Editors note: Fidel Narvez served as Ecuadors consul in the UK from 2010 until July 2018. He helped get Julian Assange political asylum, and regularly communicated with the WikiLeaks publisher when he was trapped in the London embassy. In a previous article for The Grayzone, Narvez debunked 40 media lies and distortions about Assange. In this piece, he summarizes the key points from the British extradition hearings against Assange in September 2020.
At the end of the hearings that seek to extradite journalist Julian Assange to the United States, on October 1, his defense team should have felt triumphant. Because with more than 30 witnesses and testimonies, throughout the whole month of September, they gave a beating to the prosecution representing the U.S.
If the case in London were decided solely on justice, as it should in a state based on law, this battle would have been won by Assange.
However, this trial of the century is, above all, a political trial, and there remains the feeling that the ruling was made beforehand, regardless of the law.
The court kicked off on September 7 with hundreds of protesters outside, in contrast with the restrictions that the court imposed inside in what is the most important case against the freedom of expression in an entire generation.
It only permitted the entry of five people on the list of family members, and five people from the public, who were put in an adjacent room, where they were barely able to follow the video transmission.
The judge Vanessa Baraitser, who is overseeing the case, without a convincing reason cut the access to the video stream that had previously been authorized to nearly 40 human rights organizations and international observers, including Amnesty International, Reporters Without Borders, and PEN International.
Each day, starting at 5 am, selfless activists stood in line so that observers like Reporters Without Borders, for example, could enter and take one of the five available seats. Thanks to them, and to family members of Assange, I was able to be in court to attend the majority of the hearings.
Julian himself was also woken up, every day, at 5 am and, naked and handcuffed, subjected to humiliating inspections and x-ray scans, before being put into a police car and crossing through London traffic for more than an hour and a half.
At 10 am, when court was finally in session, Julian had already endured five hours of insult, before being put in a glass cage for the rest of the day.
To communicate with his lawyers, Julian had to get on his knees to talk to them through a slit in the cage, just a few meters away from the ears of the prosecutions attorneys something that clearly violates due process.
The defense began by requesting deferment of the hearings, in light of the fact that the U.S. had filed a new extradition request at the last minute, with new accusations that not Assange himself was able to look over.
In the previous six months, Julian had practically no access to his lawyers. The judge, however, rejected any deferment.
The defense had based its strategy on proving that the legal process was being abused in many interrelated ways. In this extensive summary, allow me to explain 10 reasons that I identified as important factors against the extradition.
For this exercise I have relied, furthermore, on the reporting of American journalist Kevin Gosztola and that of the former British diplomat Craig Murray, next to whom I shared a seat in the court.
Julian Assange would be prosecuted under the Espionage Act of the United States for a political crime, which is excluded from the extradition agreements between the United Kingdom and U.S.
The U.S. attorney generals office has furthermore said that Assange, as a foreigner, would not be able to exercise the right of the First Amendment. That is to say, punishments apply to foreigners in the U.S., but not legal protections.
The director of the Freedom of the Press Foundation, Trevor Timm, told the court that the extradition of Assange would be the end of national security journalism because it would criminalize all reporters who receive secret documents.
He criticized the accusation that having a SecureDrop is a crime, as The Guardian, Washington Post, New York Times, and more than 80 other news organization, including the International Consortium of Investigative Journalists, also currently use SecureDrop.
Timm said the Department of Justice has a political orientation, that the prosecution cannot decide who is a journalist and who is not, and that the charges against Assange would radically rewrite the First Amendment.
This was also affirmed in the written testimony by the director of the Knight First Amendment Institute at Columbia University, Jameel Jaffer, who insisted that the accusation against Assange is meant to discourage journalism that is essential for democracy, and represents a grave threat to the freedom of the press.
The professor of journalism and former investigative reporter Mark Feldstein testified that leaks are a vital element of journalism, that the collection of classified information is a standard operating procedure for journalists, and that WikiLeaks publications are constitutionally protected.
The US lawyer Eric Lewis, a former law professor at Georgetown University, noted that the Obama administration had finally decided not to try Assange Assange because of what is known as the New York Times problem that is to say, there was not a way to prosecute him for publishing classified information without the same principle applying to many other journalists.
Lewis testified that the Trump administration had put pressure on prosecutors from the Eastern District of Virginia, and cited a New York Times article that referenced Matthew Miller, the former Justice Department spokesman under Obama, who warned the case could establish a precedent that threatens all journalists.
This same concern was expressed before the court by the lawyer Thomas A. Durkin, a former assistant United States attorney and professor of law, who warned that the Trump administration ordering the reopening of the case was clearly a political decision.
Both Durkin and Lewis affirmed that Assange would be condemned for life, given that the sentences for spying in the U.S. are generally life in prison, and the most lenient are from 20 to 30 years.
The lawyer Carey Shenkman, who wrote a book about the history and use of the Espionage Act, testified that the law is extraordinarily broad and one of the most divisive laws of the United States. Never, in the history of the Espionage Act, has there been an accusation against an American editor and neither has there been an extraterritorial accusation against a non-American editor.
The prosecution, for its part, in what was one of the most terrifying admissions heard in the court, recognized that, while the Espionage Act had never been used against a journalist, its extensive scope would allow them to use it in this occasion.
The lawyer Jennifer Robinson, a member of Assanges legal team, submitted to the court a written testimony detailing an offer of a pardon by President Trump, in exchange for Assange identifying the source of the leaks that WikiLeaks published from the Democratic National Committee (DNC) in 2016.
The offer was made through the US Representative Dana Rohrabacher during a visit to the embassy of Ecuador. The congressman had explained that the information from Assange about the source of the leaks would be interest, value, and assistance for the president, and would resolve the ongoing speculation about Russian involvement.
The offer from the White House demonstrated the politicized nature of the case, given that the charges were made after Assange refused to provide any information.
The award-winning journalist Patrick Cockburn, who has written for The Independent for more than 30 years, submitted written testimony in which he said that Assange is being persecuted because he exposed the way the US, as the worlds sole superpower, really conducted its wars something that the military and political establishments saw as a blow to their credibility and legitimacy.
For his part, the journalist Ian Cobain, who worked for The Guardian during the publication of WikiLeaks materials in 2010, said in written testimony that Assange is being persecuted because, There is always the understanding one that is so clear that it needs not be spoken that anyone who has knowledge of state crimes, and who comes forward to corroborate allegations about those crimes, may face prosecution.
The renowned professor Noam Chomsky told the court in written testimony that Assange has performed an enormous service to all the people in the world who treasure the values of freedom and democracy and who therefore demand the right to know what their elected representatives are doing. His actions in turn have led him to be pursued in a cruel and intolerable manner.
Yet, if there remain doubts about the political nature of the case, there was also the Judge Baraitser herself, who in the court said her original intention was to have the verdict before the U.S. presidential elections, and who asked the defense and the prosecution what implications a ruling would have had after said elections.
Why is a British judge, who is supposed to impart justice solely based on facts and evidence, waiting for a purely political event in another country to reveal her verdict?
The legendary leaker of the Pentagon Papers, Daniel Ellsberg, told that court that he totally disagrees with the good Ellsberg / bad Assange theory. He said Julian did everything possible to redact and withhold damaging information, working with media outlets in the redaction process.
The Pentagon Papers were top secret, but WikiLeaks documents were not classified as restricted and hence, by definition, there should be nothing that is truly sensitive.
Ellsberg said that Assange withheld 15,000 files from the Afghan War Diary to protect names, and also requested help from the State Department and Defense Department to redact names, but the U.S. government refused to help, despite the fact that it is standard journalistic practice to consult with officials to minimize damage.
In the court-martial of Chelsea Manning, Ellsberg noted, the Defense Department admitted that it could not identify a single death caused by WikiLeaks publications.
The co-founder of the organization Iraq Body Count (IBC), John Sloboda, whose work has been recognized by the United Nations and European Union, testified that he worked with WikiLeaks and media outlets to prepare the Iraq War Logs before their publication. Sloboda recounted that Assange demanded and directed a very strict redaction process to prevent possible harm.
WikiLeaks used a software that was able to edit thousands of documents, identifying each word that was not in the English-language dictionary and automatically removing it, such as Arab names for example. Then, the files were scanned again to remove occupations, such as doctor or driver, in order to better protect identities.
This editing took weeks and was a meticulous process, Sloboda recounted. There was considerable pressure on WikiLeaks because other media outlets wanted to push it to publish more quickly, but the position of Assange and WikiLeaks was to be excessively cautious.
John Goetz, the current director of investigations for German public television NDR, confirmed that when he worked with Assange in 2010, representing Der Spiegel, WikiLeaks had a rigorous redaction process, and that Assange was obsessed with keeping classified documents secure and preventing harmful disclosures.
I remember being very irritated by Assanges constant and endless reminders that we needed to be safe, and that WikiLeaks ended up removing more things than even the Defense Department, Goetz said. Assange frequently discussed how to find confidential names so that we can redact them and take measures to make sure that nobody is at risk.
The journalist Nicky Hager, author of the book Other Peoples Wars: New Zealand in Afghanistan, Iraq and the war on terror, testified that one of his jobs was to identify any cable that should not be released for reasons like the personal security of people mentioned, and that WikiLeaks personnel were committed to a careful and responsible process.
He was shocked to see the level of care that they were taking to redact information that could hurt third parties. People were working in silence for hours and hours reviewing documents, he recalled.
The veteran Italian journalist Stefania Maurizi, whose persistent reporting showed how British prosecutors pressured their Swedish counterparts to not interrogate Assange in London, said in her written testimony:
I myself was given access to 4,189 cables I sat down with Mr Assange and went through the cables as systematically as possible Everything was done with the utmost responsibility and attention That was the first time I had ever worked in any publishing enterprise involving strict procedures of that kind. Even experienced international colleagues found the procedures burdensome, involving protections considerably beyond those which any of them were accustomed to exercising Not even the work done by close colleagues about the Italian mafia required such extreme precaution and security, it never rose to those levels.
The British-American lawyer Clive Stafford Smith, the founder of the human rights organization Reprieve, testified that WikiLeaks shined a light on torture of detainees in Guantnamo, and revealed that many were not terrorists, but rather had been arrested in Afghanistan in a bounty system. The worst accusations had been staged against prisoners, who were sometimes forced to admit to them under torture.
Stafford Smith explained that it was thanks to WikiLeaks that the use of these torture techniques are known, such as the pulley, or hanging someone by their wrists until their shoulders are dislocated, and cited as an example Binyam Mohamed, a UK citizen whose genitals were on a daily basis cut with a shaving razor.
The lawsuits against the United States drone assassination program in Pakistan would have been impossible without WikiLeaks, Stafford Smith said.
John Sloboda of Iraq Body Count said that the Iraq War Logs constitute the greatest contribution to public knowledge about civilian casualties in Iraq, revealing around 15,000 deaths that had previously been unknown.
Patrick Cockburn, of The Independent, insisted, Wikileaks did what all journalists should do, which is to make important information available to the public, enabling people to make evidence-based judgments about the world around them and, in particular, about the actions of their governments.
The files published by WikiLeaks convey the reality of war far better than even the most well-informed journalistic accounts, Cockburn added, showing how the dead were automatically identified as terrorists caught in the act, regardless or evidence to the contrary.
The former journalist Dean Yates, who was chief of Reuters Baghdad bureau in 2007 and 2008, said in his written declaration that it was not until 2010, when WikiLeaks published the famous Collateral Murder video, that he knew the truth about the death of his journalist colleagues Namir Noor-Eldeen and Saeed Chmagh.
Yates recounted the attempts by the United States to cover up the truth, and that the military only showed him part of the video. The only person who told the truth was Assange.
Had it not been for Chelsea Manning and Julian Assange, the truth of what happened to Namir and Saeed, the truth of what happened on that street in Baghdad on July 12, 2007, would not have been brought to the world, Yates said. What Assange did was 100% an act of truth-telling, exposing to the world what the war in Iraq in fact was and how the US military behaved and lied.
On this point, Judge Baraitser interrupted Yates testimony, due to repeated pressure by the prosecution. It is ironic that a court would seek to criminalize journalism, while refusing to hear about the crimes exposed by journalism.
That is what happened in the much-anticipated testimony by the German-Lebanese citizen Khaled el-Masri, who was kidnapped and tortured by the CIA and who for technical problems with the online transmission was not able to testify in person.
The judge stopped listening to him, also under pressure by the prosecution. This is what provoked an indignant reaction from Julian Assange, who shouted, I will not censor the testimony of a torture victim before this tribunal I will not accept it!
The prosecution, finally, allowed the summary of the written statement to be read: El-Masri was brought to a CIA black site in Afghanistan, where he was beaten, strip searched, sodomized, force-fed with a tube through his nose, and subject to total sensory deprivation and other cruel forms of inhumane treatment for six months.
Finally, when the torturers realized that they had the wrong man, El-Masri was abandoned with his eyes blindfolded on a remote road in Albania. When he returned to Germany, his house was empty and his wife and kids had gone.
The journalist John Goetz, on German public television, demonstrated that El-Masris story was true, and tracked down the CIA agents who were involved. German prosecutors sent out orders for the arrest of the kidnappers, but they were never executed.
WikiLeaks publications proved that the United States put pressure on the German government to block a legal investigation into the crime.
The European Court of Human Rights, using the WikiLeaks cables, agreed with El-Masri, who wrote to the court:
WikiLeaks publications have been essential to accept the truth of the crime and the cover-up without dedicated and brave exposure of the state secrets in question, what happened to me would never have been acknowledged and understood.
Three of the 18 charges against Assange accuse him specifically of publishing US diplomatic cables without redactions. But the defense and its witnesses showed that WikiLeaks was not the first media outlet to publish these files, and those who did it were not prosecuted. WikiLeaks was careful to encrypt the archive, but actions out of Assanges control led to its publication.
The German computer science professor Christian Grothoff testified about an investigation into the chronology of the events of 2011. Grothoff reviewed the timeline: In the summer of 2010, WikiLeaks shared the cables with The Guardian journalist David Leigh, through a file on a temporary website protected with a very strong encryption password. Assange only wrote part of the password on paper. WikiLeaks and its media partners began to publish the edited cables in November 2010.
WikiLeaks suffered constant attacks on its servers and mirror copies of its archive were created around the world to protect the information. Those copies were not accessible without a secure code. In February 2011, The Guardian journalists David Leigh and Luke Harding published a book in which the title of a chapter was the complete password for the unredacted cables. When the book published the key, WikiLeaks no longer had the ability to delete the mirror archives or change the encryption.
On August 25, 2011, the German newspaper Der Freitag published an article in which it explained that the password revealed by Leigh and Harding could be used, and in a few days the complete archive, without redaction or editing, appeared on Cryptome.org, a page created in the United States. The websites MRKVA and Pirate Bay also published copies of the archive. On September 1, the U.S. government accessed the unredacted cache for the first time, through Pirate Bay.
Professor Grothoff testified that he had not been able to find a single example of the code published online before The Guardian journalists published it in their book.
Assange and his WikiLeaks colleague Sarah Harrison called the U.S. State Department to warn that the unredacted cables were online, but their warnings were ignored. The journalist Stefania Maurizi recounted in her testimony that she was meeting with WikiLeaks the same day that she found out that the cables had been published, out of Assanges control.
I remember that when I arrived there were fierce discussions as to what to do. Julian was clearly acutely troubled by the situation with which Wikileaks was faced, she recalled. For more than a year, he had been taking all of the possible measures to prevent this. Assange was himself making urgent attempts to inform the (US) State Department the information was circulating out of Wikileaks control.
WikiLeaks had to release the cables on September 2, 2010, and published an editorial note indicating that A Guardian journalist has negligently disclosed top secret WikiLeaks decryption passwords to hundreds of thousands of unredacted unpublished US diplomatic cables.
The journalist Glenn Greenwald, who won the Pulitzer Prize for the Edward Snowden revelations, wrote that day:
Once WikiLeaks realized what had happened, they notified the State Department, but faced a quandary: virtually every governments intelligence agencies would have had access to these documents as a result of these events, but the rest of the world including journalists, whistleblowers and activists identified in the documents did not. At that point, WikiLeaks decided quite reasonably that the best and safest course was to release all the cables in full, so that not only the worlds intelligence agencies but everyone had them, so that steps could be taken to protect the sources.
The journalist Jakob Augstein, editor of Der Freitag, confirmed in his written testimony that, in August 2010, his media outlet published an article titled Leak at WikiLeaks, about the about the release of the password by The Guardian journalists. Assange called him and requested that he not publish anything that could reveal where the archive could be found, worried about the security of the informants of the U.S. government.
Finally, John Young, the representative of Cryptome.org, confirmed in his written testimony that his U.S.-based website first published the unredacted diplomatic cables, before WikiLeaks republished it:
I published on Cryptome.org unredacted diplomatic cables on September 1, 2011 and that publication remains available at the present no US law enforcement authority has notified me that this publication of the cables is illegal, consists or contributes to a crime in any way, nor have they asked for them to be removed.
One of the charges against Julian Assange is that he supposedly conspired with the soldier Chelsea Manning to obtain greater access to government databases y hid his identity to do it.
The argument is that Manning spoke in an encrypted chat with the user Nathaniel Frank (who the United States alleges, but has not proved, was Assange) and requested help from him to open an encrypted part of a password. The defense argues that Manning asked for help to protect her identity, something that journalists are obligated to do with their sources.
The defense brought before the court the best possible expert on the material: Patrick Eller, a forensic digital expert who worked for two decades for the U.S. Army and now is a professor of forensic evidence and the president of Metadata Forensics, which investigates civil and criminal cases. Eller reviewed the transcriptions from the court-martial of Manning in 2013 and came to the following conclusions:
a) The attempt to decrypt the password was technologically impossible and computationally not viable in March 2010, when the conversation took place between Manning and Nathaniel Frank.
b) Even if it were feasible, it would not have given Manning greater access to the government databases. At the date of Mannings chat with Nathaniel Frank about the decryption of the key, Manning had already leaked all of the documents to Wikileaks, excluding the State Department cables, that were being stored on a network that did not require login information, because Manning already had access to it.
c) And even if it were feasible, the purpose would not have been to conceal Mannings identity. What is much more probable, testified Eller, who interviewed members of Mannings military unit, was that they wanted to use the administrative account to download unauthorized movies, music, and games, and this required decrypting the password. Manning, Eller said, was the person to go to in her unit to help her colleagues do this.
In his testimony, Eller also established that neither he nor the U.S. government can prove that Nathaniel Frank was truly Julian Assange, or any other person.
Julian Assange would be tried in the Spy Court of the United States, where national security cases go, and which in 2010 opened a secret investigation against WikiLeaks and Assange, for which he requested political asylum from Ecuador.
This is the Eastern District of Virginia, where the CIA and major national security contractors are based. The jury, therefore, comes from the place with the largest concentration of the U.S. intelligence community, where Assange would have no change of getting a fair trial.
Daniel Ellsberg told the court that those accused of espionage cannot even argue reasons that justify their actions. I did not have a fair trial, no one since me had a fair trial on these charges, and Julian Assange cannot remotely get a fair trial under those charges if he were tried.
This was also confirmed by the lawyer Carey Shenkman, who told the court that the Espionage Act does not allow the accused to argue their defense in the public interest.
Trevor Timm noted in the court that 99.9 percent of grand juries make charges based on what the prosecution establishes, and that a study of 162,000 grand juries revealed that just 11 rejected the request of a federal prosecutor to press charges.
Eric Lewis said the judge of the Eastern District of Virginia would give Assange an extremely aggressive sentence.
The professor Mark Feldstein told the court that a large amount of academic material demonstrates that grand juries are maleable and do what the prosecutors tell them to do.
By being accused of spying, Julian Assange would be imprisoned under Special Administration Measures (SAMs). He would be in solitary confinement, would not be allowed any contact with family, and would only be able to speak with lawyers, who could not be able to communicate any messages from him or would face criminal punishment. Such conditions are a sentence to a living death.
For his entire trial, Assange would be imprisoned in Alexandria Detention Center (ADC), and he would later serve a life sentence in the maximum security prison ADX Florence in Colorado.
The prosecution has tried to whitewash the conditions, in the written testimony of the assistant United States attorney in the Eastern District of Virginia, Gordon Kromberg, who tried to depict the hell of maximum-security prisons as friendly, which the defenses witnesses said was a fiction.
Yancey Ellis, a former defense lawyer for the U.S. Marines, who has defended many clients from ADC, told the court that the situation with Assange would be cruel and oppressive, with an unknown time in solitary confinement, where he would be subjected to torture and inhumane and degrading punishment.
Assange would pass 22 to 23 hours per day without any contact in a cell of less than five square meters. Normally, food is eaten inside the cell, and he would not have access to therapeutic programs of any kind. There is no outside area for recreation or exercise in the Alexandria prison.
The lawyer Joel Sickler, an expert on prison conditions and founder of the Justice Advocacy Group in Virginia, who also has clients in ADC and is familiar with ADX Florence prison in Colorado, told the court that Assange absolutely wont have communication with other inmates. He added, Your whole world is the four corners of that room.
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Julian Assange faces the 'trial of the century': 10 reasons why it threatens freedom of speech - The Grayzone
