whether he was seriously arguing that there existed any law that precluded the prosecution of a journalist under the Espionage Act for revealing national security information. Shenkman replied that the law had components; legislation, common law and the constitution, and that these interact. There is a very strong argument that the First Amendment does preclude such prosecution.
Dobbin asked whether any case established this beyond doubt. Shenkman replied that there had never been such a prosecution, so it had never come before the Supreme Court. Dobbin asked whether he accepted that in the New York Times case, the Supreme Court had said such an Espionage Act case could be brought. Shenkman replied that some of the judges had mentioned the possibility in their dicta, but that is not what they were ruling on and they had not heard any arguments before them on the issue.
Dobbin said that the judge in the Rosen case had stated that the New York Times case might have had a different outcome if pursued under the espionage act 79/3/e and such future prosecution was not precluded. Shenkman said the Rosen judgement was an outlier and did not refer to media publication. The Justice Department had decided no further action on Rosen. Shenkman referred her to a 2007 Harvard Law Review article on Rosen. It had been dropped because of First Amendment concerns.
Dobbin tried again and asked Shenkman whether he accepted that the judgement in Rosen found the interpretation of dicta in the New York Post case did not preclude prosecution. Shenkman, who seemed to be enjoying this, said the issue had not been briefed before the Supreme Court. And the Rosen judgement had not been carried through. Dobbin suggested this meant it was arguable both ways. Shenkman replied the Supreme Court judgement in NYT was about prior restraint.
Dobbin then asked Shenkman whether he accepted the fact that the vagueness objection to the Espionage Act had been rejected by the courts in whistleblower cases. Shenkman said there were many and sometimes contradictory cases in different appellate jurisdictions. But these were all cases involving government insiders not journalists.
Dobbin then asked why Shenkman’s witness statement did not make clear that the Espionage Act had been subject to judicial refinement. Shenkman replied that was because he did not think most academics would agree with that. It had been interpreted but not refined. Dobbin said that the effect of the interpretation had been to narrow its scope. She quoted the Rosen judgement again and the Morison judgement. They narrowed the scope to leak of official information that was damaging to the interests of the United States. This was an important new test. The Rosen judgement said this was “a clear safeguard against arbitrary enforcement.”
Shenkman replied that addresses only one particular aspect of the Espionage Act, the definition of national security information, and there had been whole books written on that. Quoting one line of one judgement really did not help. Other aspects were extremely broad. The main problem with the Act was the same legal standard is applied to all categories of recipient – the whistleblower, the publisher, the journalist, the newspaper seller and the reader could all be equally liable.
Dobbin then suggested the prosecution could not be political because it was the court that decides the definition of national security information. Shenkman replied that on the other hand it is the executive that decides what material is classified, who is prosecuted and on what charges. It was not just a matter of prosecution. The Espionage Act could be shown historically to have a chilling effect on important journalism.
Dobbin then asked Shenkman whether he agreed that the provisions under which Assange were tried had never been intended to apply to “classic espionage”. Shenkman said most authorities would reject the idea of a clear and singular intent. Dobbin said that in the Morison case the judgement had rejected the argument that the provision was limited to classic espionage. Shenkman rather wickedly agreed that yes, that judgement had indeed broadened the application of the act – as opposed to refining it. But other judgements were available. Besides, she had asked him about intent. What Congress intended in 1917 and what the Morison court decided were two different things. There had been numerous successful prosecutions of whistleblowers under Obama. Plainly the courts generally accepted that these provisions apply to government insiders. There had never been a prosecution of a journalist or publisher.
Dobbin, who is nothing if not persistent, asked Shenkman if he accepted that the Morison judgement says that only provision 79/4 applies to classic espionage. Shenkman replied that the Morison judgement was a single star in the night sky among myriad points of navigation through these laws. They then got in to discussion of the views of various professors on the subject.
Now I cede to very few in my interest in the details of this case, and certainly I absolutely appreciate the fundamental threat posed by the insistence on the general application of the Espionage Act against journalists as outlined by the prosecution, above all in the current political climate; but it was now late Friday afternoon after a very hard week and I have my limits. I decided to see how many verses of Shelley’s The Masque of Anarchy I could recall instead.
When my consciousness groped its way back to the courtroom, Dobbin was putting to Shenkman that the fact that numerous potential prosecutions had been dropped, just proved the act was used responsibly and properly. Shenkman said that was to ignore the chilling effect both in general and in specific threats to prosecute. Chilling caused papers costs, delays and even bankruptcies. President Roosevelt had used the threat of the Espionage Act to suppress independent black newspapers.
Dobbin suggested that in the instances where it had been decided not to prosecute due to the First Amendment, these cases had related to responsible major media titles. Shenkman replied that this was not true at all. Beacon Press, for example, which published the full Pentagon Papers, was a small religious organisation.
Dobbin said none of the past examples resembles Wikileaks. Shenkman again disagreed. There were many striking points of similarity in different cases. Dobbin replied that Wikileaks’ sole purpose and design was to source material from those entitled to receive it and give it to those not entitled to see it. It was solicitation on a mass scale. Shenkman said she was reaching for a distinction. Similarities to the Beacon Press and Amerasia cases were obvious.
Dobbin concluded that Shenkman’s opinion and evidence was “frivolous and nonsensical”.
Mark Summers then re-examined Shenkman. He referred to the Jack Anderson case. Anderson had published entire Top Secret documents, unredacted, in time of war. He had not been prosecuted under the Espionage Act on First Amendment grounds. Shenkman replied yes, and the documents he had published were particularly sensitive communications intelligence (intercepts).
Summers referred to sentences from judgements which Dobbin had invited Shenkman to accept as “uncontrovertible statements of the law” but which were anything but. In the Morison case he pointed out that the two other judges in the case had explicitly contradicted the very sentence Dobbin had quoted. Judge Wilkerson had stated “the First Amendment interest in informed national debate does not simply vanish at the mention of the words “national security””.
Summers said above all the US government now relied on the Rosen judgement. He asked what level of court that had been. Shenkman replied that it was a district court, the lowest level of US court. And the Justice Department had decided against proceeding with it. Finally Summers said that Shenkman had stated there had never been a prosecution, but there had been threats resulting in a chilling effect. What types of people had been threatened with prosecution under the Espionage Act for publishing? Shenkman stated that in every case it was political; opponents of the Presidency, minority groups, pacifists and dissidents.
That concluded the week.
COMMENT
There are numerous serious questions relating to the handling of evidence in this case. I should start by saying that the government of the United States had objected to almost all of the defence evidence. They want the defence witnesses ruled as either not expert (hence the sustained rudeness and attacks) or not relevant. Judge Baraitser had ruled that she will hear all the evidence, and decide only when she comes to judgement, what is and is not admissible.
Against that we then have her decision that the witnesses can only have half an hour of going through their statements before cross-examination. That is against a US government request that witness statements should not be heard before cross-examination at all. Theoretically Baraitser agreed to this, but she let in half an hour to “orient the witness”, which gets the basic facts out there. Baraitser rejected the defence arguments that statements should be read or explained at length by the witness in court, for the benefit of the public, on the basis that the statements are published. But they are not published. The Court does not publish them. It gives copies to journalists registered to cover the trial, but those journalists have no interest in publishing them. The first two days’ witness statements were published here, but for several days they stopped. They seem to have started again on Friday, but this is not satisfactory for the public.
Next we have the specific pieces of evidence that are banned on US objection, like the details of el-Masri’s torture or of the content of the Collateral Murder video. I can understand that it is true that this court is not judging if el-Masri was tortured – in fact that is now established by the ECHR. But plainly his story is relevant to Wikileaks’ defence of necessary publication to prevent crime and enable judicial process. The fact is that the USA wants to avoid the political embarrassment and media publicity of el-Masri’s torture and the events of the Collateral Murder video being detailed in court. Why an English court is complying in this censorship is beyond me.
I am deeply suspicious of the “breakdown” of the videolink making el-Masri’s evidence in person “technically impossible” after days in which the US government tried to block that evidence. I am also deeply suspicious of the strange fact that unlike other witnesses with video problems, there was no rescheduling. Video and sound quality has been deplorable for several defence witnesses. In a world where we have all got used to videocalls this last few months, the extraordinary failure of the court to operate everyday technology is a level of incompetence it is difficult quite to believe in.
Finally and more importantly, what constitutes evidence?
Lewis consistently and repeatedly quotes the words of Luke Harding and David Leigh to witnesses, more or less every day, yet Leigh and Harding are not in the witness box to be cross-examined on their words. As you know, I am absolutely furious that Lewis has been allowed to repeat Harding’s words about the conversation in the El Moro restaurant to witness after witness, but that John Goetz, who was actually part of the conversation and an eyewitness, was not permitted by the court to testify on the subject. That is absolutely ludicrous.
Finally, we have the affidavits submitted by Kromberg and Dwyer on behalf of the US government. These are apparently treated as “evidence”. Lewis specifically categorised Dwyer’s proof free assertion in Dywer’s affidavit that informants had been harmed, as “evidence” this had happened. But how can these affidavits be evidence if the authors cannot be cross-examined on them? One of the defence counsel told me on Friday that Kromberg will not be made available for cross-examination, as though they had just been told of that. It is not right that an affidavit full of highly dodgy statements and propositions should be accepted as evidence if the author cannot be challenged. The whole question of “evidence” in this case needs a fundamental rethink.
On another point, I was very pleased Nicky Hager testified under oath that in the cables he redacted “strictly protect” designation of names was used to prevent political embarrassment, as the prosecution has repeatedly claimed that the 134,000 unclassified and/or redacted cables in the original limited mass cable release by Wikileaks included names marked “strictly protect”. This is not a security classification. As someone who operated the near identical UK system for over 20 years and held the very highest levels of security clearance, and frequently in that period read American material, let me explain to you. Any material which contained the name of someone who would be at risk of death if published, or which would create real and acute danger to the national interest, would by very definition have been classified “Secret” or “Top Secret”, the latter generally relating to intelligence material. All of the Chelsea Manning material was at a level of classification below that.
Furthermore as Daniel Ellsberg pointed out, and I was very well used to, there exists separately to the classification a distribution system which limits who actually gets the material. The Manning material was unlimited in distribution and therefore available literally to tens of thousands of people. That again could not have happened if it contained the dangers now claimed.
“Strictly protect” is nothing to do with security classification, which is what protects national security information. As Hager said, its normal use is to prevent political embarrassment. As in Australasia, it is a term largely used to protect their secret political assets. Here is an example from a Wikileaks cable which I believe is one of those in the specific release which the prosecution is citing.
As you can see, nothing whatsoever to do with the safety of informants in Afghanistan. Much more to do with other objectives.
I am very glad Hager did raise the real use of “strictly protect”, because I have been waiting for the right moment to explain all that.
So that is my account of Friday, published on Monday. It is perhaps fortunate that normally I don’t have the luxury of time in publishing the reports. Otherwise they might all ramble on at this length.
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I have to confess that after the last court session of another tough week (and yesterday was a particularly emotional and startling court day) I went to the pub with a friend after court yesterday rather than start writing. So Friday’s report this afternoon.
Although Julian’s days in court are horrible in some ways, with 5am starts, strip searches and shackling for transport in a kind of upright fridge inside an armoured serco van, at least he gets to see us all and after the final session he gave John Pilger and I a raised fist salute as they took him down. It has definitely been better for him than effective solitary confinement all this time. Wondering what he is thinking right now back locked in his Belmarsh cell.
