Day Seven
September 16. Central Criminal Court, London. Proceedings today at the Old Bailey regarding Julian Assange’s extradition returned to journalistic practice, redaction of source names and that ongoing obsession with alleged harm arising from WikiLeaks releases. John Goetz of Der Spiegel added his bit for the defence, making an effort to set the record straight on the events leading up to the publishing of un-redacted US diplomatic cables on September 2, 2011.
The picture that emerges from Goetz is not Assange the reckless cavalier indifferent to human life but of a more considered publisher, working with news organisations to redact the names of informants, insisting on the use of encrypted communications, cognisant of the risk of harm facing them. Goetz noted that WikiLeaks had a “very rigorous redaction process”, evident in its approach to the Afghanistan files; Assange was “very concerned with the technical aspect of trying to find the names in this massive collection of documents.”
Der Spiegel itself had interviewed Assange on the process in 2010, a point remarked upon by Goetz. As Assange said at the time. “We understand the importance of protecting confidential sources, and we understand why it is important to protect certain US and ISAF sources.” Cases “where there may be a reasonable chance of harm occurring to the innocent” were identified. “Those records were identified and edited accordingly.” The practice seemed to have paid off. Goetz noted that the trial of Chelsea Manning, based on her disclosures to WikiLeaks, revealed no cases of harm to any informant.
Mark Summers QC sensed a chance to interrogate another aspect of the prosecution case on Assange’s supposed callousness about the fate of informants, captured by the alleged remark, “They’re informants, they deserve to die.” That now infamous dinner at London’s Moro restaurant is recorded by The Guardian journalists David Leigh and Luke Harding in WikiLeaks: Inside Julian Assange’s War on Secrecy (2011). It supposedly took place in early July 2010 a few weeks prior to the publication of the Afghan War Diaries. Goetz had been in attendance. Leigh, also at the dinner, was mistaken: Assange had never said anything of the sort.
James Lewis QC for the prosecution spluttered in alarm at this course of questioning from the defence. Goetz had not mentioned this in his written testimony; a supplemental witness statement would have to be submitted. Judge Vanessa Baraitser agreed, amputating a potentially fruitful line of inquiry.
A picture of tussling between authorities and media outlets emerged, with WikiLeaks and partner media outlets having communications with the US government prior to publication. Efforts were made to identify areas of sensitivity; officials were variably bemused. A delegation of New York Times reporters made their way to the White House ostensibly to discuss the imminent release, with Eric Schmitt informing Goetz of the conveyed message that 15,000 documents within the Afghan War Diaries would not be published. The call to assist with redactions was met with “derision”.
The bungle that led to the publication of the entire trove of un-redacted cables was also re-visited. It gave Goetz a chance to patiently point out that the password to the unencrypted file with the cables had found its way into the aforementioned book by Leigh and Harding. The magazine Die Freitag got wind of it, publishing the details, despite, according to Goetz, Assange’s efforts to stop it. Publishing outfits such as Cryptome capitalised with abandon. With the train set in motion, Assange and WikiLeaks contacted the State Department’s emergency phone line. The cat had scurried out of the bag; sources had been named. The response from Washington was cool, dismissive. WikiLeaks subsequently published what had already been released. During the examination of Goetz, Lewis got muddled over the Afghan War logs and diplomatic cables. The journalist was happy to correct him.
The Goetz testimony also spoke to the value of the WikiLeaks disclosures. Details had been sparse on the fate of kidnapped German national Khalid el-Masri, who had been captured by the Central Intelligence Agency in Macedonia in 2004. A search of the trove by Goetz revealed that CIA abductors had “forced el-Masri onto a military plane, sodomized him and sent him” to Afghanistan. The revelations led to the issuing of an arrest warrant by a state prosecutor based in Munich for 13 CIA agents. Another search of the cables found that pressure from Washington had been brought to bear on the prosecution to defang the process, issuing a warrant in a jurisdiction where the agents did not live.
With Goetz’s testimony done, the defence attempted to incorporate a statement by el-Masri into the court record. The prosecution took issue, claiming that he did not feature in the charges against the WikiLeaks publisher, making such evidence irrelevant and inadmissible. An agitated Lewis suggested that the defence, in reading the statement, would be wasting half-an-hour of the court’s time. Judge Baraitser was put out at the manner of the prosecutor’s objection; such an approach might mean her accepting the evidence “unchallenged”. After much discussion Lewis suggested edits. The statement seems to remain in legal limbo.
The other blazing feature of today’s proceedings was the appearance of Daniel Ellsberg, the aged whistleblower of Pentagon Papers fame. Over the years, he has become a grandfatherly presence in the debates on disclosing classified material for public consumption and debate. The documents he passed on to the New York Times in 1971 shed light on the futility of US involvement in the Vietnam War while revealing habitual public mendacity on the part of various administrations. “My own actions in relation to the Pentagon papers and the consequences of their publication have been acknowledged to have performed such a radical change of understanding. I view the WikiLeaks publications of 2010 and 2011 to be of comparable importance.”
Before the court, Ellsberg attested to the common beliefs he shared with Assange: opposing wars, holding to those cardinal principles of keeping the powerful accountable and the state transparent. Common ground was also shared about the invasion of Iraq (a “crime” and “aggressive war”); and Afghanistan, a modern Vietnam redux of infinite stalemate. Over time, attitudes had changed to documents discussing such behaviour in war. The killings, abuses and war crimes in Afghanistan and Iraq had been buried in “low-level field reports” so as to be banal. The Pentagon Papers had been seen as the palace jewels of secrecy; the Iraq and Afghan war logs were merely classified as “secret”.
Such leaks as the Collateral Murder video, the infamous portrayal of a war crime committed by an US Army Apache helicopter in New Baghdad, shed light on this culture of lethal normalisation. Murder it was, but “the problematic word in the title was ‘Collateral’, implying that it was unintended.” Chelsea Manning was also to be praised for “willing to risk her liberty and even her life to make this information public. It was the first time in 40 years I saw someone else doing that, and I felt kinship towards her.”
The Espionage Act, Ellsberg reflected, discouraged such acts of informing disclosure. He found this much to his chagrin during his 1973 trial, in which motivation was dismissed as irrelevant. “The Espionage Act,” rued Ellsberg, “does not allow for whistleblowing, to allow you to say you were informing the polity. So 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.”
In cross-examination, the prosecution brought up the straw man argument used by critics of WikiLeaks, including Floyd Abrams, an attorney who represented the New York Times in the Pentagon Papers case. The argument seeks to distinguish Ellsberg’s conduct and the right of the paper to publish, as distinct from that of Assange. Ellsberg found such views ignorant of motive, whether of his or Assange’s. Abrams had not troubled himself to go through the entirety of the Pentagon papers, nor discuss motivations with him.
From this distinction arose the idea of the noble, ennobled Ellsberg, and the wicked, fallen Assange. Exempting him from criticism while criticising Edward Snowden, Manning and Assange involved “a distinction which in my view is entirely misleading.” Apart from “the computer aspects which didn’t exist back then, I see no difference between the charges against me and the charges against Assange.” He also challenged the distinction (white Ellsberg, dark Assange) by suggesting he had not done as Assange had in terms of care: redacted names, withheld 15,000 sensitive documents, or approached the Pentagon and State Department for assistance in making further redactions. The refusal to accept such offers from WikiLeaks might have been purposely done, suggested Ellsberg, to enable a future prosecution.
Ellsberg attempted to set Lewis straight in his contention that withholding four volumes of the Pentagon Papers at the time was a saintly gesture to prevent harm to the US. The whistleblower disagreed. The move was intended to prevent a disruption to ongoing peace talks. “I want to get in the way of the war, I don’t want to get in the way of the negotiations.” To have redacted the papers would have risked compromising their accuracy.
The prosecution, desperate to nab their quarry, insisted on pushing Ellsberg on the issue of harm that the disclosures might have had. Lewis seemed incredulous that any witness could claim that “there is no evidence that WikiLeaks put anyone in danger.” He also read the contents of Assistant US Attorney General Gordon Kromberg’s affidavit at some length, a crude recycling of many of the claims made at the Manning trial that failed to stick on the charge of “aiding the enemy”. Ellsberg snorted, claiming such assertions to be the mark of high cynicism. “Am I right in that none of these people actually suffered physical harm?” Lewis tartly responded: “The rules are that you do not get to ask the questions.”
Ellsberg, however had decent answers. He could also point to the findings of the US Defense Department that no demonstrable harm had arisen from the releases. At the Manning court martial, the prosecutors similarly conceded that not a single death could be identified as a result, a point made by Brigadier General Robert Carr under cross-examination.
Ellsberg also suggested that US authorities had done little by way of assisting the concealing of informant identities when approached by WikiLeaks. US wars in the Middle East over the last two decades, the sort that Assange had tried to end, had caused a million deaths and 37 million refugees.
This did not prevent Lewis from speculating about those who had disappeared in Iraq, Afghanistan and Syria. It was “common sense” to suggest that they had either been murdered or forced to flee. “I’m sorry sir,” came the reply, “but it doesn’t seem to be at all obvious that this small fraction of people that have been murdered in course of both sides of the conflicts can be attributed to WikiLeaks disclosures.” A truly palpable hit.
Day Eight
The extradition trial of Julian Assange at the Old Bailey struck similar notes to the previous day’s proceedings: the documentary work and practise of WikiLeaks, the method of redactions, and the legacy of exposing war crimes. In the afternoon, the legal teams returned to well combed themes: testimony on the politicised nature of the Assange prosecution, and the dangers posed by the extra-territorial application of the Extradition Act of 1917 to publishing.
Assange the discerning publisher (for the defence) or reckless discloser (for the prosecution) were recurrent features. This time, it was John Sloboda, co-founder of the British NGO, Iraq Body Count, who took the stand. IBC had its origins in a noble sentiment: to give “dignity to the memory of those killed.” To know how loved ones perished sates a “fundamental human need”, and aids “processes of truth, justice, and reconciliation.” The outfit “maintains the world’s largest public database of violent civilian deaths since the 2003 invasion, as well as a separate running total which includes combatants.”
Central to Sloboda’s testimony was the importance of the Iraq War Logs, released in October 2010. As IBC puts it, the logs did not constitute the first release of US military data on Iraqi casualties but were pioneering, making it “possible to examine such data and to compare and combine it with other sources in a way that adds appreciably to public knowledge.” The compilation of 400,000 Significant Activity reports put together by the US Army comprised, in Sloboda’s words, “the single largest contribution to public knowledge about civilian casualties in Iraq.” They were, he told the court, “a very meticulous record of military patrols in streets in every area of Iraq, noting and documenting what they saw.” Some 15,000 previously unknown civilian deaths were duly identified.
In terms of collaboration, IBC approached WikiLeaks in the aftermath of publishing the Afghan War Diary. An invitation from Assange to join a media consortium including The Guardian, Der Spiegel and The New York Timesfollowed. “It was impressed on us from our early encounters with Julian Assange that the aim was a very stringent redaction of documents to ensure that no information damaging to individuals was present.”
The redaction of the logs was part of a “painstaking process” that took “weeks”. Given the physical impossibility of manually redacting 400,000 documents in timely fashion, “The call was out to find a method that would be effective and would not take forever.” Sloboda made mention of a computer program developed by a colleague, one that would remove names from the documents. “It was a process of writing the software, testing it on logs, finding bugs, and running it again until the process was completed.”
The publication release was delayed, as the software in question “was not ready by the original planned publication date”. Modifications were also affected in terms of how thoroughly redaction might take place of “different categories of information”: the removal of architectural features (mosques, for instance), or expertise or professions of individuals.
Pressure was placed on WikiLeaks by the other media partners to publish. Their contribution to the redaction process had been sparse and manual: a mere sampling. Assange held firm against such impatience: redactions had to take place systematically; “the entire database,” recalled Sloboda, was “to be released together.” If anything, the final product was one of overcautious sifting, one overly pruned to prevent any dangers.
For all that, Sloboda insisted in his witness statement that a decade on, the Iraq War Logs “remain the only source of information regarding many thousands of violent civilian deaths in Iraq between 2004 and 2009.” The position of IBC was simple: “civilian casualty data should always be made public.” In doing so, no harm hard occurred to a single individual, despite repeated assertions by the US government to the contrary, not least because of the thorough redaction process. “It could well be argued, therefore, that by making this information public, [Chelsea] Manning and Assange were carrying out a duty on behalf of the victims and the public at large that the US government was failing to carry out.”
Joel Smith QC for the prosecution duly probed Sloboda on his experience in the field of classifying or declassifying documents, and whether he had earned his stripes dealing with corroborating sources in an oppressive regime. Such questioning had a simple purpose: to anathemise the civilian or journalist publisher of documents best left to agents and thumbing bureaucrats. Had Sloboda and staff at the IBC been appropriately vetted? “We paid a visit to the offices of the Bureau of Investigative Journalism and were asked to sign a non-disclosure agreement with the then director Iain Overton. I don’t remember any vetting process.”
Sloboda, in his written submission, conceded that the previous publications by WikiLeaks, in particular the Afghan War Diary, came with its host of challenges, a “steep learning curve for all of those concerned.” To Smith’s questioning, he revealed that “there was a sense there needed to be a better process in the next round”, the redaction process having not quite been up to scratch.
Another line of the prosecution’s inquiry was the accuracy of the redaction. Was there human agency at any time in reviewing the war logs to avoid any “jigsaw risk” enabling the identification of individuals? Checking did take place,answered Sloboda, “but no human could go through them all.”
Smith, as with other prosecutors, persevered with the Assange as ruthless motif, this time asking if Sloboda was aware of comments allegedly made at the Frontline Club for journalists. The transcript of the event supposedly has the publisher claiming that WikiLeaks nursed no obligation to protect sources in leaked documents except in cases of unjust reprisal. “Today is the first time that I have read the transcript.” Sloboda could “remember nothing like that in our conversations about the Iraq logs.”
The possibility that Iraqi lives were probably put at risk was aired, with Smith reading a witness statement from assistant US attorney Kellen S. Dwyer that the Iraq War Logs had named local Iraqis who had been informants for the US military. (Dwyer’s competence might be gauged by the “cut and paste” mistake he made in revealing that Assange had been charged under seal.) To this unprovable assertion or assessment (qualifying risk and harm), Sloboda expressed surprise; if the reference was to “the heavily redacted logs published in October 2010, this is the first time I have heard of it.”
Human rights attorney and historian Carey Shenkman followed to testify via videolink. Shenkman, a keen student of the historical and often invidious use of the Espionage Act, was in the employ of the late and formidable Michael Ratner, president emeritus of the Center for Constitutional Rights. Shenkman’s written testimony is withering of the statute now being used with such relish against Assange.
Much said by Shenkman would be familiar to those even mildly acquainted with that period of executive overreach. It arose from “one of the most politically repressive” times in US history, a nasty product of the Woodrow Wilson administration’s fondness of targeting dissidents. “During World War I, federal prosecutors considered the mere circulation of anti-war materials a violation of the law. Nearly 2,500 individuals were prosecuted under the Act on account of their dissenting opposition to US entry into the war.” Among them were such notables as William “Big Bill” Haywood of the International Workers of the World, film producer Robert Goldstein and, with much disgrace, Eugene Debs, presidential candidate for the Socialist Party.
The word “espionage”, he explained to Judge Vanessa Baraitser, was a misnomer. “Although the law allowed for the prosecution of spies, the conduct it prescribed went well beyond spying.” The Act became the primary “tool for what President Wilson dubbed his administration’s ‘firm hand of stern repression’ against opposition to US participation in the war.”
As Shenkman noted in his statement to the court, the Act targeted spying for foreign enemies in wartime and was intended to address “such matters as US control of arm shipments and its ports”. But it also “reflected the government’s desire to control information and public opinion regarding the war effort.”
Its broadness lies in how it criminalises information: not merely “national security information” but all material falling under the umbrella of “national defence” information. Shenkman has previously argued that public interest defences focused on the positive outcomes of disclosures be given to whistleblowers and hacktivists. But for the First Amendment advocate, the Espionage Act remains fiendishly controversial when it comes to the press, the reason, he testified, why there was never “an indictment of a US publisher under the law for the publication of secrets. Accordingly, there has never been an extraterritorial indictment of a non-US publisher under the Act.”
The idea of prosecuting publishers involving grand juries had been flirted with in some cases, but never seen through. Shenkman offered a few highlights. The Chicago Tribune faced the possibility in 1942 when it published secrets after the Battle of Midway. The effort crumbled when the prosecutor in that case, William Mitchell, expressed doubts that the Espionage Act extended to newspapers. The Truman administration had also tentatively tested these waters, arresting three journalists and three government sources for conspiracy to violate the Act. No indictments followed, though it emerged that political pressure had been brought to bear on the Justice Department from “multiple factions within the Truman administration.” An uproar led to a jettisoning of the case and the imposition of small fines.
Previous examples are also noted in Shenkman’s court submission, including the threatened prosecutions of Seymour Hersh during the Ford administration, and James Bamford in 1981. Dick Cheney, future dark puppeteer of the George W. Bush administration, felt it would be “a public relations disaster” to target Hersh.
According to Shenkman, a chilling change in the winds took place during the Obama administration, if only briefly. Fox News journalist James Rosen had been named as an “aider, abettor, and co-conspirator” in a Justice Department case against Stephen Kim, a State Department employee. The effort stalled and Eric Holder’s remarks on resigning as Attorney General in 2014 spoke of deep regret that Rosen had ever been named. Journalists felt relief.
Then came the Assange indictment. “I never thought based on history we’d see an indictment that looked like this.” It was part of the Trump administration’s desire “to escalate prosecutions as well as ‘jailing journalists who publish classified information.’ The Espionage Act’s breath provides such a means.”
Prosecutor Claire Dobbin was blunter than her colleague, preoccupied with attacking Shenkman’s credibility for having worked with Ratner when representing Assange. Little time was spent on the substance of Shenkman’s submission; instead, the prosecution sought to convince the witness that the case against Assange would be best heard on US soil.
What mattered to Dobbin was taking the politics out of the prosecution. Surely, she put to Shenkman, he could still believe in 2015 that the US would bring charges against Assange. The less than subtle insinuation here is that a refusal to do so under the Obama administration was merely a lull rather than an abandonment of interest. “[O]ftentimes,” replied Shenkman, “these things are left to simmer, but ultimately, an indictment was not brought.” Had President Barack Obama and Attorney General Holder wished to pursue Assange, they would have surely shown a measure of eagerness to do so.
More could be said about the politicisation thesis: the singular use of the Espionage Act, the framing of the charges, and the timing of the indictment, all pointing to “a highly politicized prosecution.”
Prosecutorial tactics switched to hair splitting. What constituted the stealing of national security and national defence information? Would that be covered by the First Amendment? Depends, countered Shenkman, reminding Dobbin of the recent 9th Circuit Court of Appeals decision in United States v Moalin accepting the merit of Edward Snowden’s disclosures on unwarranted surveillance by the National Security Agency, despite deriving from an instance of theft.
There was a divergence of views on the issue of “hacking” as well. “Are you saying that hacking government databases is protected under the First Amendment?” shot Dobbin. Again, more clarity was needed, suggested Shenkman. The Computer Fraud and Abuse Act, for instance, makes no reference to the term. Nuance is required: “crack a password’ and “hack a computer” have “scary” connotations; in other instances there would be “ways the First Amendment could be relevant.”
Given such disagreement and lack of clarity of terms, Dobbin pushed Shenkman to agree that a US court would be the most appropriate body to determine the issue. “No,” came the emphatic answer. The way the indictment had been drafted was political. The prosecution had, effectively, dithered.