Kafka On Acid: The Trial Of Julian Assange

By Felicity Ruby, September 19, 2020

From Popular Resistance

Julian Assange needs to wake before dawn to get from Belmarsh Prison to the Old Bailey courthouse, where his extradition hearing resumed on 7 September, for four weeks. He gets dressed for court only to be strip-searched before being placed in a ventilated coffin Serco van for a 90-minute trip across London in peak-hour traffic. After waiting handcuffed in the holding cells, he is placed in a glass box at the back of the courtroom. Then he is forced back into the Serco van to be strip-searched back at Belmarsh to face another night alone in his cell.

The latest act of legal theatre began with Julian’s rearrest down in the cells of the Old Bailey, before seeing his lawyers for the first time in six months. Despite all deadlines for documents having long passed, despite the extradition hearing being underway since February (with May hearings postponed to September due to COVID-19), and after the defence had submitted all of their arguments and swathes of evidence, the United States issued yet another indictment, for which Julian needed to be arrested again.

The first indictment was unsealed by the United States, as Julian said would happen, on the day Ecuador ejected him from its embassy, on 11 April 2019. The charge was conspiracy to commit computer intrusion.  The second indictment came a few weeks later, on 23 May 2019, adding seventeen more charges under the US Espionage Act, the first time the Act has been used against a journalist or publisher.  The third and replacement indictment was issued via press release on 24 June 2020, with the United States not bothering to serve it properly to the court until 15 August. It includes the same charges, but, having benefited from all of the evidence and arguments submitted by the defence, it also introduces new material and description to reinforce the narrative that Assange’s work is hacking rather than journalistic or publishing activity, by alleging association with ‘Anonymous’.  It also criminalises Assange’s assistance of Edward Snowden, and adds new material from FBI asset and convicted thief, fraudster and paedophile Sigurdur ‘Siggi’ Thordarson.

Assange saw the new indictment only just before being rearrested. Having neither received instructions from him nor prepared evidence or witnesses on the new material, the defence team called for the hearing to set the new material aside and continue or to be adjourned so that  a defence on the new indictment could be prepared.  By waving all this through̶  refusing either to strike the new material out or grant an adjournment ̶ Magistrate Vanessa Baraitser turbocharged the tradition written about long ago by Charles Dickens in A Tale of Two Cities, where he described the Old Bailey as, ’a choice illustration of the precept that “Whatever is, is right”’.

Then, the technical theatre began.  Until this hearing, the UK Ministry of Justice had dealt with COVID-19 by using a 1980s teleconferencing kit that announced every time someone entered or left the conference, with no central mute function, meaning everyone was subjected to the background noise of dozens of homes and offices. The tech during this session is only marginally improved, with fuzzy video streaming available to approved journalists outside the United Kingdom. Their twitter streams constantly complain of people being unable to hear or see, of being held in limbo waiting rooms, or seeing only into the lounge rooms of the tech support crew.  In this case open justice is open only so far as the twitter threads of people such as @MaryKostakidis and @AndrewJFowler, typing through the Antipodean night, or the comprehensive and compelling blog posts of Craig Murray, are available.  Ruptly streams from outside the courtroom providing updates from the Don’t Extradite Assange campaign team, who also produce videos to decode the legalese of proceedings.

Around forty organisations, including Amnesty International, had received accreditation to remotely observe the proceedings. However, this was revoked without warning or explanation, leaving only Reporters Without Borders (RSF) to observe on behalf of civil society organisations. RSF Director of Campaigns Rebecca Vincent stated,

We have never faced such extensive barriers in attempting to monitor any other case in any other country as we have with proceedings in the UK in Julian Assange’s case. This is extremely worrying in a case of such tremendous public interest.

Kristinn Hrafnsson, Editor-in-Chief of WikiLeaks, was first offered a seat in a room that looked down on other journalists, without a view of the screen. Perhaps due to his eloquent televised protest, he was allowed into the courtroom on subsequent days, but John Pilger, Julian’s father John Shipton and Craig Murray each day climb five flights of stairs to the viewing gallery, as the Old Bailey lifts are conveniently not working.

Despite this festival of ad hockery and lost time, and despite the prosecution demanding Yes or No answers to lengthy and complex questions in reference to hundreds of pages provided to witnesses the night before their appearance, the first four witnesses called by Julian’s defence have done a fine job of emphasising the political nature of the charges, and the journalistic nature of Assange’s and WikiLeaks’ work.  The expert statements they each provided were all prepared under the earlier indictment.

The first witness was British-American lawyer and founder of Reprieve Clive Stafford Smith, whocited numerous human rights and legal cases against unlawful actions such as kidnapping, rendition, drone strikes and torture in which WikiLeaks publications had enabled justice for his clients.  His familiarity with both the British and US justice systems meant that Stafford Smith could state confidently that while there is no public interest defence allowed under the UK Official Secrets Act, that defence is allowed in US courts.  During cross-examination, prosecution QC James Lewis clarified the US line of argument, which is that Assange is accused of publishing names, to which Stafford Smith said that he would eat his hat if that was all that was introduced at trial in the United States.  In re-examination, the indictment was re-examined to confirm that it does not refer only to names but also to ‘wilfully communicating documents relating to national defence’ and that other counts too are not limited to publishing names.

The second witness was academic and investigative journalist Mark Feldstein, Chair of Broadcast Journalism at Maryland University, whose testimony had to be discontinued due to technical dramas and recommenced the following day.  Feldstein commented on a large number of WikiLeaks publications demonstrating the range of issues and countries it has covered, stating that gathering classified information is ‘standard operating procedure’ for journalists, adding that soliciting information is ‘not only consistent with standard journalistic practice, they are its lifeblood, especially for investigative or national security reporters’. He went on: ‘My entire career virtually was soliciting secret documents or records’. Feldstein’s evidence included references to Nixon (including quotes that included profanity; nothing wakes you up at 3 am like hearing the word ‘cocksucker’ uttered to a bewigged and bewildered British court). Feldstein asserted that the Obama administration had realised it was impossible to charge Assange or WikiLeaks without also charging the New York Times and others who had published the WikiLeaks material in question, with  Lewis countering that the Obama administration had not ceased the grand jury and that it had passively received information, whereas Assange had conspired with Chelsea Manning to receive information.  Craig Murray notes that Lewis spoke between five and ten times as many words as this witness.

The third witness was Professor Paul Rogers of Bradford University, author of many books on the War on Terror and responsible for training armed forces in the law and ethics of conflict for the UK Ministry of Defence for some fifteen years.  Rogers provided testimony on the political nature of Assange and WikiLeaks’ work and on the significance of the revelations for understanding the wars in Afghanistan and Iraq. He noted that Assange was not anti-US as such but opposed to some US policy that he and many others sought to reform.  Describing the Trump administration’s hostility to transparency and journalism, he characterised the prosecution as political.  When cross-examined, Rogers refused to be reduced to Yes or No answers, as ‘these questions did not permit binary answers’.

Trevor Timm, co-founder of the Freedom of the Press Foundation, then spoke. His organisation helped such media organisations as the New York Times, the Guardian and the ABC to take up software developed by Aaron Swartz called SecureDrop, based on the anonymous dropbox pioneered by WikiLeaks so that leaks can be supplied to journalists anonymously.  Timms stated that the current indictment against Assange was unconstitutional on First Amendment (free speech) grounds, and that the Espionage Act was so widely drafted that it would even pose a threat to purchasers and readers of newspapers containing leaked information. In cross-examination, Lewis again alluded to the fact that not all of the evidence has been made available to the UK court and that it is held by the US grand jury. Timm asserted again and again that countless court decisions over centuries in the United States had upheld the First Amendment.

Chair of the board of Reprieve Eric Lewis—a US lawyer with thirty-five years’ experience who has represented Guantanamo and Afghan detainees seeking redress for torture—expanded on his five statements to the court in response to the various indictments. He confirmed that WikiLeaks documents have been essential in court cases. He also said that, should Assange be sent to the United States, he would first be held in the Alexandria City Jail under Special Administrative Measures, and after conviction would at best spend twenty years at the super-maximum-security ADX Florence prison in Colorado and at worst spend the rest of his life in a cell for twenty-two or twenty-three hours a day, unable to meet other prisoners, with exercise once a day while shackled. The prosecution became very cross during the cross-examination of this witness, complaining to the magistrate that, despite having four hours, he needed more time as the witness refused to give ‘Yes’ or ‘No’ answers. She refused to control the witness, who was giving relevant answers, to which prosecutor Lewis replied that this ‘would not happen in a real court’.  He apologised for his intemperate language after a break.

Journalist John Goetz testified about working in the consortium with other media partners and WikiLeaks while at Der Spiegel in 2010 on releases of the Afghan War Diary, Iraq War Logs and diplomatic cables. He asserted that Assange and WikiLeaks had meticulous security protocols and had undertaken great effort to redact names from documents. He testified to being somewhat irritated and annoyed by the ‘paranoid’ security measures Assange insisted upon, which he later realised were justified. He pointed out several times that the diplomatic cables only became available because Guardian journalists Luke Harding and David Leigh published the password in a book, and anyway the website Cryptome had published them all first. The defence attempted to have Goetz testify that he attended a dinner at which Assange allegedly said, ‘They are informants; they deserve to die’, which he simply did not say. The prosecution objected to this line of questioning, and the judge upheld this objection.

Pentagon Papers whistleblower Daniel Ellsberg recently turned eighty-nine, but he accomplished technological feats to appear as a witness for many hours. He had read in full the 300 pages provided by the prosecution the night before his appearance. He noted that Assange would not be able to argue that his disclosures were in the public interest because that defence does not exist under the Espionage Act, the same law under which Ellsberg had faced twelve charges and 115 years—charges that were dropped when it was revealed that the government had collected evidence about him illegally. He stated that ‘the American public needed urgently to know what was being done routinely in their name, and there was no other way for them to learn it than by unauthorised disclosure’.  He reminded the court that, unlike Assange, he hadn’t redacted a single name of an informant or CIA agent from the Pentagon Papers, and that Assange had approached the Defense and State Departments in order to more fully redact names.

Further witnesses to be called by the defence in coming weeks are outlined here by Kevin Gosztola.

Before the hearing recommenced, Reporters Without Borders attempted to deliver an 80,000-strong petition to 10 Downing Street, and were rebuffed.  In addition, several important media pieces were published, including in the UK Sunday Times, which put the case on the front page and included a full-colour magazine-feature-length piece on Julian’s partner and children. An editorial from the Times on Sunday made the case against extraditing Assange. Amnesty International conducted a video campaign that included former foreign minister Bob Carr and former senator Scott Ludlam and added over 400,000 signatures to their petition. Amnesty’s international human rights expert issued an opinion piece, echoing views also put forward by Ken Roth, head of Human Rights Watch, in various interviews.  Alice Walker and Noam Chomsky showed how ‘Julian Assange is not on trial for his personality—but here’s how the US government made you focus on it’.  One of Julian’s oldest friends, Dr Niraj Lal, wrote a moving piece about the founding philosophy of WikiLeaks and Julian’s life as a physics student.

Several documentaries have also been released; one outlining the press-freedom issues at stake called The War On Journalism: The Case of Julian Assange launched the week before the trial, and there is an excellent German public broadcasting documentary. Fran Kelly interviewed Assange’s Australian lawyer Jennifer Robinson on RN Breakfast, and Robinson once again called on the Australian government to act on behalf of a citizen.

Australian government silence has been broken by many citizen actions over a campaign stretching over ten years. Demonstrators have scaled Parliament House, organised weekly vigils outside Flinders Street Station and the Sydney Town Hall rain, hail or shine for the last two years, with arrests for occupation of the UK consulate leading to court hearings on 7 September this year. Every year, Julian’s birthday is marked with extravagant candle arrangements outside Parliament House and elsewhere, with the Greens’ consistent support finally being joined by others in the formation of the Bring Assange Home Parliamentary Group in October 2019, a group now twenty-four strong.  A petition has been submitted to our parliament and as at April 2020 it had 390,000 signatures, the fourth largest petition ever tabled. In May 2020, over 100 Australian serving and former politicians, writers and publishers, human rights advocates and legal professionals wrote to Australian Foreign Minister Marise Payne calling on the government to end its official silence. And Assange’s union remained strong, with the MEAA issuing a short video on the importance of the case, reminding members of its public and private advocacy on behalf of Assange with the government and the UK High Commissioner, and continuing to issue his press card. In the first week of the hearings, the MEAA held a briefing with Kristinn Hrafnsson beamed in from London for Australian members.

Voices supporting Assange from across the political spectrum, and among a broader chorus of civil society and media organisations, are getting louder.  The tide is turning, but will it turn in time?

Felicity Ruby is a PhD candidate at Sydney University and co-editor of a A Secret Australia Revealed by the WikiLeaks Exposés, which will be released on 1 December 2020.