CN Live! E16 The Extradition Extra Edition: Ellsberg, Pilger & Mercouris
After a powerful week for the Assange defence we invite expert witness Daniel Ellsberg, veteran journalist John Pilger and UK legal analyst Alexander Mercouris to comment.
Witnesses recall Collateral Murder attack: “Look at those dead bastards,” shooters said
By Thomas Scripps and Laura Tiernan
19 September 2020
New Zealand investigative journalist Nicky Hager testified in Julian Assange’s extradition hearing yesterday morning. Hager has extensive experience in reporting imperialist violence and intrigue. In 2017, he released the book Hit and Run with co-author Jon Stephenson exposing the killing of civilians by New Zealand and United States forces in Afghanistan. He worked with WikiLeaks in the release of US diplomatic cables from November 2010 and made use of other releases in his writing.
Hager explained that serious journalists routinely make use of classified materials when reporting on conflicts and potential state crimes. This, he said, was “generally impossible … without access to sources that the authorities concerned regard as sensitive and out of bounds. Consequently, information marked as classified is essential to allow journalism to perform its role in informing people about war, enabling democratic decision making and deterring wrongdoing.”
The Iraq and Afghanistan war logs and US embassy cables obtained by WikiLeaks, Hager said, were documents “of the highest public interest—some of the most important material I have ever used in my life.” Referring to the “Collateral Murder” video, which District Judge Vanessa Baraitser intervened to stop him describing in full, he said, “After the shooting, the pilot and the co-pilot were heard saying ‘Look at those dead bastards,’ with the other replying ‘Nice’ … My belief is … the publication of that video and those words was the equivalent of the death of George Floyd and his words ‘I can’t breathe.’ They had a profound effect on public opinion in the world.”
Prosecution lawyer James Lewis QC began his cross-examination in the usual way by insisting that Assange was not being charged in connection with the “Collateral Murder” video. Hager responded, “The way that information has an effect on the world through the news, media and public debate is not in a neat, segmented way like what might happen in a courtroom. … The war diaries and the embassy cables and the Guantanamo material and the Apache [helicopter gunship video] affect the world as a whole and not divisible parts.”
When Lewis asked a series of questions about whether Hager would “conspire” with a source, he said the question was “based on a fundamental misunderstanding of the work that someone like me does … we work with people who in most cases are breaking the law when they help us. We have to talk through with them how they can look after themselves.”
Following Hager’s testimony, defence lawyer Florence Iveson read a summary of a statement submitted by Assange lawyer Jennifer Robinson. She described being present at a meeting between Assange, Donald Trump associate Charles Johnson and Congressman Dana Rohrabacher in August 2017, arranged at the latter’s request. According to Robinson, they claimed to be acting on President Trump’s authority and presented Assange with a “win-win solution.” If Assange would name his source for the 2016 US election leaks on the Democratic Party, Assange would be offered a pardon, assurance or agreement. Assange refused to give any information and Rohrabacher returned to the US promising to discuss the matter with the president.
The prosecution responded briefly that they accepted Robinson’s report as true, but not the claims of Rohrabacher and Johnson to be representing Trump.
An exchange between the two legal teams and the judge then followed over whether the next witness, Khalid El-Masri, would have to be produced in court or simply have his written statement summarised by the defence.
El-Masri, a German citizen, was falsely identified as a terrorist while travelling in Macedonia in 2004, handed over to the CIA and taken to a “black site” in Afghanistan, where he was imprisoned and tortured for five months until being released without an apology. He brought a successful case in the European Court of Human Rights (ECHR) in 2012 and is now pursuing a case against the US through the International Criminal Court.
It was ultimately agreed that El-Masri would not be produced to testify. Assange interjected, “I refuse to allow the censorship of a victim of torture in this court.” He was again talked over and silenced by Baraitser. The WikiLeaks founder called a halt when his lawyer Mark Summers QC began to summarise El-Masri’s statement and asked for time to instruct his representatives.
When court resumed, Summers described how El-Masri was, in his own words, “beaten, shackled, hooded, sodomised … given anaesthetic and rendered unconscious” by the CIA and then flown to Afghanistan, where he was “held in a concrete cell, naked, humiliated, with a bucket for a toilet” and interrogated. When he was finally released, he was flown to Albania, “driven up a mountain road and told to get out.”
Back in Germany, he sought justice for what had happened. “Governments, both his own and those who he perceived as being responsible for what had happened to him, sought to discredit him and his account, to silence him.” When an international arrest warrant was finally issued by the Munich state prosecutor for the CIA rendition team, that warrant was not executed. “It became clear in 2010-2011 when WikiLeaks published the cables that pressures had been placed on Germany by the US not to give effect to that arrest warrant.” The cables were relied on in his case in the ECHR in 2012, which he won.
In the afternoon, cross-examination of US constitutional law scholar Carey Shenkman continued on the Espionage Act’s use against Assange. The previous day Shenkman had told the court, “I never thought, based on history, we’d see an indictment that looked like this,” describing the charges as “truly extraordinary”.
However, Shenkman’s written testimony sworn in the previous day had located the “Assange precedent” amid a ferocious assault on First Amendment rights to free speech and freedom of the press under both the Obama and Trump administrations. It explained, “More Espionage Act prosecutions of media sources under the administration of President Barack Obama were initiated than under all previous administrations combined. These prosecutions included cases against Thomas Drake, Shamai Leibowitz, Stephen Kim, Chelsea Manning, Donald Sachtleben, Jeffrey Stirling, John Kiriakou and Edward Snowden. These defendants are prevented from arguing that their disclosures were made in the public interest or to expose corruption, fraud, or war crimes.”
In court on Thursday, barrister Clair Dobbin for the US government had referred to statements by Assange’s US lawyer, the late Michael Rattner, in 2013, that Obama’s Department of Justice was “going after WikiLeaks in spades”.
“What has changed?” Dobbin asked Shenkman, challenging the defence’s case that Obama had decided not to prosecute.
Lawyers for the US government have repeatedly argued that Obama’s Department of Justice made no decision to suspend prosecution, pointing to an ongoing grand jury investigation against Assange.
What is clear from Shenkman’s own testimony, is that the Trump administration built on Obama’s repressive political legacy, prosecuting disclosures of national security information “more aggressively than any president in US history” (Shenkman), having already exceeded the number of Obama-era prosecutions in the space of just one term.
Yesterday’s cross-examination centred on the scope of the Espionage Act, with US prosecutors making clear that journalists and media outlets are now a legitimate target—especially those which are deemed “non-conventional.”
Responding to Shenkman’s brief review of Espionage Act threats against media organisations for publishing secrets—under the presidencies of Roosevelt, Truman, Nixon, Ford and George H.W. Bush—Dobbin said, “In the cases that you cite, they are almost all examples of publishers in the conventional sense. In other words, serious news outlets employing serious national defence journalists?”
Shenkman replied, “No, Beacon Press [investigated for publishing the Pentagon Papers] was the publishing arm of the Unitarian Universalist Association. These were often not mainstream news outlets at all. They were often outlets that had political views that were perceived to be contrary to the administration or that were exposing secrets or policies, that were deemed an opposition to prevailing policies.”
The Truman administration’s espionage case against Amerasia, “a tiny, niche journal with a subscription of less than 2,000 individuals,” was similarly politically motivated. It published documents leaked by China experts in the US State Department who were critical of US policy toward China after World War II. “The high-ups in the State Department, as it came out later, were furious with this and for political reasons … they brought forward a conspiracy Espionage Act case.”
Shenkman responded forthrightly to Dobbin’s suggestion that only “serious news outlets” should be exempt from prosecutions under the Espionage Act, insisting, “The First Amendment doesn’t make any such distinction”.
Shenkman rejected Dobbin’s claims that WikiLeaks was being charged for conduct that was fundamentally different from those earlier publications he had cited. For example, Amerasia’s editors and journalists were alleged to have “conspired to obtain and publish documents with insider sources” and Beacon Press published the Pentagon Papers “because they wanted a library of information to be available to the public, to scholars … which in my view is a precursor to the type of philosophy behind WikiLeaks.”
Pointing to the targeting of WikiLeaks, Shenkman asked, “Is there a legal principle to limit the application of this law … or is it a political limitation, because based on my reading of the indictment, it’s all political.”
In the day’s final session, Edward Fitzgerald QC read into evidence key excerpts from a witness statement from journalist Dean Yates. As Reuters bureau chief in Baghdad’s red zone, Yates witnessed events surrounding the “Collateral Murder” airstrike, which left two Reuters journalists dead.
Yates recalled, “Suddenly loud wailing broke out near the back of our office. I still remember the anguished face of the Iraqi colleague who burst through the door. Another colleague translated: Namir and Saeed have been killed.”
Yates described how this unprovoked murder of civilians—Namir was a photographer and Saeed a respected driver/fixer—was described by the US military: “There is no question that Coalition forces were engaged in combat operations against an insurgent force.”
As Fitzgerald read from Yates’ statement, Baraitser interjected repeatedly, claiming his account was irrelevant to proceedings. Throughout the hearing, US prosecutors have claimed the “Collateral Murder” video is not part of their case against Assange. But as Fitzgerald argued, after taking instruction from his client, the “Collateral Murder” video is connected “indivisibly” from the Iraq Rules of Engagement published by WikiLeaks and named in the US indictment. It was on the basis of these Rules of Engagement that Apache’s crew member “Crazy Horse 1-8” fired on civilians, leaving 18 dead and horrifically injuring two children.
The hearing continues on Monday.
During extradition trial, prosecutor pressures psychiatrist to change his medical diagnosis of Assange
Screen shot of Julian Assange speaking to the 2018 World Ethical Data Forum
During the extradition trial for WikiLeaks founder Julian Assange, James Lewis, the lead prosecutor, strongly suggested Assange reads the British Medical Journal to help him exaggerate his psychiatric symptoms. He speculated that Assange consulted his attorneys on how to effectively deceive doctors.
Lewis also repeatedly pressured a forensic psychiatrist, who took the witness stand in the Old Bailey Courthouse, to alter his diagnosis of Assange to match the prosecution’s view of Assange’s health.
Assange is accused of 17 counts of violating the Espionage Act and one count of conspiracy to commit a computer crime that, as alleged in the indictment, is written like an Espionage Act offense.
The charges criminalize the act of merely receiving classified information, as well as the publication of state secrets from the United States government. It targets common practices in newsgathering, which is why the case is widely opposed by press freedom organizations throughout the world.
Professor Michael Kopelman first met with Assange on May 30, 2019, and has visited with Assange numerous times during his detention at the Belmarsh high-security prison. He offered testimony on Assange’s clinical depression and the risk of suicide if Assange is extradited to the United States.
Kopelman told Lewis Assange reads the British Medical Journal “because he’s very preoccupied by his state of health.” He is a “little bit hypochondriacal.”
On April 12, 2019, a day after he was arrested and expelled from the Ecuador embassy in London, Assange wished to consult his legal team before seeing a psychiatrist. The prosecution cast this as something nefarious, but Kopelman said it was typical for Assange to speak with his attorneys before doing anything.
Lewis dissected Kopelman’s summaries of days in April and May 2019, when psychiatrists assessed Assange’s mental health condition. He referenced source material to argue Kopelman left out details that were not suitable to the defense. But as Kopelman noted multiple times, he did not meet with Assange in person until the end of May.
After Lewis read him one of several summaries from May 3, 2019, he stated Kopelman might change his opinion after going through each of the days. Kopelman maintained his “considered opinion” was well-founded.
Lewis quoted from the court transcript of previous days in the extradition trial, and he contended Assange’s engagement indicated he does not really suffer from moderate or severe depression, as Kopelman diagnosed.
Kopelman disagreed. “I cannot evaluate his mental and cognitive state from what’s in here,” he said, referring to transcripts. “He’s made a few comments.” He has “some long-standing semantic knowledge” and “replied appropriately.” But that does not mean his “cognitive state is normal.”
The lead prosecutor questioned the times Assange “self-reported” hallucinations. To which, Kopelman said the “nature of psychiatry is one relies on self-reporting,” and, “There is no MRI scanner that will show you a hallucination.”
“I don’t believe he’s got delusions,” Kopelman added. “He’s very worried about whether discussions are recorded.” He believes computers should be switched off. “In light of experiences in the embassy, that was rational anxiety.”
Around the one-year anniversary of Assange’s arrest, Stella Morris revealed to the press that she was Assange’s partner, and they had two children while he was living in the embassy.
The extradition trial was scheduled for May before it was postponed due to the COVID-19 pandemic.
Kopelman prepared two reports that included quotes from a visit with Morris, and Lewis brashly objected to the psychiatrist’s decision to withhold personal information about Morris’ relationship with Assange from the first report.
According to Kopelman, he discussed the matter with Assange’s legal team and decided they would only mention Assange had a partner but not identify the person. By the second report, it was publicly known she was his partner.
“This was not in the public domain at that point, and she was very concerned about privacy so we decided not to put it in,” Kopelman said. However, “Soon as it became in the public domain, I included it.”
Lewis scolded Kopelman, arguing he had a duty to the court that overrode not “embarrassing” Assange. It did not matter if he wanted to be sensitive to Morris’ privacy and keep it “confidential.”
In Lewis’ view, it was crucially important for Judge Vanessa Baraitser to know about Morris and his children because it could be a key “protective factor against suicide.” (Kopelman noted married people commit suicide too, and there may not be much difference at all. It’s a myth.)
Assange’s depressive state was especially severe in December 2019 and then it became moderately severe in February and March of this year, according to Kopelman. But the lockdown at Belmarsh during the pandemic led to a regression for several months.
He is apparently reluctant to “volunteer” statements to prison medical staff about his health. He drafted farewell letters to family and friends, drawn up a will, and even engaged in confession with a Catholic priest, which Kopelman documented as signs of potential suicide risk.
Assange was held in isolating confinement conditions at Belmarsh for a period, but Kopelman argued the “isolation he would experience in North America would be far worse than anything experienced in the embassy or Belmarsh.”
“If extradition became imminent,” it would be the “trigger to a suicide attempt,” Kopelman declared.
Assange was greatly concerned about Chelsea Manning, the source of documents published by WikiLeaks, which are the focus of this case. Manning was held at Alexandria Detention Center when she resisted a grand jury subpoena and attempted suicide right before she was released. This is where Assange is likely to be held in pretrial confinement.
“It just shows how awful conditions must be,” Kopelman added.
Kopelman mentioned Assange had increased symptoms of depression while in the Ecuador embassy, especially beginning in 2015. That was about three years after he was granted political asylum.
In May 2019, United Nations Special Rapporteur on Torture Nils Melzer expressed “grave concerns” about the treatment of Assange by the governments of Ecuador, Sweden, the United Kingdom, and the United States. He found their “collective persecution” amounted to “psychological torture.”
“From a strictly physical point of view, several aspects of Mr. Assange’s health condition and cognitive and sensory capacity have been, and still are, significantly impaired as a direct consequence of his long-term confinement in the Ecuadorian Embassy, without access to natural sunlight and adequate medical and dental care,” Melzer wrote.
Melzer contended, “From a psychological perspective, Mr. Assange showed all symptoms typical for prolonged and sustained exposure to severe psychological stress, anxiety and related mental and emotional suffering in an environment highly conducive to major depressive and post-traumatic stress disorders (PTSD).”
“Both medical experts accompanying my visit agreed that Mr. Assange is in urgent need of treatment by a psychiatrist of his own choice and confidence, whom he does not associate with the detaining authorities, and that his current condition is likely to deteriorate dramatically, with severe and long-term psychological and social sequels,” if extradited by the U.S. government for a trial.
Lewis attacked Melzer’s work on the Assange case as “palpable nonsense” that was “neither balanced or accurate.” He pushed Kopelman to distance himself from Melzer’s conclusions, even though it was not an “important factor” in his conclusions.
Finally, it became exceptionally petty, even for the U.S. government, as Lewis asked if his depression “prevented Mr. Assange’s solicitation or leaking of material from the U.S. government.”
Lewis pressed Kopelman on whether his depression was severe enough to affect his public speaking or coordination with media outlets nearly a decade ago. His mental health did not prevent him from “doing a chat show” for Russia Today, he added.
All of the above occurred way before Kopelman diagnosed Assange’s depressive state and determined the risk of suicide he would face if extradited to the United States.