I observed Julian Assange’s extradition hearings in February and September 2020 on behalf of the International Federation of Journalists and the National Union of Journalists. I was also the only reporter whose daily coverage of the court case appeared in a print newspaper. Collected below are some of the longer pieces I wrote about the case.
The Judge’s ruling – 4 January 2021
As Judge Vanessa Baraitser started to deliver her ruling in the Old Bailey’s number two court yesterday, nothing felt right.
Proceedings started late. Julian Assange slumped in the dock, surrounded by bullet-proof glass, his clothes flapping slightly around his diminished frame. The ‘Don’t Extradite Assange’ campaign had decided against a rally outside the court building because of the risk of spreading covid. The very air tasted sour.
As Baraitser intoned her summary judgement, the atmosphere deteriorated. She dismissed the defence case unequivocally, point by point. The protection of those accused of political offences implied by the US/UK Extradition Treaty was worthless in this case. Assange is accused of actions that would be offences in the UK, she told the court. His actions could not be compared to those of an investigative journalist and by dumping data he had adversely affected scores of US contacts.
She declined to consider the uncontested evidence that CIA contacts bugged the Ecuadorian Embassy to snoop on Assange’s meetings with lawyers. And she found ample evidence that a fair trial would be available, once the Wikileaks founder arrived in Virginia.
By now, Assange appeared to be deflating in the dock before our eyes. One sensed a great weight pressing on the usually ebullient shoulders of Edward Fitzgerald QC, who leads Assange’s legal team.
Baraitser’s cautious delivery continued as she reached her conclusion, providing no prompt of a change in her direction of travel.
In September the extradition hearing spent a week considering medical evidence relating to Assange. Much of it was harrowing and, unlike all the other expert statements, written copies were not released to the media – despite formal protests.
Baraitser, however, accepted most of the doctors’ and psychiatrists’ conclusions. Assange has a personal and family history of suicide attempts, he suffers deep, long-term depression. He also has Autism spectrum disorders. These have been managed with some success in HMP Belmarsh, the judge told the court.
Then she turned to conditions in the US ‘supermax’ prison, ADX Colorado, where it is generally accepted Assange would have been sent, if he had been sentenced by a US court.
“Faced with the conditions of near total isolation… I am satisfied the procedures described by the US will not prevent Mr Assange from finding a way to commit suicide and for this reason I have decided extradition would be oppressive by reason of mental harm and I order his discharge”,
The air in court felt suddenly lighter. A broad smile flashed across Assange’s face, and the handful of Wikileaks staff in court were animated anew.
Clair Dobbin, the barrister representing the US government, was quick to her feet, insisting that an appeal against the ruling would be immediately forthcoming. Her interjections are always highly controlled, but anger apparently underscored her words. Edward Fitzgerald, meanwhile, had rediscovered his Tiggerish bounce. He requested his client’s immediate release.
That may happen on Wednesday. The court hearing will reconvene at Westminster Magistrates (its real home). Fitzgerald promises to make a case featuring both the deteriorating conditions at Belmarsh and a considerable package of measures to reassure the court that Assange would not abscond.
This is a stunning victory for free speech, common sense and humanity. Assange heard the news from the same dock where the ‘Guilford Four’ were wrongly convicted of murder and sentenced to life imprisonment in 1975. It would be refreshing to think that yesterday’s judgement showcases a new era when British justice can be rightly praised for its compassion, fairness and honesty.
A little restraint with the champagne is required, however, as the response from the National Union of Journalists makes clear. “The judge rejected the defence case that the charges against Assange related to actions identical to those undertaken daily by most investigative journalists”, commented General Secretary, Michelle Stanistreet. “In doing so, she leaves open the door for a future US administration to confect a similar indictment against a journalist.”
It is a prudent caution. Of course, it is hard to imagine a similar circumstances prevailing – the most extensive and damaging national security leaks in history, an ex-CIA director running US foreign policy, and a president whose grasp on reality is tenuous at best.
As became clear during the extradition hearing, however, this conjunction appeared against a backdrop that is increasingly challenging for those who report defence and security issues. Several witnesses described US administrations ‘going into overdrive’ to classify more and more information. Rising levels of hostility to the media have been fuelled by administrations of both stripes increasing enthusiasm for chasing down and denigrating leakers who were clearly honestly intentioned. It makes it hard to believe that Assange will be the last person the US tries to prosecute for acts of journalism.
Assange departed the dock yesterday, wreathed in smiles, having caught a quick chat through the security glass with his partner Stella Morris. He faces challenges too – not least adjusting to freedoms that he has not enjoyed for a decade.
His defence made much of his appreciation of transparency, methodical checking, and concern for the welfare of others. If he chooses to return to public life at some point, my hope would be that he makes these his guiding principles.
The medical evidence – 18 September 2020
Unusual accord in the well of court closed the third September week of Julian Assange’s extradition hearings. The prosecution and defence teams at the Old Bailey’s court ten united to plead to safeguard the privacy of the Wikileaks founder.
The hearings, which will decide whether Assange is sent to the United States to face charges under the Espionage Act, commenced in February. Since the start of September, after a six-month interregnum, the court has been hearing from expert witnesses. Most of these have been called by Assange’s defence team. All have prepared lengthy written submissions to the court. Each expert’s personal appearance (mostly by video link) is to allow for cross examination where their assertions are contested.
As each witness commences giving evidence, the court issues their written statements to media. These are vital to understand how the case will be decided. Most are broader in scope than the verbal testimony and some of the evidence is highly technical.
Last week was mostly occupied with medical evidence. This could be Assange’s best hope of avoiding extradition. In 2018 the Court of Appeal ruled that computer hacker Lauri Love should not be extradited to the United States to face charges because doing so would be: “oppressive by reason of his physical and mental condition”. The judges added: “We accept that the evidence shows that the fact of extradition would bring on severe depression and that Mr Love would probably be determined to commit suicide, here or in America.”
With this in mind, team Assange called the doctors. Four psychiatrists and one physician gave lengthy assessments of Assange’s physical and mental health, drawing on minutely recorded events while he was in ‘healthcare’ at Belmarsh, as well as his personal and family history. At times it made deeply uncomfortable listening. It is uncontested that Assange has suffered from bouts of depression since childhood, exhibits autism spectrum disorder traits, and at times ruminates obsessively about suicide. Some assessments were a good deal more worrying. Assange attempted suicide once long before Wikileaks, and has attempted to gather the means to take his own life since he was detained in Belmarsh.
As we heard the details of this, those of us reporting in court exchanged concerned glances. And when proceedings paused, we had a quick confirmatory chat to remind ourselves of the many well-established guidelines for reporting suicide. Where it is relevant, suicide attempts can be reported, but details about methods of self-harm should be excluded.
Several reporters requested copies of the statements by medical experts from the Clerk of Court. They would not be made public, came the prompt response. Just as quickly, Henry Vaughan from PA Media (the Press Association, as was) put in an application for the release of these documents (see below).
Assange’ s privacy and editorial ethics
A couple of days later, Judge Baraitser invited verbal statements. Edward Fitzgerald QC, Assange’s senior barrister told the court that release of the statements would be a needless intrusion into his client’s privacy. Emily Pennink, another PA court reporter, made a very creditable appeal, telling the judge that: we all worked to strict editorial codes; that we believed that if the statement were important to the court the media needed to properly understand their contents to explain the case; and that keeping them secret is inconsistent with open justice. She stressed that our intention was never to compound the stress and anxiety on Assange through our application, but to be in the best possible position to explain how the case was being conducted.
The judge then asked if there were specific elements of the statements that the media felt they needed to see? She allowed a couple of hours for those of us reporters present to assemble a further written statement.
The challenge was obvious. How could we journalists pinpoint the important elements of documents none had seen? We put our heads together and came up with a list of questions based on components of the verbal evidence suggestive of further important details in the written evidence. Our attempt is also below.
The public justice principle
The relevant case law covering instances of this kind requires a judgement on the nature of the documents in question. Justice should be public, both to promote public understanding of the workings of the law, and to allow scrutiny of the work of the courts. This is known as the ‘public justice principle’.
The presumption is that material laid before the courts is public, but there is no public right to such material.Where parties resist publication of statements before the court, those applying for access must show that disclosure will advance the open justice principle.
Judge Baraitser’s ruling, when it came was no surprise. “The Press Association has not established good reason why the disclosure of the reports will advance the purposes of open justice. If I am wrong about this then the countervailing factors, in this case Mr Assange’s private life, in my view prevents disclosure.”
That skirmish is over.
There is, however, a broader issue that requires enduring vigilance. In the not-so-distant past all statements made to a court were read out. This allowed them to be reported, save where restrictions are imposed. The advent of lengthy written statements, publication of which is resisted, creates fresh scope for justice in the shadows.
It is also questionable whether inviting requests for release of specific elements of statement to which the applicant has no access is consistent with natural justice? A better solution would be to allow a representative journalist to see all papers in a supervised environment within the court. Such review could form the basis of a meaningful application for disclosure.
At very least reporters who witness material being withheld from the media should gird themselves to make similar applications. Secrecy is habit forming. Unless the media forces courts to justify keeping material from the media, the danger is that it becomes the default. It might not be the radical approach to transparency that Assange himself pioneered, but it is no less vital.
Pentagon Papers leaker likens Assange’s actions to his own – 11 September 2021
In 3 May 1972, Daniel Ellsberg spoke at a peace rally in Washington DC. It was a year since he had leaked the Pentagon Papers to the New York Times and the Washington Post revealing that successive Presidents had lied about US involvement in Vietnam.
What Ellsberg – who was played by Matthew Rhys in Steven Spielberg’s 2017 film The Post – didn’t know, as he stepped up to the microphone on the steps of the Capitol Building, was the the crowd had been infiltrated by CIA ‘assets’. Their instructions were to “break both his legs”, or even kill him. President Nixon had personally acquiesced to the planned assault during a meeting with Henry Kissinger.
The attack, however, was aborted as the speakers took to the rostrum. It was not, though, to be the last of the Nixon administration’s dirty tricks to ‘get’ the former Marine, whose whistleblowing did much to bring the Vietnam war to an end.
At the time of the speech, he was already facing charges under the Espionage Act with a 115 years jail term. When his trial started in January 1973 he was forbidden from explaining his motivations for leaking to the court – despite having revealed for the first time the secret bombing of Laos and Cambodia and the gravest lies by a succession of Presidents. And one of Nixon’s senior staff members had secretly offered trial judge Matthew Byrne the top job in the FBI if Ellsberg was convicted.
By chance, his trial ran concurrently with the Senate Watergate Committee, however. Day by day, the hearings in Washington brought the various conspiracies against Ellsberg to light. Eventually Judge Byrne felt he had to intervene. “The bizarre events have incurably infected the prosecution of this case” he ruled. Ellsberg was acquitted ‘with prejudice’ meaning that he could never be tried for those offences again.
It is easy to see why Ellsberg, now 89, sees parallels between his own case and that of Julian Assange. “Wikileaks provided the first unauthorised disclosure of such magnitude for 40 years”, he believes. “I observe the closest of similarities to the position I faced. The (US Government) intended to crush (me) in part in revenge for my act of exposing them but in part to crush all such future exposure of the truth.”
In his evidence to the Wikileaks founder’s ongoing extradition hearing, Ellsberg said: “I have followed closely the impact of (Wikileak’s revelations) and consider them to be amongst the most important, truthful revelations of hidden criminal state behaviour that have been made public in US history. I view the WikiLeaks publications of 2010 and 2011 to be of comparable importance (to the Pentagon Papers).”
Ellsberg worked with Assange at the hight of the Wikileaks. They met several times and Ellsberg held one of the encrypted backup copies of leaked US military files on behalf of Wikileaks.
“I have also spoken to (Assange) privately over many hours. During 2010 and 2011, at a time when some of the published material had not yet seen the light of day, I was able to observe (Julian’s) approach. It was the exact opposite of reckless publication and nor would he wilfully expose others to harm.
“WikiLeaks could have published the entirety of the material on receipt. Instead I was able to observe but also to discuss with him the unprecedented steps he initiated, of engaging with conventional media partners, (to maximise) the impact of publication (so) it might (best) affect US government policy and its alteration.”
Cross-examined for the US government by James Lewis QC, it was put to him that there was a critical difference between himself and Assange. Ellsberg had purposefully kept secret four of the 47 volume of the Pentagon Papers because he did not wish to jeopardise efforts for a negotiated peace in Vietnam.
Ellsberg dismissed out of hand the frequently made assertion that “the Pentagon Papers were good and Wikileaks bad”, robustly stating his view that the government’s behaviour was the same in both cases. If anything, Assange took a more sophisticated approach to redaction than he had been able to, he says.
“For years I was vilified in many quarters”, he told the court. “Only since the Wikileaks revelations have I been praised as some kind of foil to Assange, Chelsea Manning and Edward Snowden”.
He says, however, that Assange uncovered a dark change in US military behaviour. “The most shocking aspect of the Wikileaks’ revelations is that corruption, torture and assassination have become so common that they are not even classified top secret. When I was an officer in the field, or when I was compiling the Pentagon Papers, incidents of this kind would have been given the highest possible classification. Today, they have become so normalised that they are in files to which literally thousands of people have access.”
Ellsberg has always maintained that his actions were those of a patriot. “The oath of office that I took was to defend the constitution of the United States”, he says, making clear that he considers his actions to be true to that commitment.
Nonetheless, he still feels a weight of responsibility for not acting earlier, he says. “I have long regretted not releasing the documents in August 1964, and it is a heavy burden for me to bear. Had I done so that terrible war might well have been averted altogether.”
His whistleblowing did presage a change of direction in US policy, but not before nearly 400,000 military personnel and as many as four million civilians had been killed.
Wikileaks Afghan and Iraq revelations came far more quickly after those conflicts and, according to other expert witnesses to the hearing. They caused a similar sea change in public perceptions of those wars. Ellsberg suggests that the Afghan War Logs exposed the ‘Vietnamistan’ of that conflict in which a military stalemate led to the civilian population no longer been recognised as human beings, resulting in crimes against humanity and mass killings of the worst kind.
Today Ellsberg lives in northern California with his second wife Patricia Marx. His devotion to working for a better world is undimmed. Three years ago he published his third book, The Doomsday Machine: Confessions Of A Nuclear War Planner, about his working life before the the Pentagon Papers. He remains a director of the Free Press Foundation, of which he is co-founder, and retains academic affiliations with two universities.
He also remains in no doubt that he and Assange are brothers in arms. “The prosecution he faces (is) clearly focussed, fairly and squarely, at the centre of political movements of which I regard myself as part and which much of my life has spent committed to pursuing.”
Assange’s persecution is a threat to all journalism – 18 September 2020
It took some time to warm up, but the courtroom duel between James Lewis QC and Professor Mark Feldstein of Maryland University laid bare some fundamental issues for journalists. Both were appearing at the Old Bailey, London: Lewis making the case for the US government that Julian Assange should be extradited; Feldstein, called as an expert witness to explain how journalists work.
Lewis has been at the bar for more than 30 years, and promotes his services with the strapline: “a charming man with a mega brain”.
By way of trying to demolish the testimony and reputation of his opponent, he deployed a classic barrister’s technique. He asked a series of apparently simple questions that led the witness into a trap from which there is no escape without undermining their own evidence. Or at least, that was clearly his hope.
Lewis: “Is it your view Professor, that journalists are above the law”.
Feldstein: “No, sir, it is not”.
Lewis: “And is it your view that a journalist should be allowed to hack someone’s computer to unearth private matters, or burgle their home?”
Feldstein: “No it is not my view”.
Lewis: “So if a journalist helps someone to burgle a home or hack a computer to obtain information, can we agree that they have clearly broken the law?”
Feldstein, after a pause: “It depends on the details, that is where it gets a bit squishy.”
Whether that was quite the denouement Lewis hoped for was unclear, but from Feldstein’s earlier evidence, it was clear how fundamental this point is to reporting. Feldstein described how, during his own distinguished career as a journalist he had frequently been in receipt of leaked material. He said that helping a source to remove material undetected and disguising their part in doing so was ‘standard operating procedure for journalists’ and something he taught his own journalism students.
A moment or two later, the advocate tried a similar manoeuvre.
Lewis: “Will you agree with me Professor, that there are some secrets that a state is entitled to keep? – troop movements in time or war and the nuclear codes, for example?”
Feldstein: “Of course”.
Lewis: “So if someone tries to steal details of troop movements during war, or the nuclear codes, or material that could put people at risk, if is reasonable to consider that a crime”.
The video link over which Feldstein was speaking left this point slightly lost – although Lewis’ rhetorical sleight of hand was clear. The first two instances are unequivocal cases, the third a significantly more conjectural catch all.
Feldstein came back strongly. “If you criminalise news gathering, you are criminalising journalism. It is a moral duty for journalists to protect sources. Many have gone to jail to protect that principle.” The professor went on to say that he thought the US government could, with this case, be trying to create precedents that would allow it to pursue other members of the news media.
This point is the one on which this entire case hangs. The acts for which extradition and prosecution are sought are clearly ones that might have been committed by any investigative journalist. Whether or not you consider Assange to be a journalist, or indeed, if his unredacted publication of leaks was ‘responsible’, are peripheral issues.
Other evidence from Feldstein highlighted what a risk this might be, given the frequency of US administrations considered prosecuting leak-receiving journalists. Richard Nixon hoped to silence Jack Adamson (even considering having him killed), for example and Obama desperately searched for means to get Assange into court.
The previous witness, distinguished human rights lawyer Clive Stafford Smith, clearly illustrated what might be lost if obtaining leaks were criminalised. He described a US system of government that had, since 9/11, sought to classify almost every piece of information in its possession.
His example of how absurd this could be was fascinating. “When I first went to see a British man in Guantanamo Bay he gave me 30 pages on the torture that he had suffered. All of this material was immediately classified on the basis that revealing torture was a threat to (US) national security”.
Stafford Smith argued that the ‘US obsession’ with secrecy post 9/11 meant that much that was classified was simply material that was embarrassing, or provided evidence of bad decision making.
The clear implication was that if being in receipt of classified material without authorisation was criminalised, there would be little to report in the future.
Stafford Smith also vividly illustrated the broader importance of journalism. Revelations from Wikileaks helped end a US assignation programme that had targeted journalists among others, he said. They also provided the basis for ending drone strikes in Pakistan. And he had personally used material leaked by Assange to secure the release of innocents incarcerated in Guantanamo Bay.
The challenge for Assange’s legal team over the three weeks scheduled for the hearing, is to persuade both the judge, and the public more generally, of this case. The witness list looks encouraging. Pentagon Papers leaker Daniel Ellsberg is cited, as is distinguished journalist Patrick Cockburn and Noam Chomsky.
Whether they will be sufficient to persuade the judge, Vanessa Baraitser, remains to be seen. Few decisions to date have gone with the defence. They asked for Assange to sit with them in court, rather than in the bullet-proof dock, and were refused. They sought to have the fresh charges levelled over the summer struck out, and found her unsympathetic. And their request for a three month adjournment to prepare to answer the new charges was also denied.
What is in no doubt, however, is that if Assange is extradited, he will face charges that could result in 175 years in prison. These would be served in solitary confinement and with little access to family, friends or lawyers.
Notwithstanding the personal effect on Assange of such an outcome, this would surely give journalists real pause for thought if they are ever offered classified US information in the future.
Wikileaks exposed tortuous trail – 5 September 2020
Lawyers for the US government wrangled for days to prevent Julian Assange’s extradition proceedings hearing Khaled El-Masri’s evidence. When eventually his story was laid before the court last week, it was obvious why.
The German shop worker suffered horrific treatment at the hands of the Macedonian police and the CIA. He was secretly held captive for months, tortured and then dumped on a roadside in a country he had never visited. It took a determined investigative journalist, the Wikileaks revelations, and nine years to establish the facts.
Once they had, however, the Grand chamber of the European Court of Human Rights ruled that El-Masri had been “severely beaten, shackled, sodomised, hooded and subjected to total sensory deprivation, carried out by state officials of Macedonia”. The court held that the facts of his case were established beyond reasonable doubt.
The United States, however, has resisted all attempts to hold it to account for the five months during which the CIA tortured El-Masri in secret. The International Criminal Court in the Hague is investigating the case, which could come to trial later this year. In response, US secretary of state Mike Pompeo has denounced the ICC and issued sanctions against its senior officials for “illegitimate attempts to subject Americans to its jurisdiction”.
El-Masri grew up in Lebanon. During 1980s civil war, when he was in his 20s, he was granted political asylum in Germany where he became citizen, set up home in Ulm, married, and started a family.
In 2003, he took a short holiday in Skopje, Macedonia – possibly after a row with his wife. As he started his coach journey home, however, he was detained by Macedonian police who mistook him for an al-Queda suspect with a very similar name and German connections.
The Macedonian police held him incommunicado for 23 days before handing him over to the CIA. Its operatives stripped, blindfolded and drugged him before strapping him spread-eagled to the floor of a plane and flying him to Afghanistan.
“I was continuously interrogated, held in a cold concrete cell with only a dirty, thin blanket and a bucket to use for a toilet. I was humiliated, stripped naked and threatened,” he told the court in his statement. It would later transpire that he was in one of the CIA’s ‘black sites’ known as the Salt Pit.
Eventually he went on hunger strike. After 34 days without food he was strapped to a chair and forcibly fed through his nose.
After four months of inhumane treatment, it appears the Americans had realised their mistake. On 28th May El-Masri was again blindfolded and handcuffed and taken to a plane where he was strapped to a seat. He was flown to Albania, although he did not know it at the time.
“I was put in the back of a vehicle and driven up and down mountainous roads. Eventually the vehicle stopped, I was brought from the back of the car and the handcuffs removed. The men gave me my suitcase and my passport and told me to walk down the road without turning back”.
He imagined that he was about to be shot in the back, and was surprised as he rounded a corner to meet a group of armed men. They asked for his passport and demanded to know why he was in Albania without a visa.
By some miracle he managed to return to Germany, but his ordeal was by no means over. After so long without word, his wife had returned to Lebanon, assuming her husband had abandoned her. And persuading anyone of what had happened to him during his five-month absence would prove challenging.
Among the investigative journalists that El-Masri contacted was John Goetz, then working for NDR, the German state broadcaster. “When we first met, very few people believed Mr El-Masri’s story,” Goetz told the court last week. “Macedonia itself denied all knowledge of the detention, and the United States provided no information.”
Goetz started meticulously checking flight records to corroborate El-Masri’s account. Eventually these led not only the actual flights, but to the names of the 13 CIA operatives who had held him prisoner.
“I myself knocked on doors in different countries and eventually in the US where I discovered the agents and questioned them about their role”, Goetz said at the Old Bailey.
In January 2007 the Munich prosecutor issued arrest warrants for 13 people wanted in connection with El-Masri’s abduction. For reasons that were, at the time, incomprehensible, the German government chose not to request extradition of those individuals.
“When the diplomatic cables (obtained by Wikileaks) first came to light ‘El-Masri’ was the first thing that I typed in”, said Goetz. What they revealed with the intense pressure that US diplomats had exerted on German chancellor Angela Merkel. “There will be serious repercussions for German/American relations if (the warrants are issued)”, she was warned by US diplomats.
American justice proved equally illusive. The American Civil Liberties Union filed a suit against the US government on behalf of El-Masri. When he and his lawyer arrived to testify, they were denied entry to the US, however. Their statements were eventually heard by video link, but the judge dismissed the case on the grounds that it would: “present a grave risk of injury to national security”.
Whether El-Masri’s story and its cover up persuades Judge Baraitser to refuse Assange’s extradition is for the future. The ICC’s deliberations too are for another day.
In no doubt, however, is El-Masri’s gratitude to Wikileaks. “Those cables made public in September 2011 made it clear why over the intervening years my suffering had been able to be denied and ignored and steps that should have been taken against those responsible sidelined”.