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Julian Assange's extradition hearing, day 6 thread. We expect to see more testimony from @Reprieve attorney Eric Lewis today. #AssangeCase
Yesterday's report: Eric Lewis: Julian Assange shouldn’t be extradited, would face solitary confinement in the United States https://assangedefense.org/live-blog-entry/day-5-september-14-2020-assangecase/
Prosecution resumes cross-examination of Lewis. Picks up where we left off, at the case of Ahmad in the European Court of Human Rights, dealing with solitary confinement in the United States -- believe that ruling is here: https://hudoc.echr.coe.int/fre# {%22itemid%22:[%22001-110267%22]}
Reviewing Ahmad case's treatment of solitary confinement, appears prosecution is trying to undermine Lewis' claims about solitary: that Assange is likely to face it, that it's applied arbitrarily, that it's widespread, etc
Prosecution says it's the defense argument that Assange would go to ADX in Colorado, the prosecution's argument is that we don't know yet where he'll go. Lewis: "I understand that's the government's position but I disagree"
(Background: report from 2012, updated in 2017, by @theCCR: 'Solitary Confinement: Torture in U.S. Prisons'
https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/torture-use-solitary-confinement-us-prisons)
https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/torture-use-solitary-confinement-us-prisons)
Reviewing Lewis' claim in his witness submission that US prisons are failing to protect inmates from COVID19. Prosecution asking if Lewis has visited the Alexandria Detention Center since the pandemic started - he says no
Prosecution notes a report from Sept 3rd saying only 1 inmate at ADC has COVID19. 'So all your statistics about other facilities are irrelevant are they not?'
Lewis: nearly 12% of the prison population has COVID, he could be sent to another facility
Lewis: nearly 12% of the prison population has COVID, he could be sent to another facility
Prosec: are you seriously trying to help the court, Mr Lewis, or simply trying to find every fact you can to help your opinion?
Lewis: trying to provide answers that are complete
Lewis: trying to provide answers that are complete
Prosec citing an article from Lewis from 2019 in which he says Assange could face up to 340 years in prison. Lewis says it could have been his error, he confused the fact that Espionage Act violations used to carry 20 year sentences, reduced to 10. But the answer is 175 years
Prosecution: the 175 years is really a soundbite from the defense isn't it? You don't really think he'll be sentenced to 175 years do you?
Lewis: I do think it's a possibility and I can explain why
Lewis: I do think it's a possibility and I can explain why
Prosecution: no that's OK, we'll get to it
Defense rises to ask if Lewis can be allowed to answer it. Prosecution says 'if he can just keep the answer to 5 minutes'
Judge: well there's no time limit
Defense rises to ask if Lewis can be allowed to answer it. Prosecution says 'if he can just keep the answer to 5 minutes'
Judge: well there's no time limit
Judge trying to get prosecution to understand/agree that open questions can take long answers
Prosecution: doesn't matter how I ask he'll answer that way anyway
Prosecution: doesn't matter how I ask he'll answer that way anyway
Lewis explaining why it's reasonably likely Assange will be sentenced to 175 years in prison. The government has said this is the biggest leak publication in history. Has cited adversaries benefiting. Chelsea Manning's case, govt asked for 60 years. Assange's max is 175 years
The sentencing guidelines are advisory. Tried to work out the likely factors. Base offense under the guidelines is 30 years--
Prosecution interrupts: it's 24
Prosecution interrupts: it's 24
Prosec reviewing sentencing guidelines and likelihood of longest sentence. Prosec discussing other Espionage Act cases -- refers to case of [Jeffrey] Sterling
(Background: CIA Officer Jeffrey Sterling Sentenced to Prison: The Latest Blow in the Government’s War on Journalism https://www.thenation.com/article/archive/cia-officer-jeffrey-sterling-sentenced-prison-latest-blow-governments-war-journalism/)
Prosecution says Kromberg's filing says only a small percentage of defendants receive the statutory maximum sentence
Prosecution reviewing statutes/guidelines: sentence must indicate seriousness of offense, consider nature of circumstances, etc -- trying to undermine Lewis' claim that Assange is likely to receive the highest sentence of 175 years
Because Chelsea Manning's sentence was mentioned, reviewing differences between sentence in military court and that of federal civilian court, trying to argue it shouldn't be considered a relevant factor/comparison here
Prosecution references Sterling, CIA agent, disclosed that the agency gave flawed design plans to Iran. Prosec says Sterling's maximum sentence was 130 years. His sentence was 42 months, wasnt it?
It's what the court sentenced him to but not what the government wanted
It's what the court sentenced him to but not what the government wanted
Prosec: so why didn't you give a realistic estimate for what Assange would face rather than a soundbite of 175 years?
Lewis: I said what the maximum was, said what the guidelines were, didn't think I was allowed to go beyond that. Sterling's sentence was below guidelines
Lewis: I said what the maximum was, said what the guidelines were, didn't think I was allowed to go beyond that. Sterling's sentence was below guidelines
Jeffrey Sterling ( @S_UnwantedSpy) in March 2020: 'Reject Using My Unjust Conviction Against Julian Assange' https://www.laprogressive.com/jeffrey-sterling/ h/t @auerfeld
Sterling also spoke at Courage's panel event: “What would Julian Assange face in the US?” https://defend.wikileaks.org/2020/08/05/what-would-julian-assange-face-in-the-us/
Prosecution reviewing other Espionage cases, including Terry Albury -- contrasts Top Secret material there to Secret material in Assange's case
(Oct. 2018, Ex-Minneapolis F.B.I. Agent Is Sentenced to 4 Years in Leak Case https://www.nytimes.com/2018/10/18/us/politics/terry-albury-fbi-sentencing.html)
Prosec: what is the longest sentence ever imposed for a prosecution of a disclosure to the media? Asks Lewis to agree it's 63 months [Reality Winner]
Lewis talks about other Espionage Act cases, accepts that's highest for disclosure to media
Lewis talks about other Espionage Act cases, accepts that's highest for disclosure to media
Prosecution talking about district judges in the US, says they have life tenure to ensure independence
Are you familiar with the district judge in Assange's case, Claude Hilton?
Haven't sat before him
He was appointed in 1985, agree he's experienced? yes
Haven't sat before him
He was appointed in 1985, agree he's experienced? yes
Any reason to think he'd sentence unfairly?
Lewis: He's known as a big sentencer, I'm not questioning his integrity but wouldn't want client in front of him
Lewis: He's known as a big sentencer, I'm not questioning his integrity but wouldn't want client in front of him
Federal judge Claude Hilton, Eastern District of Virginia: https://ballotpedia.org/Claude_Hilton
10 minute recess. #AssangeCase
Claude Hilton, who would be Assange's judge in the US, threw Chelsea Manning in jail back in March 2019 for refusing to testify against WikiLeaks in a secret grand jury: https://www.washingtonpost.com/local/public-safety/chelsea-manning-sent-to-jail-for-refusing-to-testify-in-wikileaks-case/2019/03/08/ecb9eda8-41b4-11e9-9361-301ffb5bd5e6_story.html
Back from recess. Lewis: there's never been a successful prosecution of a publisher of information related to national security
Prosecution brings up Lewis' article from 2019 where Lewis made error on the sentencing number -- 'As an American lawyer, I don't want to see Julian Assange extradited to my country' https://www.independent.co.uk/voices/julian-assange-wikileaks-extradite-us-rape-allegations-uk-a8933916.html
Prosecution brings up AIPAC case, Steve Rosen & Keith Weissman (Background: https://www.nytimes.com/2009/05/02/us/politics/02aipac.html)
Prosec brings up US v Morison ( https://www.opengovva.org/foi-opinions/united-states-v-morison), says the Supreme Court rejected arguments the charges were unconstitutionally vague. Lewis says this was the leaker, not the publisher
Prosecution talking about First Amendment protections in Espionage Act cases, saying they are not categorical, courts say they must be weighed against national security interests
Lewis agrees there is a balance but the bar for breaching 1A protections must be extremely high
Now talking about Pentagon Papers case, attempted injunction against publishing
Lewis brings up that Ellsberg was charged with disclosing names of actual CIA agents, not foreign nationals
Prosecution distinguishing in cases between government employees who had legitimate access to the leaked info and those not in government, Chelsea Manning would fall in the former, Assange in the latter
Prosecution trying to undermine Lewis' claim that the Pentagon Papers case is the most relevant case to judge balancing of First Amendment concerns & national security interests
Prosecution: I challenge you to name one single precedent that publishers can't be prosecuted
Lewis: let me start with the fact that Eric Holder and Matthew Miller decided that the publisher couldn't be prosecuted in this case
Lewis lists Pentagon Papers, US v Hayes, district cases
Lewis: there is an unbroken line of (hard to hear) courts declining to prosecute publishers
Lewis reminds the court that Kromberg has said Assange would not get First Amendment protections
Prosec: is it correct that the Supreme Court has never held that third-party publishers are precluded from prosecution?
Lewis: I've answered that
Do you accept that the government can prosecute government insiders for leaking?
Yes
Lewis: I've answered that
Do you accept that the government can prosecute government insiders for leaking?
Yes
And third parties are not entitled to help government insiders, and that'd include journalists?
No - journalists are to protect their sources, and under these arguments every national security reporter back to Seymour Hersh would be criminally liable
No - journalists are to protect their sources, and under these arguments every national security reporter back to Seymour Hersh would be criminally liable
Prosecution: you agree journalists don't have a right to (hard to hear) enter the White House?
Lewis: you mean jump the fence? don't believe so no
Lewis: you mean jump the fence? don't believe so no
Videolink notes: Eric Lewis' sound is particularly hard to hear. We've been given one pan over to Julian, who was leaning against the wall, listening, mask on.
Apologies for delay, especially hard to hear exchange over what previous courts in US and UK have ruled and whether Lewis has reviewed political science articles, or whether his opinion is "conjecture"
Prosecution refers back to Mark Feldstein's testimony on Obama administration -- whether it was a decision *not* to prosecute or whether the Obama admin did not take a decision either way
Do you agree with Professor Feldstein that a decision was not taken?
Eric Lewis: No
Eric Lewis: No
Prosecution reviewing Feldstein saying while the whole tenor of the Obama admin was not to prosecute, the admin did not take an opinion either way -- do you agree?
Lewis: I believe it reflects a misunderstanding of the way the prosecution process works
Lewis: I believe it reflects a misunderstanding of the way the prosecution process works
There appears to be an understanding of how the justice department works that does not reflect my experience
Prosecution questions his experience: do you have any first-hand knowledge of the Obama admin deliberations?
No
So only based on news articles?
I've also viewed video interviews, reviewed scholarly articles
No
So only based on news articles?
I've also viewed video interviews, reviewed scholarly articles
Prosec: Matthew Miller left DOJ in 2011, 2 years before he gave the interview to the Washington Post?
Lewis: yes, but he would have had contemporaneous information based on what I know of DOJ politics and his relationship. He wouldn't have spoken without running it by Holder
Lewis: yes, but he would have had contemporaneous information based on what I know of DOJ politics and his relationship. He wouldn't have spoken without running it by Holder
Establishes that Lewis hadn't spoken to actual fed prosecutors in this case
Believe federal prosecutors operate according to guidelines?
Lewis: no, I believe it is a top-down bureacracy, prosecutors are essentially directed
Lewis: no, I believe it is a top-down bureacracy, prosecutors are essentially directed
Lewis cites former prosecutors and judges who have said that federal prosecutorial guidelines are not followed
So federal prosecutors are acting in bad faith?
Lewis: Jeff Sessions pressured EDVA to bring the case. Not saying individual prosecutors are acting in bad faith, I'm saying the department is highly politicized and many Americans would agree with that sentiment
Lewis: Jeff Sessions pressured EDVA to bring the case. Not saying individual prosecutors are acting in bad faith, I'm saying the department is highly politicized and many Americans would agree with that sentiment
Prosec talking about Lewis statement discussing theory that Trump wants to distract from DNC leaks helping Trump's election campaign. Lewis says it's a politically motivated prosecution with changing views, wanted to execute back in 2010-11, then liked DNC leaks, now prosecuting
Prosecution suggests Lewis' opinion is "pure conjecture"
Lewis: extensive body of literature about this president's concern about his own legitimacy
Lewis: extensive body of literature about this president's concern about his own legitimacy
Discussion over the Classified Information Procedures Act, which would apply in the US case if Assange were extradited: https://www.law.cornell.edu/uscode/text/18a/compiledact-96-456
Govt arguing CIPA is invoked to protect national security information. Lewis says it also makes it very difficult on the defendant, cites overclassification in the US
End of cross-examination. Ed Fitzgerald re-examining for the defense
Defense asks Lewis to comment again on his determination that the Obama admin decided not to prosecute Assange, not simply that the Obama did not make a decision either way
Lewis supports that opinion with Washington Post article as well as Eric Holder's MSNBC interview - opinion is that the Obama admin decided not to prosecute a publisher
Also cites Matthew Miller (DOJ spokesman) “The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists..."
"....“And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”
Lewis talking about how reliable the Washington Post article is ( https://www.washingtonpost.com/world/national-security/julian-assange-unlikely-to-face-us-charges-over-publishing-classified-documents/2013/11/25/dd27decc-55f1-11e3-8304-caf30787c0a9_story.html) -- says Sari Horwitz is a 4-time Pulitzer winner, no one denied it, no reason to not find it credible
Defense: you talked about 1,000 prosecutors writing about interference in the Stone case, is that right?
Yes, may have been more, including #2 under Bush, immediate predecessor to AG Barr in that position
Yes, may have been more, including #2 under Bush, immediate predecessor to AG Barr in that position
As to whether DOJ reached these decision in 2018 and May 2019 independently or not?
Lewis: Trump has said he could do whatever he wants, and AG indicates that prosecutorial discretion rests with the president.
Lewis: Trump has said he could do whatever he wants, and AG indicates that prosecutorial discretion rests with the president.
This is the unitary executive theory, it is not an accepted theory, it's a fringe theory but the attorney general expressed it. Yes the guidelines say you must be independent but clearly not the way AG Barr views it, he considers the DOJ the prosecutorial hand of the president
Lewis: it's hard to overemphasize how out of keeping with the DOJ's history that AG Barr's views are. Not questioning integrity of lower-level prosecutors, but fed prosecutors are acting because AG asked them to do so
Reviewing district judge in SDNY was made to step down, political interference w/ regard to Roger Stone
Assange would be prosecuted by those specifically ordered by Attorney General under Trump?
Yes presuming Trump is still in office at such a time
Assange would be prosecuted by those specifically ordered by Attorney General under Trump?
Yes presuming Trump is still in office at such a time
Lewis: They only close investigations due to limitation period ending -- always leave it open in case something new comes in. That's not what happened here -- factual matrix is fixed. Nothing changed here from 2011 to 2017. Reports that the case is dormant when Trump admin began
and statements from EDVA prosecutors who appear to be pressured. Prosecutor James Trump (no relation) and Grooms put on the case. Jeff Sessions said to look at this case again
both prosecutors said they disagreed with the decision to prosecute under the Espionage Act. No new evidence since Obama admin.
Lewis: Evidence hasn't changed. Witnesses haven't changed. First Amendment hasn't changed. The first indictment they tried to get around the New York Times problem. Only explanation is there has been a change in administration
CIA whistleblower Jeffrey Sterling on the prosecution using his case and sentence against Assange: https://twitter.com/S_UnwantedSpy/status/1305829477319147520
Defense: is Mr Kromberg more qualified than you are to talk about prison conditions?
Lewis: I would be surprised if he has spent more time in prisons than I have. When prisoners aren't happy about their treatment, they don't go to Mr Kromberg, they go to me
Lewis: I would be surprised if he has spent more time in prisons than I have. When prisoners aren't happy about their treatment, they don't go to Mr Kromberg, they go to me
I have spent weeks and weeks at Guantanamo Bay prison. It's up to the court to determine if I'm qualified but I've reviewed lots of articles and my experience to comment
Former client of Lewis', Abu Khattala, spent 3 years in pre-trial detention. Likely Assange would as well?
Lewis: if all WikiLeaks documents are viewed as classified, which the govt has said they are, it will take a very very long time
Lewis: if all WikiLeaks documents are viewed as classified, which the govt has said they are, it will take a very very long time
If someone was in admin seg and subject to SAMs, that's tantamount to solitary confinement?
Lewis: yes
Lewis: yes
UN Mandela rules for the standard treatment of prisoners -- solitary confinement refers to more than 22 hrs / day without meaningful human contact. Real risk someone in ad-seg and under SAMs would meet that definition?
Yes. Certainly was the case with Mr Abu Khattala.
Yes. Certainly was the case with Mr Abu Khattala.
Ability to challenge confinement conditions is very restricted, particularly in pre-trial, particularly w/ national security info case
Reviewing effects of solitary confinement. Mental health is a particular issue. There was a General Accountability Office on ADX, says US Bureau of Prisons couldn't say how many in solitary, adverse affects on inmates are alarming
GAO report: Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing https://www.gao.gov/assets/660/654349.pdf
Lewis: 2/3 of suicides and incidents of self-harm in US prisons take place in segregated housing
Related background, see @thejustcampaign's thread on US prison conditions: https://twitter.com/thejustcampaign/status/1305468921152069635
Defense reviewing prosecution's claim about US prisons offering mental health assistance to inmates diagnosed on the autism spectrum.
Lewis: doesn't apply to those under SAMs
Lewis: doesn't apply to those under SAMs
More from CIA whistleblower Jeffrey Sterling: https://twitter.com/S_UnwantedSpy/status/1305834982804541440
Adjournment now for an hour. Will finish defense re-examination of Eric Lewis. Next defense witness after that will be Thomas Durkin, a former federal prosecutor.
#AssangeCase
#AssangeCase
