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Home > Uncategorised > UK-USA: Julian Assange Hearing: Day Three

UK-USA: Julian Assange Hearing: Day Three

Professor Paul Rogers on Trump’s politically motivated prosecution

Thursday 10 September 2020, by siawi3

Source: https://popularresistance.org/julian-assange-hearing-day-three/

Julian Assange Hearing: Day Three

By Defend Wikileaks.

September 9, 2020

Above photo: NYT.

NOTE: The last event that Kevin Zeese was organizing was a webinar on Julian Assange and the War on Journalism. Kevin recognized the critical importance of protecting journalists and our right to know. He likens this case to the John Peter Zenger case in the 18th century that established freedom of the press. The prosecution of Assange will determine whether or not journalists will be able to publish the truth without fear of prosecution.

Hereis the video of the webinar, “Assange Extradition and the War on Journalism:” 1:36:41

Professor Paul Rogers on Trump’s politically motivated prosecution

Paul Rogers, Emeritus Professor of Peace Studies at Bradford University, took the stand by video link to testify about Julian Assange’s political views and how they factor into the Trump administration’s prosecution of Assange for publishing.

Rogers reviewed Assange’s speeches, including an anti-war speech in 2011 in London and a speech to the UN following the release of Iraq and Afghan war logs, as well as Mairead Maguire’s nomination of Assange for the Nobel Peace Prize in 2019. LINKs. Rogers concluded that Assange’s views don’t fall into traditional liberal or conservative belief systems but are rather more libertarian, anti-war, and based on values of transparency and accountability.

On the stand, Rogers talked about how WikiLeaks put these values into practice with the war logs publications, and he contextualized the releases with changing opinions in America regarding the wars in Iraq and Afghanistan:

“Possibly the most important part of the whole thing,” he said, was that WikiLeaks’ releases showed 15,000 previously uncounted civilian casualties, “bringing to the American public a very disturbing aspect of the whole war.”

As Rogers puts it in his statement,

The political objective of seeking to achieve greater transparency in the workings of governments is clearly both the motivation and the modus operandi for the work of Mr Assange and the organisation WikiLeaks. Its manifestation, as is set out in the study by Professor Benkler, has constituted a wholesale alteration of accessing and making available for public information, the secrets that governments wish to remain unknown to their general populations. The subject matter of the charges Mr Assange currently faces involve strong examples of the clash of these positions both in their content and scope, and in the reaction of government.

In his oral testimony, Rogers explained that these views and motivations put him in contrast with successive U.S. administrations but particularly in contrast with the Trump administration.

It is clear that Assange is being opposed because of the success of WikiLeaks in bringing information to the public, he said. This is dangerous to the Trump administration: “the root of it is that Assange and what he stands for represents a threat to normal political endeavor.” In addition to opposing Assange’s words and views, the fact that Obama didn’t prosecute should to some extent be considered in why Trump is prosecuting.

Prosecutor James Lewis QC sought to undermine Assange’s political views by bringing up his views on corporations and NGOs, but Rogers explained that “political opinion” isn’t just about government leaders, that the definition of political opinion has changed significantly in the last 50 years, and that Assange has a view on “transnational elites.”?Asked if simply being a journalist necessitated political opinions, Rogers explained that it’s a complex question, that deciding what to publish and what not to constitutes a political opinion, but Lewis complained that his answers were too long, not yes or no.

Lewis further sought to portray Rogers as biased toward Assange and the defense. He asked why Rogers didn’t include in his statement, in which he referenced views of other experts like Noam Chomsky and Carey Shenkman, the views of assistant U.S. attorney Gordon Kromberg, which defended the prosecution of Assange as a criminal matter, not a political one.

Rogers responded that he takes it as read that federal prosecutors at the lower level act in good faith, that they do as they’re instructed in accordance with the law, but that the wider political context — namely that the Obama administration didn’t prosecute and the Trump admin did, and the Trump administration represents a marked shift in the U.S. political situation — far outweighs the statements of a U.S. attorney.

The prosecution then suggested that the Obama administration may not have prosecuted Assange because he was in the Ecuadorian Embassy at the time:

Lewis: Was it possible to arrest Mr Assange in 2013?
Rogers: Is it necessary to be able to arrest someone to bring a prosecution?
Lewis: What would be the point if he’s hiding in the embassy?
Rogers: Well, to put pressure on him. It would have made very good sense to bring it at that time, to show a standing attempt to bring Mr Assange to justice.

Lewis reviewed the same items as he did with Feldstein yesterday, including WikiLeaks’ lawyer and editor suggesting they still believed charges were possible, but again and again Rogers brought the discussion back to the wider context, and the fact that the Trump administration’s views more broadly have to be considered. Statements by then-CIA director Mike Pompeo, then-Attorney General Jeff Sessions and others have to be part of the determination. Rogers also referenced Obama’s commutation of Chelsea Manning’s sentence. The Trump administration wasn’t happy about that, but a commutation can’t be reversed by a subsequent administration, so this could be Trump’s way of responding to that.

Rogers hammered home that by calling this a “politically motivated prosecution,” he isn’t saying that lower-level federal prosecutors are acting in bad faith. Rather, he said, the influence comes from the top down.

Court is in recess for lunch. Trevor Timm of the Freedom of the Press Foundation will testify after the break.
Trevor Timm: These charges would ‘radically rewrite’ the First Amendment

Founder of the Freedom of the Press Foundation, which advocates for reporters’ rights and tracks violations to press freedom across the United States, Trevor Timm took the stand by videolink this afternoon to talk about the dangers the indictment against Assange poses to journalists and their sources.

Timm objects to the indictment on the grounds that it threatens to criminalize source protection and the passive receipt of government documents as well as pure publication. He concluded that “It would be a radical rewrite of the First Amendment if the government were to go forward with these charges.”

Protecting your sources

As Timm writes in his statement,

“The decision to indict Julian Assange on allegations of a “conspiracy” between a publisher and his source or potential sources, and for the publication of truthful information, encroaches on fundamental press freedoms.”

Freedom of the Press Foundation has helped many news organizations adopt SecureDrop, an anonymous and secure submission system for sources to safely send documents to journalists undetected. While a largely unused practice when WikiLeaks pioneered it before 2010, major news outlets around the world make use of SecureDrop, and some of them explicitly ask for leaks of government documents.

The way this indictment is written, particularly the charge alleging Assange engaged in a conspiracy with source Chelsea Manning to crack a military computer password in order to remain anonymous, would make this extremely common news gathering illegal. “I don’t think it’s an exaggeration to say this indictment would criminalize national security journalism.”

“Materials journalists often write about and print do not magically land on their desks,” he said. They talk to sources, ask for clarification, ask for more information. “This is standard practice for journalists.”

News outlets and press freedom observers agree. Timm said,

“This is almost a consensus opinion among press freedom groups and media lawyers who have looked at this indictment. This is why newspapers, even those who have criticized Mr Assange, have condemned this indictment.”

Espionage Act: over-broad and over-used

Beyond the effort to criminalize source-protection and news gathering, Timm is extremely concerned about the other charges in the Assange indictment under the Espionage Act of 1917. Some charges criminalize publishing and for soliciting information, and some of the charges are even more broad. “Just the mere thought of obtaining these documents,” Timm said, “the US government is saying is potentially criminal.”

Timm discussed previous efforts to go after journalists under the Espionage Act, efforts which have failed under legal scrutiny. “In each and every case,” Timm said, “the government concluded or was forced to conclude” that an Espionage Act prosecution would violate First Amendment protections, including the Obama administration’s’s 2013 determination not to prosecute WikiLeaks.

Each Espionage Act charge carries 10 years in prison, allows no public interest defense, and only requires the government prove harm could “possibly” have been caused by leaking or publishing.

James Lewis QC, cross-examining Timm for the prosecution, highlighted Timm’s claim in his witness statement that Trump is waging a “war on journalism.” He sought to undercut the claim by pointing out that the U.S. Department of Justice has explicitly said that they do not consider Assange to be a journalist and that they aren’t going after journalists.

Timm responded, “In the US, the First Amendment protects everyone. Whether you consider Assange a journalist doesn’t matter, he was engaging in journalistic activity.”

Lewis tried again, emphasizing that the DOJ specifically went “out of its way” to say they don’t target journalists.

Timm said,

“My opinions are not based on a Justice Department press release but on what is actually contained in the indictment. There are several charges that deal with the mere fact that WikiLeaks had these in their possession. You say there are three charges dealing with publication just of documents with unredacted names, but the rest of the charges deal with all of these document sets, and this criminalizes journalism.

The aspect of criminalizing publication worries me greatly, but there are many other charges that are as worrying or more so, that could criminalize journalistic practice whether you consider Mr Assange a journalist or not.”

Lewis tried to get Timm to comment on the 2011 unredacted publication of the State Department cables, but Timm made clear that whether WikiLeaks has “perfect editorial judgment” shouldn’t matter as to whether the action is illegal. Furthermore, he said, “I certainly don’t think the US Government should be the one to determine whether this was good editorial judgment.”
Trump: Modern-day Nixon

“Trump has the most confrontational approach to the media since Nixon,” Timm said. He referenced Trump tweeting 2,200 times about the press, including calling them the “enemy of the people.” Timm said, “This case is the perfect opportunity for him to create a precedent to punish the rest of the media.

“To me it’s very telling that Trump’s is the first one to try to bring a case like this since the Nixon administration.”

°°°

Source: https://www.counterpunch.org/2020/09/10/assanges-third-day-at-the-old-bailey-bias-politics-and-wars-on-journalism/

September 10, 2020

Assange’s Third Day at the Old Bailey: Bias, Politics and Wars on Journalism

by Binoy Kampmark

Photograph Source: thierry ehrmann – CC BY 2.0

The third day of extradition proceedings against Julian Assange at the Old Bailey resumed on the point of politics. Assange as a figure of political beliefs; Assange as a target of the Trump administration precisely for having them. The man sketching the portrait was Paul Rogers, Emeritus Professor of Peace Studies at Bradford University.

It is no mean feat trying to pin down Assange’s political system. Leftward, rightward, with resistance to the centre? Lashings of libertarianism; heavy doses of anti-war and holding the powerful to account? Such figures tend to be sui generis. In his submitted statement to the court, Rogers suggests a uniform theme. “The political objective of seeking to achieve greater transparency in the workings of governments is clearly both the motivation and the modus operandi of Mr Assange and the organisation WikiLeaks.”

On the stand, Rogers described the Assange method of influence and disruption: the release of the war logs, their influence on public opinion regarding the US imperium’s engagements in Iraq and Afghanistan, the revelations of 15,000 unaccounted civilian casualties. The butcher’s bill of the imperium, in other words, was laid bare by the WikiLeaks’ releases.

For Rogers, this approach jarred with various US administrations, but none more so than that of Trump’s. Assange’s entire approach and “what he stands for represents a threat to normal political endeavour.”

James Lewis QC for the prosecution made his effort to narrow, clip and sharpen the focus on Assange, questioning the expanse of political belief being attributed by Rogers. At times, the prosecution seemed suspended in a time capsule, suggesting, for instance, that political opinions were only applicable to governments and leaders. Rogers preferred a more complex picture: the evolving nature of what political opinion might constitute (for instance, it could include “transnational elites” and attitudes towards corporations). The issue of publishing an item or not could also constitute a form of political opinion.

Lewis then went on the attack, grumpy at the length of Rogers’ responses and suggesting that his testimony was biased towards the defence. Why had he omitted the views of such individuals as US assistant attorney Gordon Kromberg, who argued that prosecuting Assange had been a criminal rather than political matter? Again, Rogers took preferred the broad approach. Prosecutors of a certain rank tend to mimic the views of their superiors – that is their due. What mattered were those higher-ups who had initiated a change in policy regarding WikiLeaks to instigate a “politically motivated prosecution”. This could be demonstrated with some plausibility by considering the wider political context of different administrations. The Obama administration had set its heart on not prosecuting Assange; those in the Trump administration had warmed to the idea.

Not quite getting his pound of flesh, Lewis moved on to targeting the reasons why the Obama administration had gone cold on prosecuting Assange. Like many black letter lawyers on this point, the issue of Assange being confined in the Ecuadorean embassy has them in knots. “What would be the point [of arresting Assange] if he’s hiding in the embassy?” posed Lewis. Rogers, rather sensibly, suggested that this would constitute a pressuring move. “It would have made very good sense to bring it at that time, to show a standing attempt to bring Mr Assange to justice.” Lewis had also made a specious point. As investigative journalist Stefania Maurizi points out, individuals such as Edward Snowden have been duly charged despite fleeing the jurisdiction. Practical custody was hardly a necessary precondition to getting that paperwork ready.

Lewis proceeded to till the same ground as that covered in the testimony of Mark Feldstein, attempting to push the suggestion that the case against Assange might yield future charges, at least as believed by himself and his defence team. Rogers offered similar parrying: the Trump administration’s approach to Assange was distinct, its attitudes conveyed through the hostile remarks of former CIA director Mike Pompeo and the then hungry Attorney General Jeff Sessions. A difference in approach might be gathered from President Barack Obama’s commutation of Chelsea Manning’s sentence. This was Trump’s possible counter.

Post-lunch interest then turned to Trevor Timm, Director of Freedom of the Press Foundation. As he points out in the submitted statement, “The decision to indict Julian Assange on allegations of a ‘conspiracy’ between a publisher and his source or potential sources, and for the publication of truthful information, encroaches on fundamental freedoms.” WikiLeaks was a pioneer in secure submission systems such as SecureDrop, one that had been emulated by media outlets such as the Wall Street Journal and Al Jazeera.

It was incumbent upon journalists that they “develop relationships with their sources” and attempts to punish publishing activity arising from the use of “leaked documents of public importance” would face First Amendment difficulties.

The Trump administration, however, had proved bolder than its predecessors. The Espionage Act had been previously floated at such journalists as James Bamford, Ben Bradlee, Seymour Hersh and Neil Sheehan. It took Assange’s arrest and charging in 2019 to break with tradition.

The indictment, particularly in alleging that Assange had engaged in a conspiracy with Chelsea Manning to crack a military computer passport for reasons of remaining anonymous, would criminalise a common news practice and the whole pursuit of national security journalism. Were the prosecution permitted “to go forward, dozens of reporters at the New York Times, Washington Post and elsewhere would also be in danger.”

Lewis took umbrage at Timm’s claim, outlined in his statement, that Trump had engaged in an enthusiastic “war on journalism”. The FPF director was unsparing, suggesting that the indictment of the WikiLeaks publisher was part of this war, “and it is no exaggeration to say the First Amendment itself is at risk.” To Lewis, Timm replied with a salient reminder that Trump had tweeted 2,200 times about the press, describing them at stages as the “enemy of the people”. It was “very telling that Trump’s is the first one to try to bring a case like this since the Nixon administration.”

The prosecution preferred returning to that exhausted nag of an idea: that Assange could not be seen as a journalist. A form of fallacious logic came into play: the US Department of Justice had no interest in prosecuting journalists and would be breaching their own prosecutorial guidelines in doing so; Assange was not a journalist, therefore showing appropriate discrimination.

Timm had an appropriate response to this nonsensical approach. “In the US, the First Amendment protects everyone. Whether you consider Assange a journalist doesn’t matter; he was engaging in journalistic activity.” And if the DOJ was in breach of federal rules, it should follow that they be held accountable.

Timm also refused to ingest the prosecution line that the indictment was sufficiently narrow to only cover the publication of documents that had revealed the names of informants working for the US. Other charges in the indictment focused on criminalising the act of possessing the documents. That every claim would implicate journalists across the spectrum, as would “the mere thought of obtaining these documents”. A sinister, dangerous implication.

The prosecution was also caught up in what a “responsible journalist” might do. While the issue of unnecessarily publishing the name of a third party thereby endangering that person might raise matters of ethical responsibility, that, suggested Timm, was a separate question “from what is illegal or legal conduct.” A previous attempt to criminalise publishing the name of a US intelligence source had been made, by Senator Joseph Lieberman among others, in 2010 as a direct response to the WikiLeaks disclosures. But the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act never became law.

As for whether WikiLeaks had behaved appropriately or not in publishing the entire tranche of uncensored US diplomatic cables, despite it not being responsible for leaking the password to the relevant encrypted file containing the documents, Timm was firm. Governments should not have a hand in making such editorial judgments; the question centred on illegality, something which WikiLeaks could not be accused of.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.