show trial of Julian Assange

The Assange Hearing Day 12 – by Craig John Murray

We owe this man a tribute!

A less dramatic day, but marked by a brazen and persistent display of this US Government’s insistence that it has the right to prosecute any journalist and publication, anywhere in the world, for publication of US classified information. This explicitly underlay the entire line of questioning in the afternoon session.

The morning opened with Professor John Sloboda of Iraq Body Count. He is a Professor of Psychology and musicologist who founded Iraq Body Count together with Damit Hardagan, and was speaking to a joint statement by both of them.

Professor Sloboda stated that Iraq Body Count attempted to build a database of civilian deaths in Iraq based on compilation of credible published material. Their work had been recognised by the UN, EU and the Chilcot Inquiry. He stated that protection of the civilian population was the duty of parties at war or in occupation, and targeting of civilians was a war crime.

Wikileaks’ publication of the Iraqi War Logs had been the biggest single accession of material to the Iraq Body Count and added 15,000 more civilian deaths, plus provided extra detail on many deaths which were already recorded. The logs or Significant Activity Reports were daily patrol records, which recorded not only actions and consequent deaths the patrols were involved in, but also deaths which they came across.

After the publication of the Afghan war Logs, Iraq Body Count (IBC) had approached Wikileaks to be involved in the publication of the Iraq equivalent material. They thought they had accumulated a particular expertise which would be helpful. Julian Assange had been enthusiastic and had invited them to join the media consortium involved in handling the material.

There were 400,000 documents in the Iraq war logs. Assange had made very plain that great weight must be placed on document security and with careful redaction to prevent, in particular, names from being revealed which could identify individuals who might come to harm. It was however impossible to redact that volume of documents by hand. So Wikileaks had sought help in developing software that would help. IBC’s Hamit Dardagan had devised the software which solved the problem.

Essentially, this stripped the documents of any word not in the English dictionary. Thus arabic names were removed, for example. In addition other potential identifiers such as occupations were removed. A few things like key acronyms were added to the dictionary. The software was developed and tested on sample batches of telegrams until it worked well. Julian Assange was determined redaction should be effective and resisted pressure from media partners to speed up the process. Assange always meticulously insisted on redaction. On balance, they over-redacted for caution. Sloboda could only speak on the Iraq War Logs, but these were published by Wikileaks in a highly redacted form which was wholly appropriate.

Joel Smith then stood up to cross-examine for the US Government. I am sure Mr Smith is a lovely man. But sadly his looks are against him. You would certainly not enter an alleyway if he were anywhere nearby. The first time I saw him I presumed he was heading for the dock in court 11.

As is the standard prosecution methodology in this hearing, Mr Smith set out to trash the reputation of the witness. [I found this rather ironic, as Iraq Body Count has been rather good for the US Government. The idea that in the chaos of war every civilian death is reported somewhere in local media is obviously nonsense. Each time the Americans flattened Fallujah and everyone in it, there was not some little journalist writing up the names of the thousands of dead on a miraculously surviving broadband connection. Iraq Body Count is a good verifiable minimum number of civilian deaths, but no more, and its grandiose claims have led it to be used as propaganda for the “war wasn’t that bad” brigade. My own view is that you can usefully add a zero to their figures. But I digress.]

Smith established that Sloboda’s qualifications are in psychology and musicology, that he had no expertise in military intelligence, classification and declassification of documents or protection of intelligence sources. Smith also established that Sloboda did not hold a US security clearance (and thus was in illegal possession of the information from the viewpoint of the US government). Sloboda had been given full access to all 400,000 Iraq War Logs shortly after his initial meeting with Assange. They had signed a non-disclosure agreement with the International Committee of Investigative Journalists. Four people at IBC had access. There was no formal vetting process.

To give you an idea of this cross-examination:

Smith Are you aware of jigsaw identification?
Sloboda It is the process of providing pieces of information which can be added together to discover an identity.
Smith Were you aware of this risk in publishing?
Sloboda We were. As I have said, we redacted not just non-English words but occupations and other such words that might serve as a clue.
Smith When did you first speak to Julian Assange?
Sloboda About July 2010.
Smith The Afghan War logs were published in July 2010. How long after that did you meet Assange?
Sloboda Weeks.
…..

Smith You talk of a responsible way of publishing. That would include not naming US informants?
Sloboda Yes.
Smith Your website attributes killings to different groups and factions within the state as well as some outside influences. That would indicate varied and multiple sources of danger to any US collaborators named in the documents.
Sloboda Yes.
Smith Your statement spoke of a steep learning curve from the Afghan war logs that had to be applied to the Iraq war logs. What does that mean?
Sloboda It means Wikileaks felt that mistakes were made in publishing the Afghan war logs that should not be repeated with the Iraq war logs.
Smith Those mistakes involved publication of names of sources, didn’t they?
Sloboda Possibly, yes. Or no. I don’t know. I had no involvement with the Afghan War logs.
Smith You were told there was time pressure to publish?
Sloboda Yes, I was told by Julian he was put under time pressure and I picked it up from other media partners.
Smith And it was IBC who came up with the software solution, not Assange?
Sloboda Yes.
Smith How long did it take to develop the software?
Sloboda A matter of weeks. It was designed and tested then refined and tested again and again. It was not ready by the original proposed publication date of the Iraq war logs, which is why the date was put back.
Smith Redaction then would remove all non-English words. But it would still leave vital clues to identities, like professions? They had to be edited by hand?
Sloboda No. I already said that professions were taken out. The software was written to do that.
Smith It would leave in buildings?
Sloboda No, other words like mosque were specifically removed by the software.
Smith But names which are also English words would be left in. Like Summers, for example.
Sloboda I don’t think there are any Iraqi names which are also English words.
Smith Dates, times, places?
Sloboda I don’t know.
Smith Street names?
Sloboda I don’t know.
[Sloboda was obviously disconcerted by Smith’s quickfire technique and had been rattled into firing back equally speedy and short answers. If you think about it a moment, Iraqi street names are generally not English words.]
Smith Vehicles?
Sloboda I don’t know.
Smith You said at a press conference that you had “merely scratched the surface” in looking at the 400,000 documents.
Sloboda Yes.
Smith You testified that Julian Assange shared your view that the Iraqi war logs should be published responsibly. But in a 2010 recorded interview at the Frontline Club, Mr Assange called it regrettable that informants were at risk, but said Wikileaks only had to avoid potential for unjust retribution; and those that had engaged in traitorous behaviour or had sold information ran their own risk. Can you comment?
Sloboda No. He never said anything like this to me.
Smith He never said he found the process of redaction disturbing?
Sloboda No, on the contrary. He said nothing at all like that to me. We had a complete meeting of minds on the importance of protection of individuals.
Smith Not all the logs related to civilian deaths?
Sloboda No. The logs put deaths in four categories. Civilian, host nation (Iraqi forces and police), friendly nation (coalition forces) and enemy. The logs did not always detail the actions in which deaths occurred. Sometimes the patrols were the cause, sometimes they detailed what they came across. We moved police deaths from the host nation to the civilian category.

[One of the problems I personally have with IBC’s approach is that they accepted US forces’ massive over-description of the dead as “hostile”. Obviously when US forces killed someone they had an incentive to list them as “hostile” and not “civilian”.]

Smith Are you aware that when the Iraq Significant Activity Reports (war logs) were released online in October 2010, they did in fact contain unredacted names of co-operating individuals?
Sloboda No, I am not aware of that.
Smith now read an affidavit from a new player [Dwyer?] which stated that the publication of the SAR’s put co-operating individuals in grave danger. Dwyer purported to reference two documents which contained names. Dwyer also stated that “military and diplomatic experts” confirmed individuals had been put in grave danger.
Smith How do you explain that?
Sloboda I have no knowledge. It’s just an assertion. I haven’t seen the documents referred to.
Smith Might this all be because Mr Assange “took a cavalier attitude to redaction”?
Sloboda No, definitely not. I saw the opposite.
Smith So why did it happen?
Sloboda I don’t know if it did happen. I haven’t seen the documents referred.

That ended Professor Sloboda’s evidence. He was not re-examined by the defence.

I have no idea who “Dwyer” – name as heard – is or what evidential value his affidavit might hold. It is a constant tactic of the prosecution to enter highly dubious information into the record by putting it to witnesses who have not heard of it. The context would suggest that “Dwyer” is a US government official. Given that he claimed to be quoting two documents he was alleging Wikileaks had published online, it is also not clear to me why those published documents were not produced to the court and to Professor Sloboda.

We now come to the afternoon session. I have a difficulty here. The next witness was Carey Shenkman, an academic lawyer in New York who has written a book on the history of the Espionage Act of 1917 and its use against journalists. Now, partly because Shenkman was a lawyer being examined by lawyers, at times his evidence included lots of case names being thrown around, the significance of which was not entirely clear to the layman. I often could not catch the names of the cases. Even if I produced a full transcript, large chunks of it would be impenetrable to those from a non-legal background – including me – without a week to research it. So if this next reporting is briefer and less satisfactory than usual, it is not the fault of Carey Shenkman.

This evidence was nonetheless extremely important because of the clear intent shown by the US government in cross examination to now interpret the Espionage Act in a manner that will enable them to prosecute journalists wholesale.

Shenkman began his evidence by explaining that the 1917 Espionage Act under which Assange was charged dates from the most repressive period in US history, when Woodrow Wilson had taken the US into the First World War against massive public opposition. It had been used to imprison those who campaigned against the war, particularly labour leaders. Wilson himself had characterised it as “the firm hand of stern repression”. Its drafting was extraordinarily broad and it was on its surface a weapon of political persecution.

The Pentagon Papers case had prompted Edgar and Schmidt to write a famous analysis of the Espionage Act published in the Colombia Law Review in 1973. It concluded that there was incredible confusion about the meaning and scope of the law and capacity of the government to use it. It gave enormous prosecutorial discretion on who to prosecute and depended on prosecutors behaving wisely and with restraint. There was no limit on strict liability. The third or fifth receiver in the chain of publication of classified information could be prosecuted, not just the journalist or publisher but the person who sells or even buys or reads the newspaper.

Shenkman went through three historic cases of potential criminal prosecution of media under the Espionage Act. All had involved direct Presidential interference and the active instigation of the Attorney General. All had been abandoned before the Grand Jury stage because the Justice Department had opposed proceeding. Their primary concern had always been how to distinguish media outlets. If you prosecuted one, you had to prosecute them all.

[An aside for my regular readers – that is a notion of fairness entirely absent from James Wolffe, Alex Prentice and the Crown Office in Scotland.]

The default position had become that the Espionage Act was used against the whistleblower but not against the publisher or journalist, even when the whistleblower had worked closely with the journalist. Obama had launched the largest ever campaign of prosecution of whistleblowers under the Espionage Act. He had not prosecuted any journalist for publishing the information they leaked.

Claire Dobbin then rose to cross-examine on behalf of the US Government, which evidently is not short of a penny or two to spend on multiple counsel. Mrs Dobbin looks a pleasant and unthreatening individual. It was therefore surprising that when she spoke, out boomed a voice that you would imagine as emanating from the offspring of Ian Paisley and Arlene Foster. This impression was of course reinforced by her going on to advocate for harsh measures of repression.

Ms Dobbin started by stating that Mr Shenkman had worked for Julian Assange. Shenkman clarified that he had worked in the firm of the great lawyer Michael Ratner, who represented Mr Assange. But that firm had been dissolved on Mr Ratner’s death in 2016 and Shenkman now worked on his own behalf. This all had no bearing on the history and use of the Espionage Act, on which he had been researching in collaboration with a well-established academic expert.

Dobbin than asked whether Shenkman was on Assange’s legal team. He replied no. Dobbin pointed to an article he had written with two others, of which the byline stated that Shenkman was a member of Julian Assange’s legal team. Shenkman replied he was not responsible for the byline. He was a part of the team only in the sense that he had done a limited amount of work in a very junior capacity for Michael Ratner, who represented Assange, that related to Assange. He was “plankton” in Ratner’s firm.

Dobbin said that the article had claimed that the UK was illegally detaining Assange in the Ecuadorean Embassy. Shenkman replied that was the view of the UN Working Group on Arbitrary Detention, with which he concurred. Dobbin asked if he stood by that opinion. Shenkman stated that he did, but it bore no relationship to his research on the history of the Espionage Act on which he was giving evidence.

Dobbin asked whether, having written that article, he really believed he could give objective evidence as an expert witness. Shenkman said yes he could, on the history of use of the Espionage Act. It was five years since he had left the Ratner firm. Lawyers had all kinds of clients that very loosely related in one way or another to other work they did. They had to learn to put aside and be objective.

Dobbin said that the 2013 article stated that Assange’s extradition to the United States was almost certain. What was the basis of this claim? Shenkman replied that he had not been the main author of that article, with which three people were credited. He simply could not recall that phrase at this time or the thought behind it. He wished to testify on the history of the Espionage Act, of which he had just written the first historical study.

Dobbin asked Shenkman if he was giving evidence pro bono? He replied no, he was appearing as a paid expert witness to speak about the Espionage Act.

Dobbin said that the defence claimed that the Obama administration had taken the decision not to prosecute Assange. But successive court statements showed that an investigation was still ongoing (Dobbin took him through several of these, very slowly). If Assange had really believed the Obama administration had dropped the idea of prosecution, then why would he have stayed in the Embassy?

Shenkman replied that he was very confused why Dobbin would think he had any idea what Assange knew or thought at any moment in time. Why did she keep asking him questions about matters with which he had no connection at all and was not giving evidence?

But if she wanted his personal view, there had of course been ongoing investigations since 2010. It was standard Justice Department practice not to close off the possibility of future charges. But if Holder and Obama had wanted to prosecute, wouldn’t they have brought charges before they left office and got the kudos, rather than leave it for Trump?

Dobbin then asked a three part question that rather sapped my will to live. Shenkman sensibly ignored it and asked his own question instead. “Did I anticipate this indictment? No, I never thought we would see something as political as this. It is quite extraordinary. A lot of scholars are shocked.”

Dobbin now shifted ground to the meat of the government position. She invited Shenkman to agree with a variety of sentences cherry-picked from US court judgements over the years, all of which she purported to show an untrammelled right to put journalists in jail under the Espionage Act. She started with the Morison Case in the fourth appellate circuit and a quote to the effect that “a government employee who steals information is not entitled to use the First Amendment as a shield”. She invited Shenkman to agree. He declined to do so, stating that particular circumstances of each case must be taken into consideration and whistleblowing could not simply be characterised as stealing. Contrary opinions exist, including a recent 9th appellate circuit judgement over Snowden. So no, he did not agree. Besides Morison was not about a publisher. The Obama prosecutions showed the historic pattern of prosecuting the leaker not the publisher.

Dobbin then quoted a Supreme Court decision with a name I did not catch, and a quote to the effect that “the First Amendment cannot cover criminal conduct”. She then fired another case at him and another quote. She challenged him to disagree with the Supreme Court. Shenkman said the exercise she was engaged in was not valid. She was picking individual sentences from judgements in complex cases, which involved very different allegations. This present case was not about illegal wiretapping by the media like one she quoted, for example.

Dobbin then asked Shenkman whether unauthorised access to government databases is protected under the First Amendment. He replied that this was a highly contentious issue. There were, for example, a number of conflicting judgements in different appellate circuits about what constituted unauthorised access.
Dobbin asked if hacking a password hash would be unauthorised access. Shenkman replied this was not a simple question. In the present case, the evidence was the password was not needed to obtain documents. And could she define “hacking” in law? Dobbin said she was speaking in layman’s terms. Shenkman replied that she should not do that. We were in a court of law and he was expected to show extreme precision in his answers. She should meet the same standard in her questions.

Finally Dobbin unveiled her key point. Surely all these contentious points were therefore matters to be decided in the US courts after extradition? No, replied Shenkman. Political offences were a bar to extradition from the UK under UK law, and his evidence went to show that the decision to prosecute Assange under the Espionage Act was entirely political.

Mrs Dobbin will resume her cross examination of Mr Shenkman tomorrow.

COMMENT

I have two main points to make. The first is that Shenkman was sent a 180 page evidence bundle from the prosecution on the morning of his testimony, at 3am his time, before giving evidence at 9am. A proportion of this was entirely new material to him. He is then questioned on it. This keeps happening to every witness. On top of which, like almost every witness, his submitted statement addressed the first superseding indictment not the last minute second superseding indictment which introduces some entirely new offences. This is a ridiculous procedure.

My second is that, having been very critical of Judge Baraitser, it would be churlish of me not to note that there seems to be some definite change in her attitude to the case as the prosecution makes a complete horlicks of it. Whether this makes any long term difference I doubt. But it is pleasant to witness.

It is also fair to note that Baraitser has so far resisted strong US pressure to prevent the defence witnesses being heard at all. She has decided to hear all the evidence before deciding what is and is not admissible, against the prosecution desire that almost all the defence witnesses are excluded as irrelevant or unqualified. As she will make that decision when considering her judgement, that is why the prosecution spend so much time attacking the witnesses ad hominem rather than addressing their actual evidence. That may well be a mistake.

show trial of Julian Assange

The Assange Hearing Day 11 – by Craig John Murray

Yet another shocking example of abuse of court procedure unfolded on Wednesday. James Lewis QC for the prosecution had been permitted gratuitously to read to two previous witnesses with zero connection to this claim, an extract from a book by Luke Harding and David Leigh in which Harding claims that at a dinner at El Moro Restaurant Julian Assange had stated he did not care if US informants were killed, because they were traitors who deserved what was coming to them.

This morning giving evidence was John Goetz, now Chief Investigations Editor of NDR (German public TV), then of Der Spiegel. Goetz was one of the four people at that dinner. He was ready and willing to testify that Julian said no such thing and Luke Harding is (not unusually) lying. Goetz was not permitted by Judge Baraitser to testify on this point, even though two witnesses who were not present had previously been asked to testify on it.

Baraitser’s legal rationale was this. It was not in his written evidence statement (submitted before Lewis had raised the question with other witnesses) so Goetz was only permitted to contradict Lewis’s deliberate introduction of a lie if Lewis asked him. Lewis refused to ask the one witness who was actually present what had happened, because Lewis knew the lie he is propagating would be exposed.

This is my report of Lewis putting the alleged conversation to Clive Stafford Smith, who knew nothing about it:

Lewis then took Stafford Smith to a passage in the book “Wikileaks; Inside Julian Assange’s War on Secrecy”, in which Luke Harding stated that he and David Leigh were most concerned to protect the names of informants, but Julian Assange had stated that Afghan informants were traitors who merited retribution. “They were informants, so if they got killed they had it coming.” Lewis tried several times to draw Stafford Smith into this, but Stafford Smith repeatedly said he understood these alleged facts were under dispute and he had no personal knowledge.

This is my report of James Lewis putting the same quote to Prof Mark Feldstein, who had absolutely no connection to the event:

Lewis then read out again the same quote from the Leigh/Harding book he had put to Stafford Smith, stating that Julian Assange had said the Afghan informants would deserve their fate.

James Lewis QC knew that these witnesses had absolutely no connection to this conversation, and he put it to them purely to get the lie into the court record and into public discourse. James Lewis QC also knows that Goetz was present on the occasion described. The Harding book specifies the exact date and location of the dinner and that it included two German journalists, and Goetz was one of them.

It is plainly contrary to natural justice that a participant in an event introduced into the proceedings should not be allowed to tell the truth about it when those with no connection are, tendentiously, invited to. Whatever the rules of evidence may say, Baraitser and Lewis have here contrived between them a blatant abuse of process. It is a further example of the egregious injustices of this process.

If that does not make you angry, try this. Daniel Ellsberg was to give evidence this afternoon. Edward Fitzgerald QC applied for his videolink evidence to be heard at 3.15pm which is 07.15am in California where Dan lives. Baraitser insisted it could not be put back beyond 2.30 pm, thus forcing an 89 year old man to give evidence at 6.30am. Simply stunning.

As it happens, when Dan is 108 and on his death bed he will still be able to outwit James Lewis QC while reading Moby Dick and playing the ukelele, but the continual and cynical lack of concern for the defence just keeps punching you in the face.

John Goetz was the first witness this morning. Senior Investigations Editor at NDR since 2011, he was at Der Spiegel from 2007-11. He had published a series of articles on German involvement in the Afghan War, including one on a bombing raid on Kunduz which massacred civilians, for which he had won Germany’s highest journalism award. In June 2010 he went to London to meet with Wikileaks and the Guardian to work on the Afghan War Logs.

In a series of meetings in “the bunker” at the Guardian with the NYT and the other major media partners, the partnership was formed whereby all would pool effort in researching the Afghan War Logs but each party would choose and publish his own stories. This cooperative venture between five major news organisations – normally rivals – was unique at the time.

Goetz had been struck by what seemed to him Julian Assange’s obsession with the security of the material. He insisted everything was encrypted and strict protocols were in place for handling the material. This had been new territory for the journalists. The New York Times was tasked with liaison with the White House, the Department of Defence and State Department on questions of handling the material.

Asked by Mark Summers to characterise the Afghan War Logs, Goetz said that they were fascinating first-hand material giving low level reports on actual operations. This was eye witness material which sometimes lacked the larger view. There was abundant first-hand evidence of war crimes. He had worked with Nick Davies of the Guardian on the Task Force 373 story.

Julian Assange had been most concerned to find the names in the papers. He spent a lot of time working out technical ways to identify names in the tens of thousands of documents. Mark Summers asked f he had been looking for the names for the purpose of redaction, and Goetz confirmed it was for redaction. He had interviewed Assange on the harm minimisation programme of the operation.

On behalf of the group Eric Schmitt of the NYT had been speaking to the White House and he had sent an email identifying 15,000 documents the White House did not want published to prevent harm to individuals or to American interests. It was agreed not to publish these documents and they were not published. Summers asked Goetz if he was aware of any names that slipped through, and he replied not.

Goetz was not so involved for family reasons when the consortium went through the same process with the Iraq war logs. But he knew that when a large number of these were released in the USA under a FOIA request, it was seen that Wikileaks had redacted those they released more heavily than the Department of Defense did. Goetz recalled an email from David Leigh of the Guardian stating that publication of some stories was delayed because of the amount of time Wikileaks were devoting to the redaction process to get rid of the “bad stuff”.

Summers then turned to the investigation of Khaled el-Masri. Goetz stated that back in 2005–6 when in his first stint at NDR he had looked into what seemed at the time the extraordinary claims of German citizen el-Masri, who stated that he had been kidnapped in Skopje, flown shackled and hooded around the world, subjected to constant beatings and torture, eventually ending up in what he believed to be a US detention facility in Afghanistan. At the time his claims had seemed difficult to believe.

[If I might interject a personal note here, this is around the time I myself blew the whistle on the torture programme, as a UK ambassador. I was effectively called a liar by then Foreign Secretary Jack Straw to parliament who described the extraordinary rendition programme as a “conspiracy theory”. I know how hard it was to be believed then.]

Goetz’s investigations had shown the story to be true. Using rendition flight logs and hotel records, he had even managed to track the actual perpetrators to North Carolina, and had spoken to some of them there. Enough evidence was produced for arrest warrants against 13 American agents or soldiers to be issued in Munich. Summers asked Goetz whether they were arrested. He replied that no, to their surprise, nothing was done to deliver the arrest warrant to the USA.

Then when the Wikileaks diplomatic cables were released, they had been able to see the pressure brought on the German government not to deliver the arrest warrant. The US had told Germany that to do so would have serious repercussions for the US/German relationship.

Summers asked if Goetz was involved in working through the cables for Der Spiegel. Goetz replied he was. In addition to the main media partners, Wikileaks had brought in a second phase of local media partners in the third countries involved, who might better be able both to redact and to know what were the important stories for a local audience. This had introduced some delays which were frustrating for Goetz.

Summers asked how thorough the process of redaction was. Goetz said that the original strict protocols remained in place and he did not know of anybody who had come to any harm. The State Department was actively engaged in the process. P J Crowley and others would call and request redactions and omissions. These were made. Eventually though a decision was taken by the US Government to withdraw cooperation.

Baraitser issued a time warning.

Summers then asked about events leading to the publishing of the unredacted cables. Goetz said this was a complicated process. It started when Luke Harding and David Leigh published a book in February 2011 containing the password to the online cache of encrypted cables. This was discussed on various mirroring sites, and eventual publication of the full cache by Cryptome after Die Freitag became involved. Cryptome was at that time very well known and an important source for journalists.

Summers then asked about the breakdown of relationships between Wikileaks and the Guardian. It was at this point that Baraitser ruled that Summers was not allowed to ask about what happened at the dinner he attended at El Moro restaurant. Summers made a formal request, as Lewis had introduced the subject with other witnesses who unlike Goetz had not been there. Lewis objected, and Baraitser said no.

James Lewis QC then cross-examined for the US Government and went straight to the publication of unredacted cables by Wikileaks in August and September 2011. Goetz referred to his earlier evidence on the releasing of the password, and said that Cryptome published first. Lewis countered that on 29 August 2011 Wikileaks had released 133,877 cables together with a statement that this was done “in accordance with Wikileaks’ commitment to maximising impact and making information available to all”. This was two days before Cryptome published.

A rather chaotic period ensued. Julian cried out from the dock that this was a misquote. He was warned he would be excluded from court by Baraitser. It turned out it was a misquote, and what I give above is the corrected version. There was then some rather confused questioning between Goetz and Lewis, of which the upshot was that those were unclassified and/or redacted cables (a quarter of the cache). Goetz said he could not comment to Lewis’s suggestion that some had names marked “strictly protect”.

Lewis suggested that after the collaboration, the material was just dumped. Goetz said no. Wikileaks had invested a lot of time, money and staff resources in the programme and from detailed discussions he knew they intended it to continue to roll out for at least another year. Then Cryptome had published.

Lewis quoted from a Guardian article of 1 September in which the original media partners, including Der Spiegel, condemned the release of the unredacted documents. He asked Goetz whether the 15,000 withheld cables had also been “dumped”? Goetz replied they were not cables, they were Afghan war logs, and no, not to his knowledge.

Lewis then said there was evidence that called Assange thoughtful, humorous and energetic. Did Goetz agree? He said yes. Lewis then quoted Christine Assange on what a good father her son was, and invited Goetz to comment. Goetz replied he was in no position to know.
[It is hard to explain this somewhat sinister finishing questioning. Possibly to counter psychiatric evidence?]

In re-examination by Mark Summers, Goetz stated that while the cables redaction process was going on, no names at risk had been published. To his knowledge, nobody had ever been harmed as a result of publication. He knew from his close involvement that Assange had tried very hard to prevent the publication of the unredacted cables. He had pleaded with Die Freitag.

In the afternoon, the witness was Dan Ellsberg, doyen of whistleblowers. Born in Chicago in 1931, he was educated at Harvard and Cambridge. He served in the Marines from 1954–7, and from 1964–5 was Special Assistant to the US Secretary of Defence. He was then involved in the making of an official classified 47-volume report entitled History of Decision Making in Vietnam.

Ellsberg briefly explained that the report showed that the war in Vietnam had been both continued in the knowledge that it could not be won. It showed that both the public and Congress had repeatedly been lied to. He had leaked the report to lawmakers and then the public as The Pentagon Papers. This had resulted in the famous case on prior restraint on publication. There had also been a less well-known criminal case against him personally under the Espionage Act. This had been dismissed with prejudice by the court.

Asked by Edward Fitzgerald to comment on the Wikileaks/Manning publication on Afghanistan, Ellsberg replied that he saw extremely strong parallels with his own case. These papers had the capability of informing the public of the progress of the war and the limited possibility that it could be brought to a successful conclusion at all. The Afghan War Logs showed operational-level information not a wider view, but the effect was similar. He strongly identified with both the source and the process of publication.

Fitzgerald then asked Ellsberg whether Assange held political opinions relevant to this publication. Ellsberg said it was absurd for the prosecution to argue otherwise. He had himself been motivated by his political views in his publication and Assange’s views were very similar. He had held very interesting discussions with Assange and felt a great affinity with him. They both believed that there was a great lack of transparency to the public over government decisions. The public were fed much information that was false.

When the public had so little genuine information and were fed so much false information, real democracy was not possible. An example was the Iraq War, clearly an illegal war of aggression in breach of the UN charter, sold on lies to the public.

The Afghan War Logs were similar to low-level reports Ellsberg had himself written in Vietnam. It was the same thing; the invasion and occupation of a foreign country against the wishes of the majority of its population. That could only bring defeat or endless conflict: 19 years so far. The war logs had exposed a pattern of war crimes: torture, assassination and death squads. The one thing that had changed since Vietnam was that these things were now so normalised they were classified below Top Secret.

All the Pentagon Papers were Top Secret. None of the Wikileaks documents were. They were not just below Top Secret, they had no restricted distribution classifications. This meant that by definition there should be nothing genuinely sensitive, and certainly not life-endangering, in papers of this classification.

Fitzgerald asked him about the Collateral Murder video. Ellsberg stated that it definitely showed murder, including the deliberate machine gunning of a wounded and unarmed civilian. That it was murder was undoubted. The dubious word was “collateral”, which implies accidental. What was truly shocking about it was the Pentagon reaction that these war crimes were within the Rules of Engagement. Which permitted murder.

Edward Fitzgerald asked whether Ellsberg was allowed to put forward the question of intention at his trial. He replied no, the distribution of classified material outside those designated to receive it was an offence of strict liability under the 1917 Espionage Act. This was absolutely inappropriate to trials of whistleblowers. “I did not get a fair trial and nor have recent whistleblowers in the USA. Julian Assange could not get a fair trial.”

Cross-examining for the US Government, James Lewis QC asked Ellsberg to confirm that at the time he copied the Pentagon Papers he was working for the Rand Corporation. He said yes. Lewis said that Assange was not being prosecuted for publication of the Collateral Murder video. Ellsberg said that the Collateral Murder video was essential to an understanding of the Rules of Engagement. Lewis countered that Assange was not being charged for publication of the Rules of Engagement. He was only being charged for publication of unredacted names of those who might come to harm.

Ellsberg replied that he had read the superseding indictment and that Assange was being charged with obtaining, receiving and possession of material including the Rules of Engagement and the Collateral Murder video, and all the documents. On publishing, he was only charged with the names. Lewis said the other charges related to conspiracy with Chelsea Manning. Ellsberg replied “Yes. They are still charges.”

Ellsberg quoted US Assistant Attorney Gordon Kromberg stating that prosecution was for documents up to Secret level containing the names of those “who risked their lives and freedom while helping the USA”. Lewis contrasted this with Ellsberg “when you published the Pentagon Papers you were very careful what you gave to the media”. Ellsberg replied that he withheld three or four volumes not to cause difficulties to diplomatic efforts to end the war.

Lewis suggested he was protecting individuals. Ellsberg said no; if he released those documents, the US government might have used it as an excuse to exit diplomacy and continue the war. Lewis asked if there were names in the Pentagon Papers that would risk harm to them. Ellsberg replied yes. In one case, a clandestine CIA agent was named, involved in the CIA assassination of a major Vietnamese politician. He was a personal friend of Ellsberg and Ellsberg had thought hard about it, but had left him in.

Lewis Asked Ellsberg whether he had read the article “Why Wikileaks is Not the Pentagon Papers” by Floyd Abrams, who had represented the New York Times in the Pentagon Papers case. Ellsberg replied he had read several articles like this by Abrams. He did not know Abrams. He had only been involved in the civil case, not the criminal one. He had seen him once, at an awards ceremony long after.

Lewis said that Abrams had written that Ellsberg had withheld four volumes, whereas “can anyone doubt” that Assange would have published all of them? Ellsberg replied he disagreed, Abrams had never had one minute of discussion with him or Assange. “He does not understand my motives at all in his article”. The position he outlines is widely held by those who want to criticise Julian Assange, Chelsea Manning and Edward Snowden while pretending to be liberal.

What he writes is simply untrue. Julian Assange withheld 15,000 files. He went through a long, hard process of redaction. He requested help from both the State Department and Department of Defence on redaction. I have no doubt Julian would have removed the volumes as I did, in my place. He had no intention to name names.

Ten years later, the US Government has still not been able to name one single individual who was actually harmed by the Wikileaks releases. I was shocked that Kromberg should make that allegation while offering no evidence. As nobody was hurt, clearly the risk was never as high as they claimed – as indeed the document classification would tell you.

They said exactly the same of me. They said CIA agents and those helping the USA would be hurt. “They said I would have blood on my hands.”

There now followed an extraordinary “question” from James Lewis QC who was permitted to read out about 11 paragraphs from various locations in one of Kromberg’s rambling affidavits, in which Kromberg said that as a result of Wikileaks publication, some US sources had had to leave their homeland, go into hiding, or change their names, in a number of countries, including Afghanistan, Iraq, Iran, Syria, Libya, China and Ethiopia. Some individuals in Afghanistan and Iraq had subsequently disappeared. The Taliban were on record as saying that those who cooperated with US forces would be killed. One Ethiopian journalist was forced to flee Ethiopia after being named as a US source. The US Embassy in China reported threats had been made against some of their named Chinese sources. Wikileaks material was found in the possessions of Osama Bin Laden after he was shot. Lewis asked in a furious voice “How can you possibly, honestly say that nobody was harmed?”
Ellsberg With all these people who felt they were in danger, of course I am sorry it was inconvenient for them, and that is regrettable. But was any one of them actually physically harmed? Did one of them actually suffer the claimed physical consequences?
Lewis You call it regrettable that people were put at risk. Is it your position that there was absolutely no harm caused by the publication of the names of these individuals?
Ellsberg Assange’s actions are absolutely antithetical to the notion that he deliberately published these names. Had hundreds been harmed, that would count against the great good done by publication of the information. No evidence is produced that any actual harm came to them. But his has to be put in the context of the policies which Assange was trying to change, invasions that led to 37 million refugees and 1 million deaths. Of course some people could not be located again in a war that killed a million people and displaced 37 million. The government is extremely hypocritical to pretend a concern for them against their general contempt for Middle Eastern lives. They had even refused to help redact the names. This is a pretence at concern.
Lewis What about the disappeared? Is it not common sense that some had been forced to disappear or flee under another name?
Ellsberg It does not seem to me that that small percentage of those named who may have been murdered or fled, can necessarily be attributed as a result of Wikileaks, when they are in among more than 1 million who have been murdered and 37 million who have fled.

Lewis then asked Ellsberg if it was true he had held an encrypted back up copy of the Manning material for Assange. Ellsberg replied it was; it had subsequently been physically destroyed.

In re-examination, Fitzgerald took Ellsberg to a passage in the Kromberg affidavit which stated that the US Government could not positively attribute any death to the Wikileaks material. Ellsberg said that was his understanding, and had been said at the Manning trial. He was shocked. It was just like Iraqi WMD. He had at first been inclined to believe the government on Iraqi WMD, just as he had first been inclined to believe the government on deaths caused by Wikileaks releases. In both cases it had proved they were making it up.

COMMENT

The court heard a great deal more truth than it could handle today, and great effort was put into excluding more truth. The US Government succeeded in preventing John Goetz eyewitness contradicting their promulgation of Luke Harding’s lie about what Assange said at El Moro. The US Government also objected, successfully so far, to Khaled el-Masri’s giving evidence on the grounds that he will allege he was tortured in the USA. Given that the European Court of Human Rights and the German courts had both found el-Masri’s story to be true, only in the wacky world of Lewis and Baraitser could it be considered wrong for him to tell the truth in court.

Please share this article by every means at your disposal as all of us reporting this truthfully are suffering extreme social media shadow banning and other suppression.

show trial of Julian Assange

The Assange Hearing Day 10 – by Craig John Murray

The gloves were off on Tuesday as the US Government explicitly argued that all journalists are liable to prosecution under the Espionage Act (1917) for publishing classified information, citing the Rosen case. Counsel for the US government also argued that the famous Pentagon Papers supreme court judgement on the New York Times only referred to pre-publication injunction and specifically did not preclude prosecution under the Espionage Act. The US Government even surmised in court that such an Espionage Act prosecution of the New York Times may have been successful.

It is hard for me to convey to a British audience what an assault this represents by the Trump administration on Americans’ self-image of their own political culture. The First Amendment is celebrated across the political divide and the New York Times judgement is viewed as a pillar of freedom. So much so that Hollywood’s main superstars are still making blockbusters about it, in which the heroes are the journalists rather than the actual whistleblower, Dan Ellsberg (whom I am proud to know).

The US government is now saying, completely explicitly, in court, those reporters could and should have gone to jail and that is how we will act in future. The Washington Post, the New York Times, and all the “great liberal media” of the USA are not in court to hear it and do not report it, because of their active complicity in the “othering” of Julian Assange as something sub-human whose fate can be ignored. Are they really so stupid as not to understand that they are next?

Err, yes.

The prosecution’s line represented a radical departure from their earlier approach which was to claim that Julian Assange is not a journalist and to try and distinguish between his behaviour and that of newspapers. In the first three days of evidence, legal experts had stated that this gloss on the prosecution did not stand up to investigation of the actual charges in the indictment. Experts in journalism also testified that Assange’s relationship with Manning was not materially different from cultivation and encouragement by other journalists of official sources to leak.

By general consent, those first evidence days had gone badly for the prosecution. There was then a timeout for (ahem) suspected Covid among the prosecution team. The approach has now changed and on Tuesday a radically more aggressive approach was adopted by the prosecution asserting the right to prosecute all journalists and all media who publish classified information under the Espionage Act (1917).

The purpose of the earlier approach was plainly to reduce media support for Assange by differentiating him from other journalists. It had become obvious such an approach ran a real risk of failure, if it could be proved that Assange is a journalist, which line was going well for the defence. So now we have “any journalist can be prosecuted for publishing classified information” as the US government line. I strongly suspect that they have decided they do not have to mitigate against media reaction, as the media is paying no attention to this hearing anyway.

I shall now continue my exposition of the questioning of Eric Lewis. I shall not set out as much of this in full detail as dialogue as I did yesterday, but will do so at key points in the summary.

James Lewis QC Returning to the European Court of Human Rights judgement in the case of Babar Ahmad, you state that their finding that solitary confinement is permissible did not take into account more recent studies such as the 2020 Danish study by Wildeman and Andersen. Do you say this study would have reversed the ECHR decision?
Eric Lewis That is impossible to say. I hope that if the ECHR had before it the large body of evidence on solitary confinement available today, the judgement may have been different.
James Lewis QC What are the five limitations to their study which Wildemann and Andersen mention?
Eric Lewis I don’t have it in front of me.
James Lewis QC Why did you not mention the five limitations in your report? They state that their methodology is strictly observational and cannot be used to prove cause and effect.
[The report in effect shows a much higher suicide rate post-incarceration among those who had been subjected to solitary confinement, from a very large sample of ex-prisoners.]
Eric Lewis I could have written hundreds of pages on recent social sciences developments on solitary confinement. This is just one such report.
James Lewis QC You were just fishing about for something, omitting details which counter your opinion.
Eric Lewis There is a huge amount of data, including from the US Bureau of Prisons. You just picked out one caveat of one report.
James Lewis QC Please keep your answers concise. The situation has changed due to the Cunningham Mitigation. Do you know what that is?
Eric Lewis Yes
James Lewis QC Why did you not mention it in your report?
Eric Lewis Because it is not relevant. A number of recommendations were set out, which have not been implemented in practice.
James Lewis QC Gordon Kromberg has produced the Cunningham Mitigation for us. In November 2016, in settlement of an 8th Amendment claim, it was admitted that conditions for mental health treatment in the Florence Colorado ADX are unsatisfactory and a large number of measures were agreed. Do you agree with Mr Kromberg that the Cunningham Mitigation has improved matters.?
Eric Lewis In some ways it has improved matters, in other ways things have gotten worse.

James Lewis QC then proceeded to state in response to Eric Lewis’s written statement on Covid, that Gordon Kromberg affirmed that as of 2 September there was no Covid in the Alexandra Detention Centre where Assange would be kept pre-trial. Eric Lewis countered that levels of Covid in federal prisons in the USA are 18%.

James Lewis QC You stated in the press that the maximum sentence is 340 years when now you state it is only 175 years. You miscalculated didn’t you? You took 20 years per count as the base when it should be 10.
Eric Lewis It was a mistake in an interview.
James Lewis QC You don’t really believe in 175 years maximum sentence, do you? It’s just a soundbite.
Eric Lewis started to answer and James Lewis QC cut him off. Edward Fitzgerald rose and objected that the witness must be allowed to answer. Baraitser agreed.
Eric Lewis The US government has called this one of the biggest cases in history. Espionage convictions frequently attract long sentences. Pompeo has categorised Wikileaks as a hostile intelligence agency. The government asked for 60 years for Chelsea Manning. I considered the charges in relation to the official sentencing guidelines.
James Lewis QC. Gordon Kromberg has testified that only a tiny fraction of all federal defendants attract the maximum sentence. The sentencing guidelines stipulate no unwarranted disparity with similar convictions. Jeffrey Sterling was a CIA agent convicted of selling secrets on Iran to Russia. He had faced a possible maximum sentence of 130 years, but had received only 42 months.
Eric Lewis The prosecution asked for a much longer sentence. In fact that was a very unique case not comparable…
James Lewis QC Why did you not give a realistic estimate and not a soundbite?

[In fact James Lewis’ categorisation of the Jeffrey Sterling case is entirely tendentious and it is hardly a sensible comparator. Sterling was a rare black CIA officer, involved in a long and bitter dispute with his employer over racial discrimination, convicted on purely circumstantial evidence of giving information to an American journalist about a completed CIA operation to leak false Iranian plans to Russia. Sterling was not accused of leaking to Russia. The entire case was very dubious.]

Eric Lewis I followed sentencing guidelines. I gave what I calculated as the statutory maximum, 175 years, and an estimate from my experience of the very lightest sentence he could expect, 20 years. Sterling got well below the guidelines and the judge explained why.

James Lewis QC now ran through a couple more cases, and stated that the longest sentence ever given for unlawful disclosure to the media was 63 months – presumably not counting Chelsea Manning. Eric Lewis replied that the specific charges laid in the Assange indictment relate to disclosure to a foreign power, not to the media, and of information helpful to the enemy. Sentences for the counts Assange was charged on were much higher.

James Lewis QC stated that sentencing was by an independent federal judge who had life tenure, to free them from political influence. There was brief to and fro about the circumstances in which a federal judge might be impeached. The judge assigned the Assange case was Claude Hilton, who had been on the bench since 1985. James Lewis QC challenged Eric Lewis as to whether he thought Claude Hilton was fair, and Eric Lewis replied that Hilton had a reputation as a heavy sentencer.

James Lewis QC then asked Eric Lewis whether he accepted that the US Department of Justice had sentencing principles in place which specifically guarded against unnecessarily long prison sentences. Eric Lewis replied that the USA had the highest percentage of its population in jail of any country in the world.

Counsel for the US Government James Lewis QC then stated he would turn to the First Amendment issue.

James Lewis QC You suggest that the First Amendment precludes this prosecution.
Eric Lewis Yes, There has never been a prosecution of a publisher under the Espionage Act for publication of classified information.
James Lewis QC Are you familiar with the Rosen Case of 2006. This was precisely the same charge as Assange now faces, 793 (g) of the Espionage Act, conspiracy to transmit classified information to those not entitled to receive it. Have you read the case?
Eric Lewis Not in a long while, because ultimately it was not proceeded with.

[James Lewis read through lengthy extracts of the Rosen judgement, which I do not have in front of me and was unable to get down verbatim. What follows is therefore gist not transcript].

James Lewis QC In the Rosen case, it is made plain that the receiver, not just the discloser, is liable to prosecution under the Espionage Act. The judge noted that although the Espionage Act of 1917 had been criticised for vagueness, Congress had never felt the need to clarify it. It also noted that much of the alleged vagueness had been resolved in various judicial interpretations. It noted the fourth circuit had rejected a first amendment defence in the case of Morison.
Eric Lewis Morison is different. He was a leaker not a publisher.
James Lewis QC The Rosen judgement also goes on to state that vagueness does not come into play where there is clear evidence of intent.
Eric Lewis When you consider the 100 year old Espionage Act and that there has never been a prosecution of a publisher, then intent…
James Lewis QC [interrupting] I want to move on from intent to the First Amendment. There are supreme court judgements that make it clear that at times the government’s interest in national security must override the First Amendment.
Eric Lewis In times of imminent danger and relating to immediate and direct damage to the interests of the United States. It is a very high bar.
James Lewis QC The Rosen judgement also notes that the New York Times Pentagon Papers case was about injunction not prosecution. “The right to free speech is not absolute”.
Eric Lewis Of course. The arguments are well rehearsed. Movement of troop ships in time of war, for example; cases of grave and immediate danger. In the Pentagon Papers Ellsberg was, like Assange, accused of putting named US agents at risk. The bar for overriding the First Amendment is set very high.
James Lewis QC [Reading out from a judgement which I think is still the Rosen judgement but it was referred to only by bundle page.] He also notes that serial, continuing disclosure of secrets which harm the national interest cannot be justified. It therefore follows that journalists can be prosecuted. Is that what he says, Mr Lewis?
Eric Lewis Yes, but he is wrong.
James Lewis QC Do you accept that the Pentagon Papers judgement is the most relevant one?
Eric Lewis Yes, but there are others.
James Lewis QC A close reading of the Pentagon Papers judgement shows that the New York Times might have been successfully prosecuted. Three of the Supreme Court judges specifically stated that an Espionage Act prosecution could be pursued for publication.
Eric Lewis They recognised the possibility of a prosecution. They did not say that it would succeed.
James Lewis QC So your analysis that there cannot be a prosecution of a publisher on First Amendment grounds is incorrect.

Eric Lewis gave a lengthy answer to this, but the sound on the videolink had been deteriorating and had in the public gallery become just a series of electronic sounds. The lawyers carried on, so perhaps they could hear, but I know Julian could not because I saw him trying to communicate this to his lawyers through the bulletproof glass screen in front of him. He had difficulty in doing this as he was behind them, and they had their backs to him and eyes fixed on the video screen.

James Lewis QC I challenge you to name one single judgement that states a publisher may never be prosecuted for disclosing classified information?

Eric Lewis gave another long answer that appear to reel off a long list of cases and explain their significance, but again I could hear only a few disjointed words. The sound eventually improved a bit.

Eric Lewis There has been an unbroken line of the practice of non-prosecution of publishers for publishing national defence information. Every single day there are defence, foreign affairs and national security leaks to the press. The press are never prosecuted for publishing them.
James Lewis QC The United States Supreme Court has never held that a journalist cannot be prosecuted for publishing national defence information.
Eric Lewis The Supreme Court has never been faced with that exact question. Because a case has never been brought. But there are closely related cases which indicate the answer.
James Lewis QC Do you accept that a government insider who leaks classified information may be prosecuted?
Eric Lewis Yes.
James Lewis QC Do you accept that a journalist may not aid such a person to break the law?
Eric Lewis No. It is normal journalistic practice to cultivate an official source and encourage them to leak. Seymour Hersh would have to be prosecuted under such an idea.
James Lewis QC Do you accept that a journalist may not have unauthorised access to the White House?
Eric Lewis Yes.

James Lewis then started to quote a judgement on White House access, then appeared to drop it. He then said he was turning to the question of whether this was a political extradition.
James Lewis QC Do you have any qualifications in social science?
Eric Lewis I have a degree in Public International Affairs from the Woodrow Wilson School of International Relations.
James Lewis QC Have you published any peer reviewed publications?
Eric Lewis No.
James Lewis QC You opined in another extradition case, that of Dempsey, that it was based upon political opinion. The High Court of England described your evidence as “pure conjecture”.
Eric Lewis Yes, that was their view. Dempsey was en route to Syria and approached at an airport by FBI agents. He explained to them that he was going to Syria to work with an anti-Assad group. Nothing was done. But by 2016 policy towards Assad had changed and Dempsey was charged. My evidence was about a change of policy, not political opinions.
James Lewis QC Turning to the expert evidence of Prof Feldstein last week, do you agree with his statement that while the Obama administration did not take the decision to prosecute, he did not take the decision not to prosecute. Do you agree?
Eric Lewis No. I believe that is predicated on a fundamental misunderstanding of how the Justice Department works.
James Lewis QC Do you have first-hand knowledge or sources for your opinion?
Eric Lewis No.
James Lewis QC So your information is only from newspapers.
Eric Lewis And TV interviews and statements.
James Lewis QC Statements like those from Matthew Miller who had left the Justice Department two years before he spoke to the Washington Post?
Eric Lewis Yes, but he remained close to Attorney General Eric Holder.
James Lewis QC Do you agree with Gordon Kromberg that prosecuting decisions are taken in line with federal guidelines that preclude political prosecution?
Eric Lewis No. Not under William Barr. The system is now top down political prosecution.
James Lewis QC So you claim the guidelines are not followed?
Eric Lewis I do. So do the 2,600 former federal prosecutors who called for Barr’s resignation and the 1,000 former prosecutors who protested the Roger Stone commutation. Or Judge Gleeson in his reports on political prosecution decisions.
James Lewis QC Do you accuse Gordon Kromberg of bad faith?
Eric Lewis I don’t know him. But I do know there is disclosure of heavy political pressure in this case.

There followed some discussion on Trump’s changing relationship with Wikileaks over the years, and also of the Classified Information Protection Act and whether it hampers the defence in disclosure and in taking instruction from the accused. This was to be discussed in greater detail with the next witness.

Edward Fitzgerald then led the witness in re-examination. He asked Eric Lewis to mention the television interviews he had referred to in noting the political change from Obama to Trump. Eric Lewis cited Sarah Sanders saying “we did something” and contrasting this with Obama’s inaction, and Eric Holder stating that they had decided not to prosecute Assange under the Espionage Act as he was not acting for a foreign power.

Edward Fitzgerald then asked about the pressure put on prosecutors in the Eastern District of Virginia to bring the present prosecution. Eric Lewis referred to the article by Adam Goldman in the New York Times to this effect. Ten days after this article the Justice Department stated it was a priority to prosecute Assange.

Lewis explained that William Barr had made explicit that prosecution was subject to political direction. He subscribed to the Unitary Executive Theory and held that all prosecution decisions were by or on behalf of the President. Barr had set this out in a memo that stated directly that prosecutors were “merely the hand” of the Presidency. This was not theory. This was how the Justice Department was now run. Many federal prosecutors had resigned. Many had refused to touch the Assange prosecution. “Mr Kromberg, as is his right, did not.”

Edward Fitzgerald then noted that James Lewis had queried Eric Lewis’s qualifications to comment on prison conditions. Yet for the prosecution, US Assistant Attorney Gordon Kromberg had submitted voluminous comments on prison conditions. Did Mr Kromberg have academic qualifications in penology as required by James Lewis? Eric Lewis replied that he believed not, and certainly he had no doubt he himself had greatly more practical experience of prison conditions than Mr Kromberg. Mr Kromberg’s exposition of official policy was doubtless correct, but it bore no relation to the actual conditions in jails.

On solitary confinement, Edward Fitzgerald outlined the UN’s Mandela rules, under which 22 hours or more in a cell a day and no significant human contact constitute solitary confinement. Lewis replied that the SAM regime would definitely breach the Mandela rules.

The next witness was Mr Thomas Durkin. He is an attorney practising for 47 years, licensed to appear in the Supreme Court. From 1973–8 he was a US Assistant Attorney and since then has been in private practice. He teaches law at Loyola and has received a lifetime achievement award from the Illinois Association of Criminal Lawyers. He also appeared by videolink.

Edward Fitzgerald asked Mr Durkin about the special problems of cases working with classified materials. Durkin said that the biggest problem is that you cannot discuss classified disclosure material with your client. You can only look at the material on a special computer in a secure location – a SCIF – and have to prepare your material there. Mr Assange will not know what his lawyers have learned, and nor will they be able to ask him what the material relates to or signifies. This is an incredibly difficult hardship in taking instructions and preparing a defence.

Edward Fitzgerald asked Mr Durkin if there is a real chance that Julian Assange will receive an effective rest-of-life jail sentence. Durkin replied that this was a very likely possibility. Looking through the counts and the enhancements that might apply, he would rate the offences at 38, 40 or 43 points on the sentencing scale. That would put the range at 235 months to life, and there were multiple counts that could be sentenced consecutively. Durkin said that based on his extensive experience of national security trials, he would expect a sentence of 30 to 40 years. The government position was that Assange was more to blame than Manning. They had asked for 60 years for Chelsea Manning.

Edward Fitzgerald then asked about the effect of the plea bargaining system. Thomas Durkin replied that an early guilty plea reduced the sentencing score by three points. That could make several years difference in sentence. But much more important was the freedom of the prosecution to reduce the counts charged in exchange for a guilty plea. That could make a massive difference – potentially from 100 years plus to ten years, for example. The system greatly reduced freedom of choice and was a massive disincentive to stand trial. People just could not take the risk. A large majority of Durkin’s clients now took a plea deal.

Mr Durkin agreed with a suggestion from Edward Fitzgerald that a condition of a plea deal for Julian Assange was likely to be that he gave up the names of Wikileaks’ sources.

Edward Fitzgerald asked Mr Durkin whether there had been a political decision by the Trump administration to prosecute Assange. Durkin said there were no new criminal justice considerations that had caused the change in approach. This was most likely a political decision.

Edward Fitzgerald asked Durkin about Gordon Kromberg’s assertion that a Grand Jury was a powerful bulwark against a political prosecution. Durkin replied this was simply untrue. A grand jury virtually never refused to authorise a prosecution. In the whole of the USA, there was generally about one refusal every four or five years.

James Lewis then started cross-examination. He asked if Durkin was saying that Assange would not receive a fair trial in the US, or just that it was difficult? Durkin replied that Julian Assange would not get a fair trial in the USA.

Lewis suggested that the requirement to see classified material in a SCIF was merely an inconvenience. Durkin said it was much more than that. You could not discuss material with your client, which materially limited your understanding of it. James Lewis countered that US Assistant Attorney Kromberg’s affidavit stated that Assange would be able to see some classified material himself. A classified facility would be available for him to meet his attorneys. Durkin said he did not accept this description. He had never seen anything like this happen.

Lewis then said Durkin’s statement was that there will be an unprecedented volume of classified material disclosed in this prosecution. But he could not know that. He had no idea what would be disclosed or what the defence would be, if any. Durkin replied that much could be understood from the extensive indictment and from what happened in the Chelsea Manning case. Lewis repeated Durkin did not know what would happen. Assange might plead guilty.

Lewis suggested the plea bargain system was in essence the same in England, where defendants could get one third off sentence for a guilty plea. Durkin said plea bargaining in the US went far beyond that. The government could put a big offer on the table in terms of reductions of charges and counts.

Lewis then went to the question of a change of policy between the Obama and Trump administrations. He established that Durkin relied on media reports for his view on this. Durkin pointed out that the Washington Post report of 25 November 2013 that the Obama administration would not prosecute, had quoted multiple former and then current Justice Department employees and crucially no denial or counter briefing had ever been forthcoming. It had never been contradicted.

That was the end of Tuesday’s hearing. In conclusion I need to correct something I published yesterday, that there were only three journalists in the video gallery to cover the trial. James Doleman led me to another hidden nest of them and there are about ten in total. The main titles are inexcusably unrepresented, but press agencies are, even if their feed is being little used.

show trial of Julian Assange

The Assange Hearing Day 9

my comment: there is something beautiful when fit hits the shan; when people lose their shit because they are simply losing their shit. and as hard as it is to read without your heart beating from the stress of it, it is hard not to laugh at the absurdity, at the bratty behaviour by James Lewis (the prosecution representing the US), and the sheer ridiculous nature of this sham.

Your man in the public Gallery – by Craig John Murray

Things became not merely dramatic in the Assange courtroom today, but spiteful and nasty. There were two real issues, the evidence and the procedure. On the evidence, there were stark details of the dreadful regime Assange will face in US jails if extradited. On the procedure, we saw behaviour from the prosecution QC that went well beyond normal cross examination and was a real attempt to denigrate and even humiliate the witness. I hope to prove that to you by a straightforward exposition of what happened today in court, after which I shall add further comment.
B
Today’s witness was Eric Lewis. A practising US attorney for 35 years, Eric Lewis has a doctorate in law from Yale and a masters in criminology from Cambridge. He is former professor in law at Georgetown University, an elected member of both the American Law Institute and the Council on Foreign Relations and a fellow of the American Bar Foundation. He is Chairman of Reprieve. He has represented high profile clients in national security and terrorism cases, including Seymour Hersh and Guantanamo Bay internees.

Lewis had submitted five statements to the court, between October 2019 and August 2020, addressing the ever-changing indictments and charges brought by the prosecution. He was initially led through the permitted brief half-hour summary of his statements by defence QC Edward Fitzgerald. (I am told I am not currently allowed to publish the defence statements or links to them. I shall try to clarify this tomorrow.)

Eric Lewis testified that no publisher had ever been successfully prosecuted for publishing national security information in the USA. Following the Wikileaks publications including the diplomatic cables and the Iraq and Afghanistan war logs, Assange had not been prosecuted because the First Amendment was considered insuperable and because of the New York Times problem – there was no way just to prosecute Assange without prosecuting the New York Times for publishing the same material. The New York Times had successfully pleaded the First Amendment for its publication of the Pentagon Papers, which had been upheld in a landmark Supreme Court judgement.

Lewis here gave evidence that mirrored that already reported of Prof Feldstein, Trevor Timm and Prof Rogers, so I shall not repeat all of it. He said that credible sources had stated the Obama administration had decided not to prosecute Assange, notably Matthew Miller, a highly respected Justice Department figure who had been close to Attorney General Holder and would have been unlikely to brief the media without Holder’s knowledge and approval.

Eric Lewis then gave testimony on the change of policy towards prosecuting Assange from the Trump administration. Again this mostly mirrored the earlier witnesses. He added detail of Mike Pompeo stating the free speech argument for Wikileaks was “a perversion of what our great country stands for”, and claiming that the First Amendment did not apply to foreigners.

Attorney General Sessions had accordingly stated that it was “a priority for the Justice Department” to arrest Julian Assange. He had pressured prosecutors in the Eastern District of Virginia to bring a case. In December 2017 an arrest warrant had been issued, with the indictment to be filled in later. The first indictment of a single count had been launched in March 2018, its timing possibly dictated by a limitation deadline.

In May 2019 a new superseding indictment increased the counts from one to eighteen, seventeen of which related to espionage. This tougher stance followed the appointment of William Barr as Attorney General just four months previously. The plain intention of the first superseding indictment was to get round the New York Times problem by trying to differentiate Assange’s actions with Manning from those of other journalists. It showed that the Justice Department was very serious and very aggressive in acting on the statements of Trump administration officials. Barr was plainly acting at the behest of Trump. This represented a clear abuse of the criminal enforcement power of the state.

The prosecution of a publisher in this way was unprecedented. Yet the facts were the same in 2018 as they had been in 2012 and 13; there was no new evidence behind the decision to prosecute. Crucially, the affidavits of US Assistant Attorney Gordon Kromberg present no legal basis for the taking of a different decision to that of 2013. There is no explanation of why the dossier was lying around with no action for five or six years.

The Trump administration had in fact taken a different political decision through the Presidential spokesperson Sarah Sanders who had boasted that only this administration had acted against Assange and “taken this process seriously”.

Edward Fitzgerald QC then turned to the question of probable sentencing and led Lewis through his evidence on this point. Eric Lewis confirmed that if Julian Assange were convicted he could very probably spend the rest of his life in prison. The charges had not been pleaded as one count, which it had been open to the prosecution to do. The judge would have discretion to sentence the counts either concurrently or consecutively. Under current sentencing guidelines, Assange’s sentence if convicted could range from “best case” 20 years to a maximum of 175 years. It was disingenuous of Gordon Kromberg to suggest a minimal sentence, given that Chelsea Manning had been sentenced to 35 years and the prosecution had requested 60.

It had been a government choice to charge the alleged offences as espionage. The history of espionage convictions in the USA had generally resulted in whole life sentences. 20 to 30 years had been lighter sentences for espionage. The multiple charges approach of the indictment showed a government intention to obtain a very lengthy sentence. Of course the final decision would lay with the judge, but it would be decades.

Edward Fitzgerald then led on to the question of detention conditions. On the question of remand, Gordon Kromberg had agreed that Julian Assange would be placed in the Alexandria City Jail, and there was a “risk” that he would be held there under Special Administrative Measures. In fact this was a near certainty. Assange faced serious charges related to national security, and had seen millions of items of classified information which the authorities would be concerned he might pass on to other prisoners. He would be subject to Special Administrative Measures both pre- and post-conviction.

After conviction Julian Assange would be held in the supermax prison ADX Florence, Colorado. There were at least four national security prisoners currently there in the H block. Under SAMS Assange would be kept in a small cell for 22 or 23 hours a day and not allowed to meet any other prisoners. He would be allowed out once a day for brief exercise or recreation excluded from other prisoners, but shackled.

Fitzgerald then led Lewis to the 2017 decision by the International Criminal Court to open an investigation into war crimes in Afghanistan, in which the evidence provided by the Wikileaks release of US war logs and diplomatic cables provided essential evidence. This had been denounced by Trump, John Bolton and Pompeo. The ICC prosecutor’s US visa had been cancelled to hinder his investigation. An Executive Order had been issued imposing financial sanctions and blocking the banking access of any non US national who assisted the ICC investigation into crimes alleged against any US citizen. This would affect Julian Assange.

At this point, the half-hour guillotine imposed by Judge Baraitser on defence evidence came down. Fitzgerald pointed out they had not even reached the second superseding indictment yet, but Baraitser said that if the prosecution addressed that in cross examination, then the defence could question on it in re-examination.

James Lewis QC then rose to cross examine Eric Lewis. Yet again, he adopted an extremely aggressive tone. This is perhaps best conveyed as a dialogue.

NB this is not a precise transcript. It would be illegal for me to publish a transcript (of a “public” court hearing; fascinating but true). This is condensed and slightly paraphrased. It is I believe a fair and balanced representation of what happened, but not a verbatim record.

Eric Lewis was appearing by videolink and it should be borne in mind that he was doing so at 5am his time.

James Lewis QC Are you retained as a lawyer by Mr Assange in any way?
Eric Lewis No.
James Lewis QC Are you being paid for your evidence?
Eric Lewis Yes, as an expert witness. At a legal aid rate.
James Lewis QC Are you being paid for your appearance in this court?
Eric Lewis We haven’t specifically discussed that. I assume so.
James Lewis QC How much are you being paid?
Eric Lewis £100 per hour, approximately.
James Lewis QC How much have you charged in total?
Eric Lewis I don’t know, haven’t worked it out yet.
James Lewis QC Are you aware of the rules governing expert witnesses?
Eric Lewis Yes, I am. I must state my qualifications and my duty is to the court; I have to give an objective and unbiased view.
James Lewis QC You are also supposed to set out alternative views. Where have you set out the arguments in Mr Kromberg’s five affidavits?
Eric Lewis The court has Mr Kromberg’s affidavits. I address his arguments directly in my statements. Are you saying that I should have repeated his affidavits and all the other evidence in my statements? My statements would have been thousands of pages long.
James Lewis QC You are supposed to be unbiased. But you had previously given views that Mr Assange should not be extradited.
Eric Lewis Yes, I published an article to that effect.
James Lewis QC You also gave an interview to an Australian radio station.
Eric Lewis Yes, but both of those were before I was retained as an expert witness in this case.
James Lewis QC Does this not create a conflict of interest?
Eric Lewis No, I can do an objective analysis setting aside any prejudice. Lawyers are used to such situations.
James Lewis QC Why had you not declared these media appearances as an interest?
Eric Lewis I did not think perfectly open actions and information needed to be declared.
James Lewis QC It would be much better if we were not forced to dig out this information. You give opinions on law. You also give opinions on penal conditions. Are you an expert witness?
Eric Lewis I am very familiar with prison conditions. I visit prisons. I studied criminology at Cambridge. I keep up to date with penology. I have taught aspects of it at university.
James Lewis QC Are you a qualified penologist?
Eric Lewis I think I have explained my qualification.
James Lewis QC Can you point us to peer reviewed articles which you have published on prison conditions?
Eric Lewis No.
James Lewis QC Have you visited ADX Colorado?
Eric Lewis No, but I have had a professional relationship with a client in there.
James Lewis QC Have you represented anyone in Alexandra Detention Centre?
Eric Lewis Yes, one person, Abu Qatada.
James Lewis QC So you have no expertise in prisons?
Eric Lewis I have visited extensively in prisons and observed prison conditions. I have read widely and in detail on the subject.
James Lewis QC Abu Qatada was acquitted of 14 of the 18 charges against him. Was that not acquittal by the same jury pool that would try Julian Assange?
Eric Lewis No. That was Colombia, not Eastern Virginia. Very different jury pools.
James Lewis QC The prosecutors withdrew capital charges. You said that was a courageous but correct decision?
Eric Lewis Yes.
James Lewis QC So what was Qatada’s sentence and what was the maximum?
Eric Lewis The government asked for life but to my mind that was not legal for the charges on which he was convicted. He got 22 years. That was much criticised as harsh for those charges.
James Lewis QC Was the Abu Qatada trial a denial of justice?
Eric Lewis No.
James Lewis QC Abu Qatada was held under Special Administrative Measures. Did that prevent you from spending many hours with him?
Eric Lewis No, but it made it extremely difficult. The many hours were spread out over a long period. That is why remand lasted for three years.
James Lewis QC Were your meetings with him monitored?
Eric Lewis Yes.
James Lewis QC But not by the prosecution.
Eric Lewis It was all recorded by the authorities. We were told that nothing would be passed to the prosecution. But from many other reports I am not convinced that is true.
James Lewis QC What jury pool was Zacarias Moussaoui convicted by?
Eric Lewis He was not convicted by a jury. He pled guilty.
James Lewis QC But the jury decided against the death penalty.
Eric Lewis Yes.
James Lewis QC What about Maria Butina? She was charged with being an agent of the Russian Federation but received a light sentence?
Eric Lewis That was a very weird case. She did no more than cultivate some figures in the National Rifle Association. She was sentenced to time served.
James Lewis QC But she only got 18 months when the maximum was 20 years?
Eric Lewis Yes. It was not a comparable case, and it was a plea deal.
James Lewis QC You have addressed prison conditions because the defence argue that Article 3 of the European Convention on Human Rights will be breached. You consider the case of Babar Ahmed. You state that it is “almost certain” that Julian Assange will be subject to administrative segregation. What is the procedure for administrative segregation?
Eric Lewis The bureau president will decide depending upon various factors including security risk, threat to national security, threat to other prisoners, seriousness of the charge. My experience is that national security charged prisoners go straight into administrative segregation.
James Lewis QC (very aggressive) What are you reading?
Eric Lewis Pardon?
James Lewis QC You are reading something there. What is it?
Eric Lewis It is my witness statement. (Holds it up.) Is that not OK?
James Lewis QC That is alright. I thought it was something else. How many categories of administrative detention are there?
Eric Lewis I just went through the main ones. National security, serious charge, threat to other prisoners.
James Lewis QC You do not know the categories. They are (reels off a long list including national security, serious charge, threat to others, threat to self, medical custody, protective custody and several more). Do you agree there is no solitary confinement in administrative segregation and Special Administrative Measures?
Eric Lewis No.
James Lewis QC US Assistant Attorney Kromberg states in his affidavit that there is no solitary confinement.
Eric Lewis It is solitary confinement other than in the vernacular of the US prison service.
James Lewis QC In that case it is also not solitary confinement in the vernacular of the English High Court, which has accepted there is no solitary confinement.
Eric Lewis It is solitary confinement. When you are kept in a tiny cell for 23 hours a day and allowed no contact with the rest of the prison population even during the one hour you are allowed out, that is solitary confinement. The attempt to deny it is semantic.
James Lewis QC Was Abu Qatada in solitary confinement? When he was permitted unlimited legal visits?
Eric Lewis They were not unlimited. In reality there were practical and logistical obstacles. There was a single room that could be used, for the entire prison population. You had to get a booking for that one room. You had to book translation services. The FBI oversaw the visits and listened in. Now with Covid there are no visits at all. Theoretically visits are “unlimited” but in practice you do not get nearly as much time with your client as you need.
James Lewis QC You said that he would be held in solitary confinement. But is it not true that even prisoners under SAMs get a break schedule?
Eric Lewis There is a break schedule but it requires no other prisoner to be in the communal areas to have contact with the prisoner under SAM. So in practice the “one hour break” would typically be scheduled between 3am and 4am. Not many prisoners wanted to get out of bed at 3am to walk around a cold and empty communal area.

At this point there was a break. James Lewis QC used it forcefully to complain to Baraitser about the four hour limit set on his cross-examination of Eric Lewis. He said that so far he had only got through one and a half pages of his questions, and that Eric Lewis refused to give yes or no answers but instead insisted on giving lengthy explanations. James Lewis QC was plainly extremely needled by Eric Lewis’ explanations of “unlimited visiting time” and “no solitary confinement”. He complained that Baraitser was “failing to control the witness”.

It was plain that James Lewis’s real aim was not to get more time, but to get Baraitser to curtail Eric Lewis’s inconvenient answers. It is of course amazing that he was complaining about four hours, when the defence had been limited to half an hour and had not even been permitted to get to the latest superseding indictment.

Baraitser, to her credit, replied that it was not for her to control the witness, who must be free to give his evidence so long as it was relevant, which it was. It was a question of fairness not of control. James Lewis was asking open or general questions.

James Lewis responded that the witness refused to give binary answers. Therefore his cross examination must be longer than four hours. He became very heated and told Baraitser that never in his entire career had he been subject to a guillotine on cross examination, and that this “would not happen in a real court”. He very definitely said that. “This would not happen in a real court.” I have of course been arguing all along that this is not a genuine process. I did not expect to hear that from James Lewis QC, though I think his intention was just to bully Baraitser, which was confirmed by Lewis going on to state he had never heard of such a guillotine in his capacity of “High Court Judge”. I find that Lewis is listed as “deputy high court judge”, which I think is like being 12th man at cricket, or Gareth Bale.

Baraitser only conceded very slight ground under this onslaught, saying she had never used the word guillotine, that the timings had been agreed between parties, and she expected them to stick to them. James Lewis said it was impossible in that way adequately to represent his client (the US government). He said he felt “stressed”, which for once seemed true, he had gone purple. Baraitser said he should try his best to stick to the four hours. He fumed away (though at a later stage apologised to Baraitser for his “intemperate language”).

James Lewis QC’s touting for business webpage describes him as “the Rolls Royce of advocates”. I suppose that is true, in the sense of foreign owned. Yet here he was before us, blowing a gasket, not getting anywhere, emitting fumes and resembling a particularly unloved Trabant.

Cross-examination of Eric Lewis resumed. James Lewis QC started by reiterating the criteria and categories for Administrative Segregation after conviction (as opposed to pre-trial). Then we got back into questioning.

James Lewis QC Gordon Kromberg states that there is no solitary confinement in ADX Colorado.
Eric Lewis Again this is semantic. There is solitary confinement.
James Lewis QC But there is an entitlement to participate in three programmes a week.
Eric Lewis Not in Special Administrative Measures.
James Lewis QC But which of the criteria for Special Administrative Measures might Julian Assange fall into?
Eric Lewis Criteria 2, 4 and 5, at least.
James Lewis QC Can we agree there is a formal procedure?
Eric Lewis Yes, but not worth the name.
James Lewis Your opinion is based on one single client in ADX Colorado.
Eric Lewis Yes, but the system is essentially the same as other supermaxes.
James Lewis At para 14 of your report you state that the system lacks procedural rights, and is tantamount to solitary confinement. Had you read the European Court of Human Rights judgement on Babar Ahmad when you wrote this?
Eric Lewis Yes.
James Lewis That judgement specifically rejects the same claims you make.

James Lewis QC refers to a number of paragraphs in the original UK District court decision in the case of Babar Ahmad. Eric Lewis asks for more time to find the document as “I only received these documents from the court this morning”.

James Lewis QC But Mr Lewis, you have testified on oath that you had read the Babar Ahmad judgement.
Eric Lewis I have read the final judgement of the European Court of Human Rights. I had not read all the judgements from lower courts. I received them from the court this morning.
James Lewis QC The senior district judge ruled that although Special Administrative Measures were a concern, they did not preclude extradition. There were various safeguards to SAMs. For example although attorney/client conversations were monitored, that was only for the purpose of preventing terrorism and the FBI did not pass on the recordings to the prosecution. The judge rejected the idea that SAMs amounted to solitary confinement. The High Court upheld the District judge’s ruling and the House of Lords rejected Babar Ahmad’s application to appeal. In its ruling on admissibility of the case, the European Court of Human Rights considered six affidavits from US attorneys very similar to that submitted by Eric Lewis in this case. This included the affirmations that it would be “virtually certain” that Babar Ahmad would be subject to SAMs, and that these would interfere directly with the right to a fair trial, and would constitute cruel and degrading treatment. The ECHR found in relation to pre-trial detention that these allegations were wrong in the Babar Ahmad case.
Eric Lewis But that was a terrorism case, not a national security case. SAMs apply differently in national security cases. This is about a million classified documents. Different cases had to be considered each on their merits.
James Lewis QC In the Babar Ahmad case, the defence submissions were that the regime was harsh, amounted to solitary confinement nearly 24 hours a day, with one phone call every two weeks and one family visit a month. Is that not almost identical to your evidence here?
Eric Lewis Each case must be considered on its merits. There are key differences. Assange is charged with espionage not terrorism, and possession of classified intelligence is a factor. Mental health issues are also different. Under SAMS there is no internet access and no access to any news source. Only approved reading material is allowed. These would be particularly hard for Assange.
James Lewis QC But the Babar Ahmad case does specifically deal with mental health issues, between Babar and co-defendants these include clinical depression, suicide risk and Asperger’s. The court agreed that SAM’s would be likely to be applied both before and after trial. But it ruled that the American government had good reasons for imposing SAMs, were entitled to do so, and that there was a clear and non-arbitrary procedure for implementing them.

Eric Lewis replied that he disagreed that would be true in this case. SAM’s could be applied without procedure, by the US Attorney-General, and William Barr would do that in this case, on the basis of statements by Trump and Gina Haspel. In practice, SAMs had never been overturned whatever the claimed procedure. Eric Lewis did not agree they were not arbitrary.

There now followed an episode where James Lewis QC successfully tripped up Eric Lewis by quoting a passage from an Ahmad case judgement and then confusing him as to whether it was from the final ECHR judgement, which Eric Lewis had read, or from an earlier English court judgement or the ECHR prior judgement on admissibility, which he had not.

James Lewis QC So the ECHR viewed the argument that the SAM regime in pre-trial detention breaches Article 3 as ill-founded and inadmissible. Do you agree with the European Court of Human Rights?
Eric Lewis They found that in the Babar Ahmad admissibility decision in 2008. New information and evidence and changes to the regime since then might change that view.
James Lewis QC What are the defence issues that Assange will raise that you say makes proper consultation under the SAM regime impossible?
Eric Lewis Well I don’t know the precise details of what his defence will be but…
James Lewis QC [interrupting] Well how can you possibly know what the issues will be if you do not know the case?
Eric Lewis Because I have read the indictment. The issues are very wide ranging indeed and involve national security documents.
James Lewis QC But you don’t know what defence at all will be put forward, so how can you opine?
Eric Lewis The charges themselves give a fair idea what might be covered.
James Lewis QC Turning to the Babar Ahmad final judgement on post-trial incarceration at ADX Colorado. Have you read this (sarcastic emphasis) judgement? Of 210,307 federal prisoners, only 41 of these had SAMs. 27 were in ADX Colorado.
Eric Lewis The Warden of ADX Colorado himself had stated that it was “not fit for humanity” and “a fate worse than death”.
James Lewis QC The ECHR said that SAMS was subject to oversight by independent authorities who looked after the interests of prisoners and could intervene.
Eric Lewis Since that ECHR judgement, a new US judgement had stated that prisoners have no Fifth Amendment right to appeal against the conditions of their incarceration.
James Lewis QC The ECHR found that the US prison authorities took cognisance of a prisoner’s mental state in relation to SAM measures.
Eric Lewis Things have also moved on there since 2012. He referenced details from his written evidence.
James Lewis QC The ECHR also found that “the isolation experienced by ADX inmates is partial and relative. The court notes that their psychiatric conditions have not prevented their high security detention in the United Kingdom.” Do you accept that in 2012 the ECHR made a thorough finding?
Eric Lewis Yes, on the basis of what they knew in 2012, but much more information is now available. And there are specific reasons to doubt Mr William Barr’s impartiality.
James Lewis QC You say that Mr Assange will not receive adequate healthcare in a US prison. Are you a medical expert?
Eric Lewis No.
James Lewis QC Do you hold any medical qualification?
Eric Lewis No.
James Lewis QC What published statement gives the policy of the Bureau of Prisons on Mental Health?
Eric Lewis I was relying on the published statement of the US Inspector of Prisons and the study by Yale Law School of mental health in US prisons. The US Bureau of Prisons states that 48% of prisoners have serious mental health problems but only 3% receive any treatment. The provision for mental healthcare in jails has been cut every year for a decade. Suicides in jail are increasing by 18% a year.
James Lewis QC Have you read “The Treatment and Care of Prisoners with Mental Illness” by the US Department of Health?
Eric Lewis Yes.
James Lewis QC You purport to be an expert. Without looking it up what year was it published? You don’t know, do you?
Eric Lewis Could you be courteous. I have been courteous to you. Can you refer me to a relevant question?
James Lewis QC The policy has had eight changes since 2014. Can you list them?
Eric Lewis I am trying to testify on my experience and my knowledge in dealing with these questions on behalf of the many clients I have represented. If you are asking me am I a prison psychiatrist, I am not.
James Lewis QC Do you know the specific changes made since 2014 or not?
Eric Lewis I know that there were new regulations stipulating 1 mental health professional for every 500 inmates and guidelines for an increase in accessibility, but I also know those have not in fact been implemented due to lack of resources.
James Lewis QC (smirking) How many levels of psychiatric assessment are there? What is level number three? What are you reading? You are reading! What are you reading! What are you reading! [Yes, this is not a mistake. He did pull this stunt again.]
Eric Lewis I am looking at my own witness statement (shows it to camera).
James Lewis QC You are not a genuine expert witness – you have no expertise in these matters. As you are being paid to give evidence and are not an expert, that is something the court will have to take account in deciding what weight, if any at all, to give to your evidence.

Before Eric Lewis could respond, the video link broke down, rather bizarrely broadcasting a news item about Donald Trump attacking Julian Assange. It could not be restored all day, so that was the end of proceedings, for which my note taking hand was not ungrateful. The link could be restored in the adjacent courtroom, which indicates the problem was very local. The judge considered changing courts but it was considered too difficult to move everyone and the great mounds of files and equipment. This hearing has frequently been interrupted by the strange incompetence of the Ministry of Justice in establishing simple videolinks.

James Lewis QC’s conduct was very strange. It really is not normal courtroom behaviour. Were there a jury, they would completely have written him off by now as rude and obnoxious, and even Baraitser finally seems to have found her limit of being pushed around by the prosecution. Eric Lewis is obviously a very distinguished man and a lawyer with immense experience of the US system. Trying to claim he has no expertise because he is not a psychiatrist or an academic in penology is no more than a shoddy trick, performed in a manner designed to humiliate.

The asking for the precise title of one particular Department of Health Pamphlet or for a specific point in it, as though that were a way of invalidating all that Eric Lewis knows, is so transparently invalid as a test of worth that I am astonished Baraitser let James Lewis pursue it, let alone the histrionic accusations about “reading”. This was really hard to sit through silently for me; goodness knows what it was like for Julian.

The mainstream media are turning a blind eye. There were three reporters in the press gallery, one of them an intern and one representing the NUJ. Public access continues to be restricted and major NGOs, including Amnesty, PEN and Reporters Without Borders, continue to be excluded both physically and from watching online. It has taken me literally all night to write this up – it is now 8.54am – and I have to finish off and get back into court. The six of us allowed in the public gallery, incidentally, have to climb 132 steps to get there, several times a day. As you know, I have a very dodgy ticker; I am with Julian’s dad John who is 78; and another of us has a pacemaker.

I do not in the least discount the gallant efforts of others when I explain that I feel obliged to write this up, and in this detail, because otherwise the vital basic facts of the most important trial this century, and how it is being conducted, would pass almost completely unknown to the public. If it were a genuine process, they would want people to see it, not completely minimise attendance both physically and online.

‘Green’ billionaires behind professional activist network that led suppression of ‘Planet of the Humans’ documentary

an article that appeared on the gray zone about the much vaunted documentary I believe everyone who lives on this planet should watch – regardless if you are up for keeping the planet alive and well, or not. Please take time to watch Planet of the Humans.

The Michael Moore-produced ‘Planet of the Humans’ faced a coordinated suppression campaign led by professional climate activists backed by the same ‘green’ billionaires, Wall Street investors, industry insiders and family foundations skewered in the film.

By Max Blumenthal

“We must take control of our environmental movement and our future from billionaires and their permanent war on Planet Earth. They are not our friends.”

-Jeff Gibbs, director of “Planet of the Humans”

It is hard to think of an American film that provoked a greater backlash in 2020 than “Planet of the Humans.” Focused on the theme of planetary extinction and fanciful proposals to ward it off, the documentary was released for free on YouTube on April 21. The date was significant not only because it was the eve of the 50th anniversary of Earth Day, but because a global pandemic was tearing through America’s social fabric and exposing the human toll of the country’s globalized, growth-obsessed economic model.

Even before “Planet of the Humans” was released, however, the producers of the film had fallen under pressure to retract it. Upon the film’s release, a who’s who of self-styled climate justice activists proceeded to blanket the internet with accusations that it was a racist, “eco-fascist” screed that deliberately advanced the interests of the oil and gas industry. When “Planet of the Humans” was briefly yanked from YouTube thanks to a questionable copyright claim by an angry climate warrior, the free speech organization Pen America issued a remarkable statement characterizing the demands for retraction as a coordinated censorship campaign.

What had this documentary done to inflame so much opposition from the faces and voices of professional climate justice activism? First, it probed the well-established shortcomings of renewable energy sources like solar and wind power that have been marketed as a green panacea. “Planet of the Humans” portrayed these technologies as anything but green, surveying the environmental damage already caused by solar and wind farms, which require heavy mining and smelting to produce, destroy swaths of pristine land, and sometimes demand natural gas to operate.

While major environmental outfits have lobbied for a Green New Deal to fuel a renewables-based industrial revolution, and are now banking on a Democratic presidency to enact their proposals, “Planet of the Humans” put forward a radical critique that called their entire agenda into question.

As the director of the documentary, Jeff Gibbs, explained, “When we focus on climate change only as the thing destroying the planet and we demand solutions, we get used by forces of capitalism who want to continue to sell us the disastrous illusion that we can mine and smelt and industrialize our way out of this extinction event. And again, behind the scenes, much of what we’re doing to ‘save’ the planet is to burn the ‘bio’ of the planet as green energy.”

“Planet of the Humans” crossed another bright green line by taking aim at the self-proclaimed climate justice activists themselves, painting them as opportunists who had been willingly co-opted by predatory capitalists. The filmmakers highlighted the role of family foundations like the Rockefeller Brothers Fund in cultivating a class of professional activists that tend toward greenwashing partnerships with Wall Street and the Democratic Party to coalitions with anti-capitalist militants and anti-war groups.

Bill McKibben, the founder of 350.org and guru of climate justice activism, is seen throughout “Planet of the Humans” consorting with Wall Street executives and pushing fossil fuel divestment campaigns that enable powerful institutions to reshuffle their assets into plastics and mining while burnishing their image. McKibben has even called for environmentalists to cooperate with the Pentagon, one of the world’s worst polluters and greatest exporters of violence, because “when it speaks frankly, [it] has the potential to reach Americans who won’t listen to scientists.”

Perhaps the most provocative critique contained in “Planet of the Humans” was the portrayal of full-time climate warriors like McKibben as de facto lobbyists for green tech billionaires and Wall Street investors determined to get their hands on the whopping $50 trillion profit opportunity that a full transition to renewable technology represents. Why have figures like Google CEO Eric Schmidt, Michael Bloomberg, Virgin’s Richard Branson, and Tesla founder Elon Musk been plowing their fortunes into climate advocacy? The documentary taunted those who accepted these oligarchs’ gestures of environmental concern at face value.

For years, leftist criticism of professional climate activism has been largely relegated to blogs like Wrong Kind of Green, which maintains an invaluable archive of critical work on the co-optation of major environmental organizations by the billionaire class. Prominent greens might have been able to dismiss scrutiny from radical corners of the internet as background noise; however, they were unable to ignore “Planet of the Humans.”

That was because Oscar-winning documentarian Michael Moore put his name on the film as executive producer, alongside his longtime producer, Gibbs, and the scholar-researcher Ozzie Zehner. “Michael Moore validates this film,” Josh Fox, the filmmaker who led the campaign against “Planet of the Humans,” told me. “So if Michael Moore’s name is not on that film, it’s like a thousand other crappy movies.”

By racking up millions of views after just a month on YouTube, “Planet of the Humans” threatened to provoke an unprecedented debate about the corruption of environmental politics by the one percent. But thanks to the campaign by Fox and his allies, much of the debate wound up focused on the film itself, and the credibility of its producers.

“I had some sense that the film was going to ruffle some feathers, but I was unprepared for that response from what ended up being a group of people who are like an echo chamber – all related to the same funding organizations,” said Zehner. “It’s a pretty tight circle and it was a really strong, virulent pushback.”

The line of attack that may have gained the most traction in progressive circles portrayed a convoluted section of the film on the dangers of population growth and overconsumption as Malthusian, and even racist. Zehner told me he considered the attacks opportunistic, but “from a public relations standpoint, they were effective. What we were trying to do was highlight the dangers of a consumption-based economic model.”

The backlash to “Planet of the Humans” also related to its portrayal of renewables as badly flawed sources of energy that were also environmentally corrosive. Many of those attacks painted the film’s presentation of solar and wind to present the documentary as out of date and filled with misinformation.

Oddly, the professional activists who coordinated the campaign to bury “Planet of the Humans” glossed over an entire third of the documentary which focused on the corruption and co-optation of environmental politics by “green” foundations and “green” investors.

As this investigation will reveal, those climate justice activists were bound together by support from the same family foundations, billionaire investors, and industry interests that were skewered in the film.

“Censorship, plain and simple”

The ringleader of the push to suppress “Planet of the Humans” was Josh Fox, the Oscar-nominated director of the film “Gasland,” which highlighted the destructive practices inherent to hydraulic fracturing, or fracking. Fox launched the campaign with a sign-on letter calling for the documentary to be retracted by its producers. Then, in an incendiary takedown published in The Nation, he branded Michael Moore “the new flack for oil and gas,” a racist, and “eco-fascist” for producing the film.

As videographer Matt Orfalea reported, Fox’s crusade began the night Moore’s film was released, with an unhinged mass email to online publishers that blasted the documentary as “A GIGANTIC CROCK OF SHIT.” Fox commanded, “It must come down off your pages immediately.”

Hours later, Fox fired off another breathless email to a group of public relations professionals. “A number of reputable websites are hosting this abomination and I need your support in getting them to take it down,” he wrote. The following day, Fox took to Twitter to assure his ally, 350.org founder Bill McKibben, “We are on it.”

Next, Fox organized a sign-on letter demanding the film “be retracted by its creators and distributors and an apology rendered for its misleading content.” Among the letter’s signatories was academic and renewables advocate Leah C. Stokes, who proclaimed her wish in an article in Vox that “this film will be buried, and few will watch it or remember it.”

On April 24, Josh Fox claimed he had successfully pressured an online video library, Films For Action, into removing “Planet of the Humans” from its website. His victory lap turned out to be premature, as Films For Action re-posted the film and publicly condemned Fox’s campaign to drive it into oblivion.

The relentless push by Fox and others eventually triggered a striking statement by PEN America, the free speech advocacy group. “Calls to pull a film because of disagreement with its content are calls for censorship, plain and simple,” PEN America declared.

“Listen, nobody called to censor this movie,” Fox insisted to me. “We asked the filmmakers as part of their community to retract it, because it unfairly attacked people that we know are good, honest dealers and its premise was wrong and false.”

Fox likened “Planet of the Humans” to radio host Mike Daisey’s monologue on visiting the Foxconn factory in China where iPhones are made, and which was retracted by NPR after major fabrications came to light. “It’s clear to me that the filmmakers… put incorrect information into the film that they knew was incorrect. That thing was out of date,” Fox said of the Moore-produced documentary. “And many, many people from within our community reached out to them, which I didn’t know actually, prior to the release of the film and said, ‘This information is incorrect. What are you doing?’”

Fox was particularly incensed at Michael Moore for attaching his reputation to the film. He described the famed director as one of “the bad guys”; “a megalomaniacal multi-millionaire who craves attention unlike anyone I’ve ever met”; “the 800-pound elephant in the room”; the maker of a “racist” and “eco-fascist” film; and “a multi-millionaire circus barker” guilty of “journalistic malpractice.”

“The real bully is Michael Moore here,” Fox maintained. “It’s not me.”

Though Fox and his allies did not succeed in erasing “Planet of the Humans” from the internet, the documentary was momentarily removed from YouTube on the grounds of a copyright claim by a British photographer named Toby Smith. In a tweet he later deleted, Smith said his opposition to the film was “personal,” blasting it as a “baseless, shite doc built on bull-shit and endless copyright infringements.”

As the attacks on “Planet of the Humans” snowballed, director Jeff Gibbs attempted to defend his film. Following an article at The Guardian branding the film as “dangerous,” Gibbs emailed the paper’s opinion editors requesting a right of reply. He told me they never responded. However, just hours after Toby Smith’s politically-motivated copyright claim prompted YouTube to remove Gibbs’ documentary, he said The Guardian reached out to him for comment. “How’d they catch that so early?” he wondered.

A few left-wing journalists tried to push back on the attacks as well. But in almost every case, they were spiked by editors at ostensibly progressive journals. Christopher Ketcham, author of “This Land: How Cowboys, Capitalism, and Corruption are Ruining the American West,” was among those unable to find a venue in which to defend the documentary.

“I have come across very few editors radical enough to have the exceedingly difficult conversation about the downscaling, simplification, and the turn (in the developed world) toward diminished affluence that a 100 percent renewable energy system will necessarily entail,” Ketcham reflected to me. “You see, they have to believe that they can keep their carbon-subsidized entitlements, their toys, their leisure travel — no behavioral change or limits needed — and it will all be green and ‘sustainable.’”

Naomi Klein, perhaps the most prominent left-wing writer on climate-related issues in the West, did not weigh in to defend “Planet of the Humans.” Instead, the Intercept columnist, social activist, and Gloria Steinem Endowed Chair in Media, Culture, and Feminist Studies at Rutgers University was an early participant in the campaign to suppress the film.

According to McKibben, “Naomi [Klein] had in fact taken Moore aside in an MSNBC greenroom” before the documentary’s release to lobby him against publishing the film. Klein later signed Josh Fox’s open letter demanding the film be retracted.

On Twitter, Klein condemned “Planet of the Humans” as “truly demoralizing,” and promoted a “big blog/fact check” of the film by Ketan Joshi, a former communications officer for the Australian wind farm company Infigen Energy.

Mining a green future and burying the cost

Like most opponents of “Planet of the Humans,” Ketan Joshi painted the documentary as “a dumb old bull in the china shop that is 2020’s hard-earned climate action environment.” And along with other critics, he accused the film’s co-producers, Gibbs and Zehner, of wildly misrepresenting the efficiency of renewables.

To illustrate his point, he referenced a scene depicting the Cedar Street Solar Array in Lansing, Michigan with flexible solar panels running at 8% efficiency – purportedly enough to generate electricity for just 10 homes. Because that scene was part of a historical sequence filmed in 2008, Joshi dismissed it as an example of the film’s “extreme oldness.”

However, this February, the solar trade publication PV Magazine found that Tesla’s newest line of flexible solar shingles had an efficiency rate of 8.1% – almost exactly the same as those depicted in “Planet of the Humans.”

While it is true that mono-crystalline solar panels boast a higher efficiency rate (between 15% and 18% in commercially available form), they were also on the market back in 2008. These panels are significantly more expensive than the flexible, less efficient panels, however. And their efficiency levels do not account for the intermittency inherent to solar energy, which does not work well in cloudy or dark conditions.

Yet according to Josh Fox, the most vehement opponent of “Planet of the Humans,” the planet-saving capacity of solar and other supposedly clean forms of energy was so well-established it was beyond debate.

“The premise of the film is renewable energy doesn’t work and is dependent on fossil fuels. And that is patently ridiculous,” Fox remarked to me. “And the reason why I got into this is because I had young environmentalists – young people who are steadfast campaigners – calling me in the middle of the night, freaking out, [telling me] ‘I can’t believe this!’ And I looked at them and I said, ‘Well, there’s a reason why you can’t believe this; it’s because it’s not true.’”

But was the presentation of renewable energy sources in “Planet of the Humans” actually false? Ecological economist William Rees has claimed that “despite rapid growth in wind and solar generation, the green energy transition is not really happening.” That might be because it is chasing energy growth instead of curtailing it. Rees pointed out that the surge in global demand for electricity last year “exceeded the total output of the world’s entire 30-year accumulation of solar power installations.”

Are there not reasonable grounds then to be concerned about the practicality of a full transition to renewables, especially in a hyper-capitalist, growth-obsessed economy like that of the United States?

A September 2018 scientific study delivered some conclusions that contradicted the confident claims of renewables advocates. A research team measured solar thermal plants currently in operation around the world and found that they are dependent on the “intensive use of materials,” which is code for heavily mined minerals.minerals renewable energy IEA

Minerals needed to produce renewable energy (Source: International Energy Agency / IEA)

Further, the researchers found that the output of these plants was marred by “significant seasonal intermittence” due to shifting weather patterns and the simple fact that the sun does not always shine. 

The negative impact of massive wind farms on the environment and marginalized communities – an issue highlighted in “Planet of the Humans” – is also a serious concern, especially in the Global South. Anthropologist and “Renewing Destruction: Wind Energy Development, Conflict and Resistance in a Latin American Context” author Alexander Dunlap published a peer-reviewed 2017 study of wind farms in the indigenous Tehuantepec region of Oaxaca, Mexico, which has been marketed as one of the most ideal wind generation sites in the world. Dunlap found that the supposedly renewable projects “largely reinforced income inequality, furthered poverty entrenchment and increased food vulnerability and worker dependency on the construction of more wind parks, which cumulatively has led to an increase in work-related out-migration and environmental degradation.”

When wind turbines reach the end of their life cycle, their fiberglass blades, which can be as long as a football field, are impossible to recycle. As a result, they are piling up in rural dumping sites across the US. Meanwhile, the environmentalist magazine Grist warned this August of a “solar e-waste glut” that will produce “megatons of toxic trash” when solar panels begin to lose efficiency and die.

In response to my questions about so-called renewable energy, Fox referred me to a close ally, Anthony Ingraffea, who signed his letter calling for “Planet of the Humans” to be pulled. A civil engineer and co-founder of Physicians, Scientists and Engineers for Healthy Energy, which advocates for renewables, Ingraffea is a former oil and gas industry insider who turned into a forceful opponent of fracking. In the past six years, he has produced scientific assessments for the governments of New York State and California on a transition to mostly renewable energy sources.

Ingraffea slammed “Planet of the Humans” as “way off base” and derided research by Ozzie Zehner, the co-producer, as “conspiracy theory shit.” He contrasted his credentials with those of Zehner, boasting that while he has earned 15,000 citations in peer-reviewed academic journals during his career as an engineer, Zehner had chalked up a mere 300.

When I turned to the subject of social and environmental damage caused by so-called renewables, Ingraffea argued that the burning, storing, and transportation of fossil fuels outweighed any of those costs. According to Ingraffea, when New York State makes a decisive transition to renewables, only about 2% of the state’s land would be occupied by solar and wind farms – which translates to about 1,100 square miles.

He pointed to the New York State Assembly’s Climate Leadership and Community Protection Act as an embodiment of the foresight of proponents of a near-total transition to renewable energy. The bill, which calls for the state to run 70% of its publicly generated energy off of “renewable energy systems” by 2030, also mandates that “35 percent of investments from clean energy and energy efficiency funds [be] invested in disadvantaged communities.”

“That’s wisdom speaking,” Ingraffea said of the legislation. “That’s telling you that yes, we are aware of the problem that you said we should be aware of. Yeah, we’re not all dumb. We’re not all crazy. We’re not all ideological. Not all technical nerds who just fall in love and want to make sex with solar panels.”

However, the communities (or their designated NGO representatives) supposedly compensated through the New York State bill are not located in the regions that will be most impacted by the extraction necessary to manufacture so-called renewables. Already devastated by coups and neocolonial exploitation, swathes of the Global South from Bolivia to Congo – home to massive reserves of cobalt hand-mined in “slave conditions” for electric car batteries and iPhones – are being further destabilized by the minerals rush.

Even mainstream environmentalists acknowledge that rising reliance on renewable energy “means a lot of dirty mining” to extract the minerals required for electric batteries and solar cells. This prospect has sparked excitement within the mining industry, with the editor of Mining.com, Frik Els, dubbing Green New Deal spokeswomen Rep. Alexandria Ocasio-Cortez and Greta Thunberg “mining’s unlikely heroines.”

“Going all in on the green economy and decarbonisation requires siding with the greens against fossil fuels,” Els informed fellow mining industry insiders. “It means selling global mining as the solution to climate change because mining metals is the only path to green energy and green transport.”

Mining com Greta Thunberg AOC

The inevitable rush on minerals required to power the green revolution has not exactly delighted residents of the Global South, however.

Evo Morales, the indigenous former president of Bolivia, was driven from power in 2019 by a military junta backed by the United States and local oligarchs, in what he branded a lithium coup. With the world’s largest untapped lithium resources, Bolivia is estimated to hold as much as half of the world’s reserves. Under Morales, the country guaranteed that only state-owned firms could mine the mineral.

The ousted socialist leader argued that multi-national corporations supported his right-wing domestic opponents in order to get their hands on Bolivia’s lithium – an essential element in the electric batteries that provide the cornerstone to a digital economy dependent on smartphones, laptops, and electric vehicles. “As a small country of 10 million inhabitants, we were soon going to set the price of lithium,” Morales said. “They know we have the greatest lithium reserves in the world [in a space of] 16,000 square kilometers.”minerals electric cars IEA

Minerals needed to produce electric cars (Source: International Energy Agency / IEA)

Just before the military coup in Bolivia, a report (PDF) by the World Economic Forum’s Global Battery Alliance reported that the global demand for electric batteries will increase 14-fold before 2030. Almost half of today’s lithium is mined to produce electric batteries, and the demand for the mineral will only rise as power grids incorporate high levels of battery powered tech and the demand for electric vehicles increases.

Electric batteries are also heavily reliant on cobalt, most of which is mined from Congo, and often in illegal and dangerous conditions by child labor. In December 2019, over a dozen Congolese plaintiffs sued Apple, Google’s Alphabet parent company, Microsoft, Dell, and Tesla, accusing them of “knowingly benefiting from and aiding and abetting the cruel and brutal use of young children in Democratic Republic of Congo (‘DRC’) to mine cobalt.”

This July, Tesla CEO and electric battery kingpin Elon Musk appeared to take partial credit for the 2019 military coup that forced Bolivia’s Evo Morales from power, asserting that big tech billionaires like him could “coup whoever we want.”

The payoff for all the dirty and deadly mining required to manufacture the solar panels, wind turbines, and electric batteries required to power the new industrial revolution is supposed to be a planet no longer faced with a “climate emergency” – and nevermind the damage to the Earth and its non-human inhabitants. But with the demand for electricity constantly growing, is it even possible to power an economy like that of the US with entirely renewable sources of energy (excluding nuclear)?

A scientific projection by one of the closest allies of Josh Fox and Anthony Ingraffea was supposed to have answered that question and put all doubts to bed. Instead, it resulted in acrimony and embarrassment for its author.

The 2050 transition goal: real science or a murky crystal ball?

In his piece hammering “Planet of the Humans” in The Nation, Fox touted “the proliferation of 100 percent renewable energy plans put forward by Stanford University Professor Mark Jacobson” as one of the most important pieces of evidence refuting the film’s grim narrative.

Jacobson’s study, according to National Geographic, was “a foundation stone” of the Green New Deal proposal put forward by Democratic Sen. Ed Markey and Rep. Alexandria Ocasio-Cortez. It was also central to the energy plan advanced by the  presidential campaigns of Sen. Bernie Sanders, who co-authored an op-ed with Jacobson that called for a full transition to “clean” energy by 2050.

Jacobson, like Ingraffea, is an environmental engineer and political partner of Fox. The Stanford professor helped Fox found the environmental advocacy organization the Solutions Project, alongside actor Mark Ruffalo and the banker and former Tesla executive Marco Krapels in 2011. (More on this group later.)

Besides his working relationship with Jacobson, Fox failed to acknowledge that the professor’s all-renewables projection was strongly challenged by 21 leading energy scientists in the prestigious Proceedings of the National Academy of Sciences journal. The scientists concluded Jacobson’s paper was rife with “invalid modeling tools, contained modeling errors, and made implausible and inadequately supported assumptions.”

A survey of the debate by Scientific American scoffed at Jacobson’s remarkable assumption “that U.S. hydroelectric dams could add turbines and transformers to produce 1,300 gigawatts of electricity instantaneously… or the equivalent of about 1000 large nuclear or coal power plants running at full power.”

Jacobson retaliated against his critics by filing a $10 million defamation lawsuit, which he was forced to withdraw in 2018. Legal commentator Kenneth White described the suit as “clearly vexatious and intended to silence dissent about an alleged scientist’s peer-reviewed article.”

This April, a DC Superior Court judge invoked anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation that reportedly ordered Jacobson to pay the defendants’ legal fees.

“Planet of the Humans” co-producer Ozzie Zehner saw Mark Jacobson’s flameout as a symptom of a wider problem within mainstream climate activism. “When Big Greens talk about ‘facts,’ they often aren’t talking about what most people understand to be facts,” he explained. “They’re usually talking about models, which attempt to predict the future based on estimations of physical conditions, projections, and assumptions. Greens industrialists claim they can accurately model a renewable energy future and its effects on the global biosphere. But our best science can’t even model a fish tank.”

Ingraffea insisted that Jacobson’s legal fight had only begun, and said the professor’s critics were “partially driven by Mark [Jacobson] having made a very famous name for himself in an arena with many other people working, and they’re not getting all the fame.”

Jacobson echoed this line in his own defense: “They don’t like the fact that we’re getting a lot of attention, so they’re trying to diminish our work.”

“Give the guy a break,” Ingraffea appealed. “You know, if he’s wrong, of course he’s wrong. No one’s going to be right. No one could possibly be right right now about what’s going to happen in 25 years. We’re all entitled to our projections. We’re all entitled to our crystal balls.”

That same courtesy was not extended by Ingraffea and his allies to the makers of “Planet of the Humans,” however. “We were unable to identify any factual errors in the film, and we’re open to the idea that we could be wrong about some things,” Zehner said. “But we’d like to have that debate and not be shut down.”

Among the wave of attacks on “Planet of the Humans,” a disproportionate number were churned out by renewables industry insiders, from an “innovation strategist” at the Green Power Energy firm that was criticized in the film for clearing a Vermont mountaintop to build a wind farm (“For me, this film was personal,” he stated), to Now You Know, a podcast by two mega-fans of Elon Musk who fawningly refer to the billionaire as “Elon” and have proudly declared that they are “long on Tesla stock.”

Missing from nearly all of the takedowns was the documentary’s scathing critique of the corruption of environmental politics by billionaires and elite family foundations.

“The conversation our critics really didn’t want to have was about the last one-third of the film,” Zehner remarked, “which dealt with the influence of billionaires and money in the environmental movement, and the divestment sham.”

The shell game of fossil fuel divestment

The tactic of fossil fuel divestment is at the heart of the so-called climate justice movement’s plan to defeat the fossil fuel industry. Launched by Bill McKibben’s 350.org and a coalition of professional activists soon after the re-election of President Barack Obama in 2012, the campaign has resulted in institutions like Oxford University and Goldman Sachs supposedly divesting their holdings in oil and gas companies. Campaigners like McKibben simultaneously encouraged their constituents to invest in funds whose portfolios were supposedly free of fossil fuel companies.

“Planet of the Humans” raked this tactic over the proverbial coals, demonstrating how investment funds endorsed by 350.org have engaged in a shell game in which fossil fuel assets are simply replaced with investments in plastics, mining, oil and gas infrastructure companies, and biomass.

“The big issue with divestment is that it absolves the destructive power of extreme wealth,” Zehner explained. “It’s saying that family foundations can be forgiven and money can be moved into mining, gas and oil infrastructure, solar, wind, and biomass. They divest from the brand name coal companies while investing in infrastructure companies that support coal mining.” 

In one of the most controversial scenes in “Planet of the Humans,” Bill McKibben was seen inaugurating a wood-burning biomass energy plant at Middlebury College, where he has been a scholar-in-residence. The environmental leader praised the initiative as “an act of courage.”

Because the event took place in 2009, McKibben and his allies have attacked the scene as an unfair representation of his current position. In an official 350.org response to “Planet of the Humans,” McKibben claimed that his views on biomass have evolved, leading him to cease his support for the energy source in 2016.

Yet less than a week after The Nation published Josh Fox’s incendiary attack on Michael Moore and “Planet of the Humans,” Nation editor-in-chief D.D. Guttenplan hosted an event with McKibben that was sponsored by a fund with major investments in several wood-to-energy biomass companies.

Called Domini Impact Investments, the fund claims to hold investments in “68 companies… that both impact forests and depend on them, whether for forest derived products or ecosystem services.” One such Domini holding is a wood-to-energy company called Ameresco, which builds “large, utility-scale biomass-to-energy plants,” according to its website.

Domini Impact also features its sustainable “timber” holdings, including Klabin SA, a company with logging operations spanning 590,580 acres in Brazil. Klabin SA manufactures pulp and paper products and operates a 270MW on-site black liquor biomass plant. This May, just days after Domini sponsored McKibben’s talk, the company purchased a second biomass plant.

(Fabio Schvartzman, the former CEO of Klabin SA, was charged with 270 counts of homicide in Brazil this January, after allegedly concealing knowledge of an imminent dam burst to protect the share price of his current company, Vale. The 2019 Mariana dam collapse has been described as Brazil’s worst environmental disaster.)

While introducing the Domini-sponsored event with McKibben, The Nation’s Guttenplan stated, “By investing in the Domini Funds, you can help build a better future for the planet and its people, and be part of a movement working to address a wide range of social and environmental issues including human rights, climate change mitigation and forest stewardship.”

Neither McKibben nor Guttenplan responded to email requests for comment from The Grayzone.

Domini Funds was hardly the only investment fund that McKibben has partnered with to promote fossil fuel divestment – and which has engaged in the shell game exposed in “Planet of the Humans.”

In what was perhaps the film’s most devastating scene, narrator Jeff Gibbs detailed how McKibben has advised 350.org members to direct their money into the Green Century Fund, an investment portfolio that boasts of being “wholly owned by environmental and public health nonprofit organizations,” and free of fossil fuel stock.

Green Century Funds Bill McKibben invest fossil fuels

As “Planet of the Humans” revealed, however, the Green Century Funds’ portfolio has contained heavy investments in mining companies, oil, and gas infrastructure companies, including an exploiter of tar sands, the biofuel giant Archer Daniels Midland, McDonald’s, Coca Cola (the world’s leading plastic pollution proliferator), logging giants, and big banks from Bank of America to HSBC.

Asked about this section of the film, Josh Fox dismissed it as out of date. He claimed that “the entire idea of what constitutes a divested fund has changed really radically over the last eight years, starting at first from just oil, coal and gas investments, to then encompassing things like plastics and the meat industry and derivatives and all other options.”

However, a probe of the 2019 Securities and Exchange Commission filings by Green Century Funds showed the fund held thousands of shares in meat giant McDonald’s and Royal Caribbean Cruises, among other mega-polluters. The latter company’s Harmony of the Seas ship happens to be the most environmentally toxic cruise liner on Earth, relying on three massive diesel engines to burn 66,000 gallons of fuel a day. By the end of one voyage across the Atlantic, the ship has expended the same amount of gasoline as over 5 million automobiles traveling the same distance.

Green Century’s SEC filing boasted that it elicited a pledge from Royal Caribbean “to make its food waste management and reduction strategies more public.” It also claimed to have “helped convince McDonald’s, the largest purchaser of beef in the world, to restrict the use of antibiotics in its beef and chicken supply chains.”

It was a classic case of greenwashing, in which corporate behemoths burnished their reputation among progressives by embracing cosmetic reforms that did little to challenge their bottom lines.

When I informed Fox about Green Century’s ongoing investments in carbon-heavy industries, he said, “Well, I’m all for an investigation of those things on real grounds.”

In the same breath, Fox pivoted to another complaint about “Planet of the Humans”: “The film attacks Bill McKibben in ways that were unfair and untrue.”

Was that the case, though? One of the most provocative points about McKibben and his allies in “Planet of the Humans” – that they function as de facto public relations agents for the “green” billionaires seeking to cash in on the renewables rush – was never coherently answered. But as this investigation reveals, the climate warriors criticized in the film are sponsored by many of those same billionaires, as well as the network of family foundations that help set the agenda for groups like 350.org.

The Rockefeller Brothers Fund incubates 350.org

In perhaps the most uncomfortable scene in “Planet of the Humans,” Bill McKibben was shown visibly squirming as an interviewer asked him about family foundation support for his 350.org.

“We’re not exactly Big Greens,” McKibben insisted during a 2011 interview with climate journalist Karyn Strickler. “I’m a volunteer, we’ve got seven people who work full time on this 350.org campaign.”

With a telling smirk on her face, Strickler asked McKibben how his group sustained itself.

“To the degree that we have any money at all it’s come from a few foundations in Europe and the US,” McKibben insisted.

He mentioned “a foundation based in Sweden, I think it’s called the Rasmussen Foundation that I think has been the biggest funder.”

After some prodding by Strickler, a visibly uncomfortable McKibben divulged that the “Rockefeller Brothers Fund gave us some money right when we were starting out. That’s been useful too.”

However, the Rockefeller Brothers Fund and Rasmussen were not observing the birth of 350.org from the sidelines. In fact, the Rockefeller Brothers were instrumental in establishing 350.org and guiding the organization’s agenda. It began when the foundation incubated a group called 1Sky with a $1 million grant. McKibben immediately joined as board member.

As documented by radical environmentalist Cory Morningstar, 1Sky’s launch was announced at a 2007 gathering of the Clinton Global Initiative by former President Bill Clinton, who stood on stage beside Rockefeller Brothers Fund President Stephen Heintz. Four years later, the Rockefeller Brothers announced “the exciting marriage of 1Sky and 350.org — two grantees of the Rockefeller Brothers Fund’s Sustainable Development program.”

Why McKibben was so uncomfortable about discussing his relationship with Rockefeller was unclear. Perhaps he was concerned that the organization he once described as a “scruffy little outfit” would be seen as a central node in the donor-driven non-profit industrial complex.

Whatever his motives were, since the testy exchange with Strickler, the Rockefeller Brothers Fund has contributed over $1 million to McKibben’s 350.org.

Alongside a network of foundations and “green” billionaires, the Rockefeller Brothers Fund and its $1.2 billion endowment serves as a primary engine of the network of self-styled “climate justice” activists that sought to steamroll “Planet of the Humans.”

These interests have cohered around the Environmental Grantmakers Association (EGA), which is located in the New York City offices of the Rockefeller Family Fund.

The EGA enables elite foundations and billionaire donors to cultivate a cadre of professional “doers” during retreats in scenic locations. One first-time student attendee said the retreat experience was designed with “the intention of strengthening relationships between funders and build[ing] relationships within the environmental movement.” As soon as she arrived, she was “paired with mentor ‘buddies,’ folks who had been to past EGA Retreats to show us the ropes.”

These encounters take place in Napa Valley, California, or at the Mohonk Mountain House resort in New York’s Hudson Valley.A report by the Threshold Foundation described the theme of the 2015 EGA fall retreat at Mohonk: “‘Fund the Fighters!’ That’s the rallying call from the stars. Not the celestial stars, but from well-known artists such as Mark Ruffalo and Naomi Klein.”

In accordance with its relationship with the EGA’s network of environmental cadres and outfits like 350.org, the Rockefeller Brothers Fund embraced their fossil fuel divestment campaign, shedding its stocks in oil and coal while increasing assets in other industries that can hardly be described as green. A look at the results of the foundation’s move offers another disturbing case study in the divestment shell game.

The Rockefeller Brothers go “green,” invest in Halliburton

In 2014, following consultations with 350.org, the Rockefeller Brothers Fund announced that it was divesting from fossil fuels. “We were extremely uncomfortable with the moral ambivalence of funding programs around the climate catastrophe while still being invested in the fossil fuels that were bringing us closer to that catastrophe,” Rockefeller Brothers Fund President Stephen Heintz said.

At a December 2015 side session of the UN climate conference in Paris, 350.org executive director May Boeve joined Heintz to celebrate the foundation’s decision to divest. “A growing number of investors representing a growing amount of capital do not want to be associated with this industry any longer,” Boeve stated.

350.org’s Boeve and Rockefeller’s Heintz at the UN climate summit in 2015

A look at the most recent publicly available financial filing of the Rockefeller Brothers Fund, from 2018 (PDF), offered a clear glimpse at the shell game that divestment has entailed.

According to the filing, while the Rockefeller Brothers freed itself of fossil fuels, the foundation remained invested in companies including the oil services giant Halliburton, the Koch-run multinational petroleum transportation partnership Inter Pipeline Ltd, and Caterpillar, whose bulldozers are familiar at scenes of deforestation and Palestinian home demolitions. (Several NGOs that advocate divestment from companies involved in the Israeli occupation of Palestine, such as +972 Magazine and the US Campaign for Palestinian Rights, have also received support from the Rockefeller Brothers Fund).

The foundation padded its portfolio with stock in financial industry titans like Citigroup and Wells Fargo, as well as Newcrest Mining, Barrick Gold, Wheaton Precious Metals Corporation, and Agnico Eagle Mines.

The Rockefeller Brothers Fund listed at least $20 million of investments in Vision Ridge Partners, which was itself invested in a biomass company called Vanguard Renewables under the guise of “renewable energy.” In December 2019, Vanguard Renewables forged a partnership with Dominion Energy – the energy giant whose Atlantic Coast Pipeline was defeated this June thanks to grassroots environmental mobilization – to convert methane from farms into natural gas.

Since the Rockefeller Brothers Fund answered 350.org’s call to divest from fossil fuels in 2014, the foundation’s wealth has increased substantially. As the Washington Post reported, “the Rockefeller Brothers fund’s assets grew at an annual average rate of 7.76 percent over the five-year period that ended Dec. 31, 2019.”

The outcome of the Rockefellers’ widely praised move established a clear precedent for other elite institutions: by allowing organizations like 350.org to lead them by the hand, they could greenwash their image, offload stocks in a fossil fuel industry described by financial analysts as a “chronic underperformer,” and protect their investments in growth industries like mining, oil services, and biomass.

McKibben, for his part, has marketed fossil fuel divestment as a win-win strategy for the capitalist class: “The institutions that divested from fossil fuel really did well financially, because the fossil fuel industry has been the worst performing part of our economy… Even if you didn’t care about destroying the planet, you’d want to get out of it because it just loses money.”

Blood and Gore make “the case for long-term greed”

In another move apparently intended to burnish its green image while padding its assets, the Rockefeller Brothers Fund invested over $100 million in Generation Investment Management’s Generation Climate Solutions Fund II and Generation IM Global Equity Fund.

These entities are jointly managed by Al Gore, the former US vice president who negotiated a notorious carbon offsets loophole at the 1997 Kyoto Climate Protocol that has been blamed for the release of 600 million tons of excess emissions. Gore launched the fund alongside David Blood, the ex-CEO of asset management for Goldman Sachs, in order to promote a climate-friendly capitalism.

In a 2015 profile of Blood and Gore’s Generation Investment Management fund, The Atlantic’s James Fallows described their investment strategy as “a demonstration of a new version of capitalism, one that will shift the incentives of financial and business operations” toward a profitable “green” economy – while potentially saving the system of capitalism from itself.

Blood was blunt when asked about his agenda: “We are making the case for long-term greed.”

The banker Blood and the green guru McKibben shared a stage together at the 2013 conference of Ceres, a non-profit that works to consolidate the mutually beneficial relationship between Big Green and Wall Street.

Bill McKibben (on the right) and former Goldman Sachs executive David Blood at the 2013 Ceres conference

The event featured a cast of corporate executives from companies like Pacific Gas & Electric (PG&E) and GM. Sponsors included Bank of America, PG&E, Bloomberg, Citi, Ford, GM, Prudential, Wells Fargo, TimeWarner, and a collection of Fortune 500 companies.

During their conversation, the investor Blood pledged to mobilize “something in the order of $40 to $50 trillion of capital” in renewables, underscoring the massive profit center that a transition to “green” energy represents.

“It’s entirely dependent on what kind of political will we can muster,” McKibben proclaimed, pledging to work toward Blood’s goal.

The unsettling sight of McKibben discussing multi-trillion dollar profit possibilities with a former Goldman Sachs banker was featured prominently in “Planet of the Humans,” and undoubtedly helped inspire the ferocious backlash against the documentary by the 350.org founder’s network.

McKibben was far from alone among climate justice warriors in his dalliance with the billionaire class, however.

A foundation-supported “ragtag bunch”

Before Josh Fox launched his media blitz against “Planet of the Humans,” he directed a full-length documentary vehicle for 350.org, titled “Divest.” For the 2016 film, Fox followed McKibben and allies like Naomi Klein as they embarked on a cross-country road trip to promote fossil fuel divestment.

Fox’s ties to the professional activists extend to the funding network centered around the Environmental Grantmakers Association. Between 2012 and 2017, Fox’s film company International WOW reported grants totaling $2.5 million. Much of that funding came courtesy of the Rockefeller Brothers Cultural Innovation Fund and Rockefeller MAP fund, as well as the Ford and Park Foundations. Josh Fox International WOW funding foundations

Foundation funding for Josh Fox’s production company International WOW (Source)

In 2012, the year Fox and his allies launched their campaign promoting fossil fuel divestment, he co-founded an environmental advocacy group called the Solutions Project. He conceived the organization alongside celebrity actor Mark Ruffalo, former Tesla executive Marco Krapels, and Stanford University’s Mark Jacobson – the professor behind the dubious 2050 all-renewables projection.

The four founders gathered seed money from the Leonardo DiCaprio Foundation of the eponymous film actor, and from the 11th Hour Foundation of Google CEO Eric Schmidt and his wife, Wendy, according to Fox. Fox said that after a power struggle and an attempt to force him out in order to raise several million from the Sierra Club, he, Krapels, and Jacobson eventually left the organization.

Krapels has since launched an electric battery company in Brazil – another country that happens to hold a massive reserve of lithium and other minerals necessary for his products. Brazil has experienced a rush on lithium mining in recent years thanks to the roaring demand for lithium-ion batteries.

Krapels’ former partner at Tesla’s disastrous Solar City project, Elon Musk, announced plans this year to build an electric car factory in Brazil. Musk has even reportedly sought an audience with the country’s far-right president, Jair Bolsonaro, to further his business interests.

Today, the Solutions Project is “100% co opted and sold out,” Fox acknowledged. Indeed, the group’s board members currently include Brandon Hurlbut, a former Obama Department of Energy official who founded Boundary Stone Partners – a lobbying firm that represents the nuclear industry. Also on the board is Billy Parish, the founder of Mosaic, a financial firm that declares its “mission to revolutionize two of the biggest industries in the world: energy and finance…” Mosaic’s website states. “We focus on the integration of doing good (for the planet) and doing well (financially).”

According to its website, the Elon Musk Foundation is among the Solutions Project’s funders. The organization describes Musk as “the guy who is trying to save humanity in like four or five different ways,” comparing him to a Marvel Comics superhero.

In reality, Musk is a ferocious union-buster who recently fired workers for staying home as the Covid-19 pandemic hit – but not before deceiving them into believing they had permission to safely quarantine.

Other Solutions Project supporters include the Skoll Global Threats Fund, run by eBay billionaire Jeffrey Skoll. Skoll funded Al Gore’s film on climate change, “An Inconvenient Truth,” which went into production soon after Gore launched his Generation Investment Management fund – an inconvenient truth pointed out by “Planet of the Humans.”

The 11th Hour Project foundation of Google CEO Schmidt and his wife remains a supporter of the Solutions Project after ponying up the seed money to launch it. Asked in 2014 about the inequality and displacement that start-up tech businesses bring to the Bay Area, where Google is located, Schmidt responded, “Let us celebrate capitalism. $19 billion for 50 people? Good for them.”

When I challenged Fox about the co-optation of climate justice politics by tech oligarchs like Skoll, Schmidt, and Musk, he grew defensive. “You have to see these things in a time continuum of us trying to take off big, something bigger than anybody’s ever tried to take on in the world,” he stated, referencing his and his allies’ fight against the fossil fuel industry. “They’re bigger than Nazi Germany, bigger than America. Bigger than all of them combined. We’re a ragtag bunch of extraordinarily committed people who are willing to put our lives on the line to stop the fossil fuel industry.

“Yeah, that’s that’s really laudable,” Fox continued, referring to his own efforts, “and for a multi-millionaire circus barker, as Bill McKibben calls Michael Moore, to take potshots using flawed science, dishonest techniques, misrepresentation of the timeline, and 1,000 other things that are journalistic malpractice and that was called out by an extraordinary number of people – that’s the real story here. The real bully is Michael Moore here. It’s not me.”

The Producer

This year, Josh Fox launched a one-man show and film called “The Truth Has Changed.” According to promotional material for the performance, Fox narrated his experience as “an eyewitness to history” who “was the subject of a 100 million dollar smear campaign from the oil and gas industry.”

“Josh Fox was the beta test for the types of propaganda and smears the gang that created Cambridge Analytica is now known for world wide,” the film’s website stated. “And Josh is telling his story in an uncompromising way like never before.”

The performance was supposed to have enjoyed a lengthy run this January at one of the most renowned venues for political theater in the country, The Public Theater in New York City. But the show was abruptly canceled after the Public accused Fox of violating the theater’s code of conduct through “a series of verbal abuses to the staff.”

Fox, who is Jewish, retaliated by accusing the theater’s directors of anti-Semitism. According to the New York Times, Fox “said he had been told that he was too passionate, too loud and too emotional.”

“To me that is distinctly cultural,” Fox told the paper. “That’s a classic anti-Semitic trope.”

Behind the drama over the monologue’s cancellation, a more salient issue lingered. The executive producer of Fox’s “The Truth Has Changed” was Tom Dinwoodie, a wealthy “cleantech” entrepreneur and engineer who owned dozens of patents on solar technology, and therefore stood to reap a massive windfall profit from the renewables revolution that Fox and his allies were campaigning for.

Dinwoodie, who signed Fox’s letter calling for the retraction of “Planet of the Humans,” was a top donor to the Rocky Mountain Institute, a so-called “do-tank” where he serves as a lead trustee. In 2014, Dinwoodie helped oversee the merger of his think tank with billionaire Virgin CEO Richard Branson’s Carbon War Room, which was founded with “a mission to stimulate business-led market interventions that advance a low-carbon economy.”

“Increasingly, the solutions for climate change are those policy measures that drive economic growth,” a spokesman declares in a video announcing the strategic partnership between Branson’s non-profit and Dinwoodie’s Rocky Mountain “do-tank.”

In the same video, billionaire former Democratic Party presidential candidate and Rocky Mountain Institute donor Tom Steyer emphasized the profit motive behind the renewables transition: “Changing the way we generate and use energy is the largest industry in the history of the world. There is no time to waste.”

This July 9 – the day after the Biden-Sanders Unity Task Force released its policy recommendations – the Rocky Mountain Institute launched the Center for Climate Aligned Finance in partnership with four of the biggest banks in the world: Wells Fargo, Goldman Sachs, Bank of America, and JPMorgan Chase.

The initiative, according to Rocky Mountain, will serve as “an engine room for the financial sector to partner with corporate clients to identify practical solutions through deep partnerships with industry, civil society and policymakers to facilitate a transition in the global economy to net-zero emissions by mid-century.”

The partnership represented an obvious boon for green tycoons like Dinwoodie who profit from renewable energy. And for the big banks that continued to top the list of the world’s most prolific investors in the fossil fuel industry, it was another opportunity to greenwash their public image.

Given the economic interests represented by Dinwoodie and his “do-tank,” it was easy to understand why he signed Fox’s letter calling for “Planet of the Humans” to be retracted. The documentary had not only hammered his political partner, Richard Branson, as a PR savvy oligarch exploiting environmental politics; it took aim at the ethos of Big Green outfits that comforted their ruling-class funders with the promise that they could do good while continuing to do well.

When I asked Fox why he thought big tech tycoons and their family foundations were plowing their fortunes into climate activism, he responded, “Probably saving the planet.”

The Danish connection

While wealthy green businessmen like Dinwoodie and Elon Musk furthered their commercial interests by underwriting green advocacy, the V. Kann Rasmussen Foundation and its closely affiliated KR (Kann-Rasmussen) Foundation have strategically directed their resources into nurturing a who’s who of professional climate warriors – including several that played a role in the campaign to suppress “Planet of the Humans.”

Brian Valbjørn Sørensen, the executive director of the KR Foundation, was a former special advisor to the center-left Danish government that lost power in 2015. KR’s chair, Connie Hedegaard, was the ex-minister for climate and energy for the center-right Danish government of Anders Fogg Rasmussen, who went on to serve as secretary general of the NATO military alliance. As the European Union’s first climate chief, Hedegaard argued that renewable energy could strengthen NATO’s soft power against Russia by reducing natural gas imports from the designated enemy state.

KR’s support for groups like 350.org surfaced in “Planet of the Humans” during the cringe-inducing scene in which journalist Karyn Strickler grilled Bill McKibben about his organizational funders. According to the KR Foundation, it donated $2 million to 350.org in 2019.

Toby Smith, the photographer who filed the copyright claim against Planet of the Humans on explicitly “personal” grounds, happened to have been the media outreach director of a KR-funded non-profit called Climate Outreach. As the Rasmussen family’s KR Foundation stated in a recent financial filing, it initiated grants totaling nearly $2 million to Climate Outreach in 2019 alone. 

When British columnist George Monbiot published a vitriolic condemnation of “Planet of the Humans” in The Guardian, he neglected to mention that he had been a board member of the Rasmussen-backed Climate Outreach.

The V. Kann Rasmussen Foundation has also supported Naomi Klein’s environmentalist outfit, The Leap, according to the foundation’s website.

Klein, a longtime critic of elite family foundations and the billionaire class, was among the most prominent figures to join the campaign to censor “Planet of the Humans.” As her ally McKibben acknowledged, she unsuccessfully pressured Michael Moore to retract “Planet of the Humans” before it was even released.

Klein has celebrated the Danish government where KR Foundation leaders have served for advancing “some of the most visionary environmental policies in the world.” At the same time, she has denounced the “autocratic industrial socialism” of the Soviet Union and the “petro-populism” of the socialist government of Venezuela, where Denmark has recognized US-backed coup leader Juan Guaidó.https://platform.twitter.com/embed/index.html?creatorScreenName=maxblumenthal&dnt=true&embedId=twitter-widget-5&frame=false&hideCard=false&hideThread=false&id=892915285686079488&lang=en&origin=https%3A%2F%2Fthegrayzone.com%2F2020%2F09%2F07%2Fgreen-billionaires-planet-of-the-humans%2F&siteScreenName=TheGrayzoneNews&theme=light&widgetsVersion=219d021%3A1598982042171&width=550px

Klein’s recent broadsides against Venezuela contrasted strongly with her signing of a 2004 open letter that proclaimed, “If we were Venezuelan… we would vote for [Hugo] Chavez”; and a 2007 column in which she wrote that thanks to the Chavez government, “citizens had renewed their faith in the power of democracy to improve their lives.”

Naomi Klein and Angel Gurría, Secretary-General of the Organization for Economic Co-operation and Development (OECD) on November 4, 2015. Gurria was a former Finance Minister in the administration of Mexico’s neoliberal former president, Ernesto Zedillo. Gurria won the OECD’s “Globalist of the Year” award for his role in negotiating the NAFTA free trade deal and “promot[ing] trans-nationalism.”

From Big Green critic to “Planet of the Humans” opponent

Naomi Klein’s opposition to “Planet of the Humans” was surprising given the views she has expressed in the past on mainstream environmental politics. In 2013, for example, she bemoaned the “deep denialism in the environmental movement among the Big Green groups [on how to fight climate change]. And to be very honest with you,” she continued, “I think it’s been more damaging than the right-wing denialism in terms of how much ground we’ve lost.”

In her widely acclaimed 2008 book “The Shock Doctrine,” Klein documenting the Ford Foundation’s role as a CIA cutout that helped establish the Center for Latin American Studies at the University of Chicago.

The Ford-funded academic department nurtured the infamous “Chicago Boys,” a group of neoliberal economists led by Milton Friedman who conceived the disaster capitalist “shock doctrine” that inspired the title of Klein’s book. They applied their program to Chile as General Augusto Pinochet’s economic advisors following his CIA-backed military coup to destroy the leftist government of Chilean President Salvador Allende.

Klein also surveyed the Ford Foundation’s support for the “Berkeley Mafia” at the University of California that advised the hyper-repressive junta of General Suharto, which toppled Indonesia’s socialist government in 1965.

“The Berkeley Mafia had studied in the US as part of a program that began in 1956, funded by the Ford Foundation…” Klein wrote. “Ford-funded students became leaders of the campus groups that participated in overthrowing Sukarno, and the Berkeley Mafia worked closely with the military in the lead-up to the coup…”

Henry Kissinger, the Nixon foreign policy guru whom Klein identified as the mastermind of the dirty war in Chile, had previously served as the director of the Rockefeller Brothers Fund’s Special Strategies Project, which helped conceive US national security strategies for countering the spread of communism.

Today, the Ford Foundation and Rockefeller Brothers Fund support an array of liberal causes, from diversity and racial justice initiatives to the network of NGO’s organizing for fossil fuel divestment. At the same time, the Ford Foundation backs organizations that push regime change in Latin America, partnering with the US government to fund Freedom House, a DC-based NGO which supported the failed coup to oust Nicaragua’s elected leftist government in 2018. For its part, the Rockefeller Brothers Fund has supported The Syria Campaign, a public relations outfit that clamored for US military intervention to remove the UN-recognized government of Syria.

In 2011, when Klein was appointed to 350.org’s board of directors, she joined forces with an environmental organization incubated by the Rockefeller Brothers Fund and supported by the Ford Foundation. “As 350.org founder Bill McKibben puts it: unless we go after the ‘money pollution,’ no campaign against real pollution stands a chance,” Klein wrote at the time.

Klein’s 2015 book and documentary film on climate change, “This Changes Everything,” was initially launched as a project called “The Message.” It was supported with hundreds of thousands of dollars in grants from a who’s who of major family foundations that help sustain McKibben’s political apparatus.

In one of several grants to the book and film project, the Rockefeller Brothers Fund contributed $50,000 to “The Message” via a non-profit pass-through called the Sustainable Markets Foundation. [PDF]

Susan Rockefeller served as a co-executive producer of the documentary version of “This Changes Everything.” Her husband, David Rockefeller Jr. is the son of tycoon David Rockefeller, a US government-linked cold warrior who co-founded the Rockefeller Brothers Fund and helped back the US-managed coup that put Pinochet and the Chicago Boys in power in Chile. Rockefeller Jr., a major supporter of conservationist causes, is a former chairman of the Rockefeller Brothers Fund and board member of Rockefeller Financial Services.

In 2014, the Ford Foundation chipped in with $250,000 to Klein’s project. [PDF]

Klein’s “The Message” also benefited from $140,000 in support from the Schmidt Family Foundation of Google CEO Eric Schmidt and his wife, Wendy. The Schmidt Family Foundation is an ongoing contributor to McKibben’s 350.org, kicking in $200,000 in 2018 [PDF].

In April 2019, Klein released “A Message From The Future,” a video collaboration with Democratic Rep. Alexandria Ocasio-Cortez and artist and pundit Molly Crabapple, which promoted the Green New Deal as a pathway to a renewable-powered economic utopia.

Crabapple, a vehement supporter of Washington’s campaign for regime change in Syria, is an Eric and Wendy Schmidt Fellow at the New America Foundation, a Democratic Party-linked think tank substantially funded by Google’s Schmidt, the Ford Foundation and the US State Department.

In a recent The Intercept column, Klein took aim at Schmidt, describing him as one of the billionaires exploiting “a coherent Pandemic Shock Doctrine” to begin “building a high tech dystopia.” She noted that Schmidt is closely aligned with the national security state as chair of the Defense Innovation Board, which consults for the Pentagon on the military’s application of artificial intelligence.

Schmidt also happens to be a proponent of a “smart” energy grid, which he says will “modernize the electric grid to make it look more like the Internet.” Such a model would not only benefit tech companies like Google which make their money buying and selling data, but the U.S. national security state, whose partnerships with big tech companies increase the capacity of its surveillance apparatus.

The Senate version of the Green New Deal calls for the construction of “smart” power grids almost exactly like those Schmidt imagined. Klein and other high-profile Green New Deal proponents have neglected to mention that this seeming benign component of the well-intentioned plan could represent a giant step on the way to the “high tech dystopia” of Silicon Valley barons and their national security state partners.

In May 2018, Klein became the Gloria Steinem Endowed Chair in Media, Culture and Feminist Studies at Rutgers University. The position was created “following a three-year, $3 million campaign…including a dozen foundations.” Among the “early and path breaking contributors,” according to Rutgers, was the Ford Foundation.

Gloria Steinem (L) and Naomi Klein at the 2018 Rutgers ceremony inaugurating Steinem’s endowed chair

Contributions also poured in for the endowment from tycoons like Sheryl Sandberg, the billionaire chief operating officer of Facebook and advocate of corporate “Lean In” feminism; and Harvey Weinstein, the Hollywood mogul who was sentenced this March to 23 years in prison for first degree criminal sexual assault. According to Rutgers, Weinstein provided “a gift of $100,000 in honor of his late mother, who shared Gloria Steinem’s hopes for female equality.”

I had hoped to have a conversation with Klein, a former colleague at the Nation Institute, about her reflexive opposition to a documentary that advanced many of the same arguments that appeared in her past writings. Was the exclusive focus on carbon emissions by professional climate warriors not a blinkered approach that ignored the environmental damage inherent in producing still-unproven renewable technology? Did “cleantech” tycoons not have a vested interest in advancing a global transition to the renewable products their companies manufactured? And when she had clearly articulated the problems with billionaire-backed Big Green advocacy, why had Klein cast her lot with a political network that seemed to epitomize it?

My emails were met with an auto-reply informing me Klein was “off grid,” and referring me to her personal assistant.

According to Fox, high-profile climate warriors like McKibben and Klein had no interest in speaking to me about their opposition to the film because “it’s like four months ago, man, everybody’s moved on.”

Seeing green in Biden

By August, members of the professional climate advocacy network that saw its interests threatened by “Planet of the Humans” was preparing for a much more elaborate on-screen production that promised new opportunities.

In the weeks ahead of the Democratic National Convention, climate justice organizations like the Sunrise Movement 501 c-4 which emerged in the shadow of Sen. Bernie Sanders’ presidential run and condemned former Vice President Joseph Biden as a tool of the establishment suddenly changed their tune.

Flush with dark money from Democratic Party-aligned billionaires, Sunrise Movement co-founder Varshini Prakash stated on July 14 – the day Biden released his clean energy plan: “It’s no secret that we’ve been critical of Vice President’s Biden’s plans and commitments in the past. Today, he’s responded to many of those criticisms: dramatically increasing the scale and urgency of investments… Our movement, alongside environmental justice communities and frontline workers, has taught Joe Biden to talk the talk.”

While it brands itself as a grassroots movement that has organized anti-establishment stunts putting centrist figures like Democratic Sen. Dianne Feinstein on the spot, the Sunrise Movement was incubated with a grant from the Sierra Club, the Mike Bloomberg-backed juggernaut of Big Green organizing. Today, offices of the two organizations are located a floor apart in the same building in downtown Washington DC.

Ahead of the DNC, the Biden campaign introduced a $2 trillion plan pledge to invest heavily in renewable technology to achieve “a carbon pollution-free power sector by 2035.” The plan promised to erect 500 million solar panels in the next five years alongside 60,000 new wind turbines.

With the demand for solar plummeting due to the coronavirus pandemic, the prospect of gigantic government subsidies was music to the ears of the “cleantech” tycoons who sponsor Democratic Party-aligned climate advocacy organizations.

Many of these green millionaires and billionaires had feasted at the trough of Obama’s stimulus package, which was directly responsible for powering the rise of America’s solar industry. After promising upon his inauguration to invest $150 billion in “a new green energy business sector,” Obama doled out an eye-popping $4.9 billion in subsidies to Tesla’s Elon Musk and a $1.2 billion loan guarantee for Tom Dinwoodie’s SunPower US to construct the California Valley Solar Ranch. In June 2019, an “avian incident” caused a fire at the SunPower Solar Ranch project, impacting over 1200 acres and knocking out 84% of generating capacity for several weeks.

“Planet of the Humans” presented viewers with the disturbing story of the Ivanpah solar plant, a signature initiative in Obama’s green energy plan which was co-owned by Google. Gifted with $1.6 billion in loan guarantees and $600 million in federal tax credits, Ivanpah was built on 5.6 square miles of pristine public land close to California’s Mojave National Preserve. In its first year, the massive plant produced less than half its of its planned energy goal while burning over 6000 birds to death.

The Ivanpah solar thermal plant and its three power towers spans across the Mojave Desert

Because of the intermittency inherent to solar power, the gargantuan energy project has had to burn massive amounts of natural gas to keep the system primed when the sun is not shining. Despite its dependence on fossil fuel, Ivanpah still qualifies under state rules as a renewable plant.

“The bottom line is the public didn’t expect this project to consume this much natural gas,” David Lamfrom, California desert manager for the National Parks Conservation Association, told the local Press-Enterprise. “We did not have full knowledge that this was what we were signing up for.”

Even after the Obama administration poured billions of dollars into solar projects, solar energy output increased between 2008 and 2016 by just .88% as a total of American energy production.

Meanwhile, across the country, many new wind projects remain stalled due to community concerns about land destruction. In the home state of Green New Deal advocate Sen. Bernie Sanders, the only remaining wind project was canceled this January.

For raising questions about the efficacy and environmental cost of renewable projects like these, and proposing an explicitly anti-capitalist solution to the corporate destruction of the planet, the makers of “Planet of the Humans” were steamrolled by a network of professional climate activists, billionaire investors and industry insiders.

Now, with the Biden campaign promising a new flood of renewable subsidies and tax breaks under the auspices of a “clean” energy plan, the public remains in the dark about what it is signing up for. Even if the ambitious agenda fails to deliver any substantial environmental good, it promises a growing class of green investors another opportunity to do well.

Assange’s Third Day at the Old Bailey: Bias, Politics and Wars on Journalism

by Dr. Binoy Kampmark

It is no mean feat trying to pin down Assange’s political system.  Leftward, rightward, with resistance to the centre?  Lashings of libertarianism; heavy doses of anti-war and holding the powerful to account?  Such figures tend to be sui generis.  In his submitted statement to the court, Rogers suggests a uniform theme. 

“The political objective of seeking to achieve greater transparency in the workings of governments is clearly both the motivation and the modus operandi of Mr Assange and the organisation WikiLeaks.”

On the stand, Rogers described the Assange method of influence and disruption: the release of the war logs, their influence on public opinion regarding the US imperium’s engagements in Iraq and Afghanistan, the revelations of 15,000 unaccounted civilian casualties.  The butcher’s bill of the imperium, in other words, was laid bare by the WikiLeaks’ releases.

For Rogers, this approach jarred with various US administrations, but none more so than that of Trump’s.  Assange’s entire approach and “what he stands for represents a threat to normal political endeavour.” 

James Lewis QC for the prosecution made his effort to narrow, clip and sharpen the focus on Assange, questioning the expanse of political belief being attributed by Rogers.  At times, the prosecution seemed suspended in a time capsule, suggesting, for instance, that political opinions were only applicable to governments and leaders.  Rogers preferred a more complex picture: the evolving nature of what political opinion might constitute (for instance, it could include “transnational elites” and attitudes towards corporations).  The issue of publishing an item or not could also constitute a form of political opinion. 

Lewis then went on the attack, grumpy at the length of Rogers’ responses and suggesting that his testimony was biased towards the defence.  Why had he omitted the views of such individuals as US assistant attorney Gordon Kromberg, who argued that prosecuting Assange had been a criminal rather than political matter?  Again, Rogers took preferred the broad approach.  Prosecutors of a certain rank tend to mimic the views of their superiors – that is their due.  What mattered were those higher-ups who had initiated a change in policy regarding WikiLeaks to instigate a “politically motivated prosecution”.  This could be demonstrated with some plausibility by considering the wider political context of different administrations.  The Obama administration had set its heart on not prosecuting Assange; those in the Trump administration had warmed to the idea. 

Not quite getting his pound of flesh, Lewis moved on to targeting the reasons why the Obama administration had gone cold on prosecuting Assange.  Like many black letter lawyers on this point, the issue of Assange being confined in the Ecuadorean embassy has them in knots.  “What would be the point [of arresting Assange] if he’s hiding in the embassy?” posed Lewis.  Rogers, rather sensibly, suggested that this would constitute a pressuring move.  “It would have made very good sense to bring it at that time, to show a standing attempt to bring Mr Assange to justice.”  Lewis had also made a specious point.  As investigative journalist Stefania Maurizi points out, individuals such as Edward Snowden have been duly charged despite fleeing the jurisdiction.  Practical custody was hardly a necessary precondition to getting that paperwork ready.

Lewis proceeded to till the same ground as that covered in the testimony of Mark Feldstein, attempting to push the suggestion that the case against Assange might yield future charges, at least as believed by himself and his defence team.  Rogers offered similar parrying: the Trump administration’s approach to Assange was distinct, its attitudes conveyed through the hostile remarks of former CIA director Mike Pompeo and the then hungry Attorney General Jeff Sessions.  A difference in approach might be gathered from President Barack Obama’s commutation of Chelsea Manning’s sentence.  This was Trump’s possible counter. 

Post-lunch interest then turned to Trevor Timm, Director of Freedom of the Press Foundation.  As he points out in the submitted statement, “The decision to indict Julian Assange on allegations of a ‘conspiracy’ between a publisher and his source or potential sources, and for the publication of truthful information, encroaches on fundamental freedoms.”  WikiLeaks was a pioneer in secure submission systems such as SecureDrop, one that had been emulated by media outlets such as the Wall Street Journal and Al Jazeera.   

It was incumbent upon journalists that they “develop relationships with their sources” and attempts to punish publishing activity arising from the use of “leaked documents of public importance” would face First Amendment difficulties.

The Trump administration, however, had proved bolder than its predecessors.  The Espionage Act had been previously floated at such journalists as James Bamford, Ben Bradlee, Seymour Hersh and Neil Sheehan.  It took Assange’s arrest and charging in 2019 to break with tradition.

The indictment, particularly in alleging that Assange had engaged in a conspiracy with Chelsea Manning to crack a military computer passport for reasons of remaining anonymous, would criminalise a common news practice and the whole pursuit of national security journalism.  Were the prosecution permitted “to go forward, dozens of reporters at the New York TimesWashington Post and elsewhere would also be in danger.”

Lewis took umbrage at Timm’s claim, outlined in his statement, that Trump had engaged in an enthusiastic “war on journalism”.  The FPF director was unsparing, suggesting that the indictment of the WikiLeaks publisher was part of this war, “and it is no exaggeration to say the First Amendment itself is at risk.”  To Lewis, Timm replied with a salient reminder that Trump had tweeted 2,200 times about the press, describing them at stages as the “enemy of the people”.  It was “very telling that Trump’s is the first one to try to bring a case like this since the Nixon administration.” 

The prosecution preferred returning to that exhausted nag of an idea: that Assange could not be seen as a journalist.  A form of fallacious logic came into play: the US Department of Justice had no interest in prosecuting journalists and would be breaching their own prosecutorial guidelines in doing so; Assange was not a journalist, therefore showing appropriate discrimination.   

Timm had an appropriate response to this nonsensical approach.  “In the US, the First Amendment protects everyone. Whether you consider Assange a journalist doesn’t matter; he was engaging in journalistic activity.”  And if the DOJ was in breach of federal rules, it should follow that they be held accountable.   

Timm also refused to ingest the prosecution line that the indictment was sufficiently narrow to only cover the publication of documents that had revealed the names of informants working for the US.  Other charges in the indictment focused on criminalising the act of possessing the documents.  That every claim would implicate journalists across the spectrum, as would “the mere thought of obtaining these documents”.  A sinister, dangerous implication. 

The prosecution was also caught up in what a “responsible journalist” might do.  While the issue of unnecessarily publishing the name of a third party thereby endangering that person might raise matters of ethical responsibility, that, suggested Timm, was a separate question “from what is illegal or legal conduct.”  A previous attempt to criminalise publishing the name of a US intelligence source had been made, by Senator Joseph Lieberman among others, in 2010 as a direct response to the WikiLeaks disclosures.  But the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act never became law.   

As for whether WikiLeaks had behaved appropriately or not in publishing the entire tranche of uncensored US diplomatic cables, despite it not being responsible for leaking the password to the relevant encrypted file containing the documents, Timm was firm.  Governments should not have a hand in making such editorial judgments; the question centred on illegality, something which WikiLeaks could not be accused of.

first published on globalresearch.ca

Assange’s Fourth Day at the Old Bailey: COVID in the Courtroom

by Dr. Binoy Kampmark

it is extraordinary in the present day and age we are witnessing this tragedy, that a silence from all media is deafening, and how the beacons of “freedom of the press” are shown as liars and hypocrites

It all had the appropriate Orwellian shades and show trial trimmings.  The US prosecution team had gone remote; Assange’s legal team was physically present and masked.  Technology again did its bedevilling magic at the Central Criminal Court.  At one point, Joel Smith for the prosecution was attempting to get the attention of Judge Vanessa Baraitser to inform her that nothing could be heard in the court room.  The screen of chief prosecutor Lewis had also frozen.   

Unlike the previous three days of these extradition proceedings, the central contentions were not Assange the public interest journalist, the discloser of informant names, or President Donald J. Trump’s war on the Fourth Estate. It was the revelation that COVID-19 had found its way into the Old Bailey. On Wednesday night, Judge Baraitser was told that a member of one of the legal teams may have been exposed to the coronavirus.  As was announced on Court News,

“Julian Assange’s extradition hearing at the Old Bailey today will not be going ahead because the husband of one of the US lawyers has come down with COVID-like symptoms.  Once he gets the result of a test the judge will determine how best to proceed.”

Assange would have had reason to reflect upon this moment with bitter mockery.  His conditions in Her Majesty’s Belmarsh Prison have been a picture of shoddy treatment, both physically and symbolically.  Access to his legal team has been scandalously scant, exacerbated by pandemic lockdown conditions.  The entire institutional treatment of the Australian has been considered nothing less than that of a tortured figure, “shocking and excessive”, to use the words of the International Bar Association’s Human Rights Institute.   His supporters, fearful, see him at risk of contracting coronavirus and suffering, in his frail state, the gruelling effects of COVID-19.

His efforts to seek bail in order to escape the dangers of viral transmission have been foiled by the pitiless Baraitser.  In March, Edward Fitzgerald QC attempted to convince the judge that medical “experts consider that [Assange] is particularly at risk of developing coronavirus and, if he does, that it develops into very severe complications for him.”  Should he contract it, “it would be very doubtful that Belmarsh would be able to cope with his condition.” 

Swatting such concerns away, Baraitser saw little reason for concern: there were no instances of COVID-19 at Belmarsh, a reckless conclusion to draw given the self-isolation measures imposed upon a hundred personnel at the time.  The group Doctors for Assange were shaken by the ruling. In their March 27 statement, they vented.  “Despite our prior unequivocal statement that Mr Assange is at increased risk of serious illness and death were he to contract coronavirus and the evidence of medical experts, Baraitser dismissed the risk, citing UK guidelines for prisons in responding to the global pandemic.”  The editor-in-chief of WikiLeaks, Kristinn Hrafnsson was furious.  “To expose another human being to serious illness, and to the threat of losing their life, is grotesque and quite unnecessary.”

In June, Doctors for Assange reiterated the call that Assange be granted bail, having met “internationally recommended criteria for prisoner release during COVID-19.”  Globally, prisons were being emptied of inmates to prevent the march of COVID-19.  Assange remained the exception.

On September 10, 2020, history grimaced with irony. It was the prosecutors for the United States, Assange’s incessant harassers, who had been potentially infected.  Notwithstanding this, Judge Baraitser was not averse to pushing onto a fifth day of proceedings, a point that agitated the legal teams and seemed to be as quixotic as it was indifferent.

Fitzgerald, representing Assange, urged the court to accept the logical assumption that “COVID will be in the courtroom.”  The staff of the court would themselves be “at risk, and you yourself may well be at risk.”  It was a good ploy on Fitzgerald’s part to mention the court as the primary consideration, reserving the concerns of his client for last.  “Finally, our client Mr Assange, who is vulnerable you are aware, would be at risk in court.”  His request for adjournment struck a common chord with Lewis.  Proceedings will be postponed until September 14, awaiting the test results.  In the meantime, the defence and prosecution will make interest of justice submissions on how they wish to proceed in the event the test is positive for coronavirus.

In the meantime, the rest of the Old Bailey will continue to grind.  A spokesperson for the City of London Corporation was businesslike in moving forward.  “The Central Criminal Court is deep cleaned every day in accordance with government guidelines and will remain open.”

It was left to Kevin Gosztola of Shadowproof to sum up the day’s sentiment in wry fashion: “Looking forward to the courtroom sketch of Assange in a glass box with only the judge in the room as we proceed virtually.  That’ll be [sic] quite appropriate image for this case.”  Lewis, in the meantime, might be able to obtain his charger.

show trial of Julian Assange

The Assange Hearing – Day 7

Your Man in the Public Gallery – by Craig John Murray

truly remarkable in this day and age this could occur. by the very nations who tout they are “free” “just” and should be trusted beyond any reasonable doubt are those who betray themselves and the public.


CLIVE STAFFORD SMITH

This morning we went straight in to the evidence of Clive Stafford Smith, a dual national British/American lawyer licensed to practice in the UK. He had founded Reprieve in 1999 originally to oppose the death penalty, but after 2001 it had branched out into torture, illicit detention and extraordinary rendition cases in relation to the “war on terror”.

Clive Stafford Smith testified that the publication by Wikileaks of the cables had been of great utility to litigation in Pakistan against illegal drone strikes. As Clive’s witness statement put it at paras 86/7:

86. One of my motivations for working on these cases was that the U.S. drone campaign appeared to be horribly mismanaged and was resulting in paid informants giving false information about innocent people who were then killed in strikes. For example, when I shared the podium with Imran Khan at a “jirga” with the victims of drone strikes, I said in my public remarks that the room probably contained one or two people in the pay of the CIA. What I never guessed was that not only was this true but that the informant would later make a false statement about a teenager who attended the jirga such that he and his cousin were killed in a drone strike three days later. We knew from the official press statement afterwards that the “intelligence” given to the U.S. involved four “militants” in a car; we knew from his family just him and his cousin going to pick up an aunt. There is a somewhat consistent rule that can be seen at work here: it is, of course, much safer for any informant to make a statement about someone who is a “nobody”, than someone who is genuinely dangerous.
87. This kind of horrific action was provoking immense anger, causing America’s status in Pakistan to plummet, and was making life more dangerous for Americans, not less.

Legal action dependent on the evidence about US drones strike policy revealed by Wikileaks had led to a judgement against assassination by the Chief Justice of Pakistan and to a sea change to public attitudes to drone strikes in Waziristan. One result had been a stopping of drone strikes in Waziristan.

Wikileaks released cables also revealed US diplomatic efforts to block international investigation into cases of torture and extraordinary rendition. This ran counter to the legal duty of the United States to cooperate with investigation of allegations of torture as mandated in Article 9 of the UN Convention Against Torture.

Stafford Smith continued that an underrated document released by Wikileaks was the JPEL, or US military Joint Priority Effects List for Afghanistan, in large part a list of assassination targets. This revealed a callous disregard of the legality of actions and a puerile attitude to killing, with juvenile nicknames given to assassination targets, some of which nicknames appeared to indicate inclusions on the list by British or Australian agents.

Stafford Smith gave the example of Bilal Abdul Kareem, an American citizen and journalist who had been the subject of five different US assassination attempts, using hellfire missiles fired from drones. Stafford Smith was engaged in ongoing litigation in Washington on whether “the US Government has the right to target its own citizens who are journalists for assassination.”

Stafford Smith then spoke of Guantanamo and the emergence of evidence that many detainees there are not terrorists but had been swept up in Afghanistan by a system dependent on the payment of bounties. The Detainee Assessment Briefs released by Wikileaks were not independent information but internal US Government files containing the worst allegations that the US had been able to “confect” against prisoners including Stafford Smith’s clients, and often get them to admit under torture.

These documents were US government allegations and when Wikileaks released them it was his first thought that it was the US Government who had released them to discredit defendants. The documents could not be a threat to national security.

Inside Guantanamo a core group of six detainees had turned informant and were used to make false allegations against other detainees. Stafford Smith said it was hard to blame them – they were trying to get out of that hellish place like everybody else. The US government had revealed the identities of those six, which put into perspective their concern for protecting informants in relation to Wikileaks releases.

Clive Stafford Smith said he had been “profoundly shocked” by the crimes committed by the US government against his clients. These included torture, kidnapping, illegal detention and murder. The murder of one detainee at Baghram Airport in Afghanistan had been justified as a permissible interrogation technique to put fear into other detainees. In 2001, he would never have believed the US Government could have done such things.

Stafford Smith spoke of use of Spanish Inquisition techniques, such as strapado, or hanging by the wrists until the shoulders slowly dislocate. He told of the torture of Binyam Mohamed, a British citizen who had his genitals cut daily with a razor blade. The British Government had avoided its legal obligations to Binyam Mohamed, and had leaked to the BBC the statement he had been forced to confess to under torture, in order to discredit him.

At this point Baraitser intervened to give a five minute warning on the 30 minute guillotine on Stafford Smith’s oral evidence. Asked by Mark Summers for the defence how Wikileaks had helped, Stafford Smith said that many of the leaked documents revealed illegal kidnapping, rendition and torture and had been used in trials. The International Criminal Court had now opened an investigation into war crimes in Afghanistan, in which decision Wikileaks released material had played a part.

Mark Summers asked what had been the response of the US Government to the opening of this ICC investigation. Clive Stafford Smith stated that an Executive Order had been issued initiating sanctions against any non-US citizen who cooperated with or promoted the ICC investigation into war crimes by the US. He suggested that Mr Summers would now be subject to US sanction for promoting this line of questioning.

Mr Stafford Smith’s 30 minutes was now up. You can read his full statement here. There could not have been a clearer example from the first witness of why so much time yesterday was taken up with trying to block the evidence of defence witnesses from being heard. Stafford Smith’s evidence was breathtaking stuff and clearly illustrated the purpose of the time guillotine on defence evidence. This is not material governments wish to be widely aired.

James Lewis QC then cross-examined Clive Stafford Smith for the prosecution. He noted that references to Wikileaks in Stafford Smith’s written evidence were few and far between. He suggested that Stafford Smith’s evidence had tended to argue that Wikileaks disclosures were in the public interest; but there was specifically no public interest defence allowed in the UK Official Secrets Act.

Stafford Smith replied that may be, but he knew that was not the case in America.

Lewis then said that in Stafford Smith’s written evidence paras 92-6 he had listed specific Wikileaks cables which related to disclosure of drone policy. But publication of these particular cables did not form part of the indictment. Lewis read out part of an affidavit from US Assistant Attorney Kromberg which stated that Assange was being indicted only for cables containing the publication of names of informants.

Stafford Smith replied that Kromberg may state that, but in practice that would not be the case in the United States. The charge was of conspiracy, and the way such charges were defined in the US system would allow the widest inclusion of evidence. The first witness at trial would be a “terrorism expert” who would draw a wide and far reaching picture of the history of threat against the USA.

Lewis asked whether Stafford Smith had read the indictment. He replied he had read the previous indictment, but not the new superseding indictment.

Lewis stated that the cables Stafford Smith quoted had been published by the Washington Post and the New York Times before they were published by Wikileaks. Stafford Smith responded that was true, but he understood those newspapers had obtained them from Wikileaks. Lewis then stated that the Washington Post and New York Times were not being prosecuted for publishing the same information; so how could the publication of that material be relevant to this case?

Lewis quoted Kromberg again:

“The only instance in which the superseding indictment encompasses the publication of documents, is where those documents contains names which are put at risk”.

Stafford Smith again responded that in practice that was not how the case would be prosecuted in the United States. Lewis asked if Stafford Smith was calling Kromberg a liar.

At this point Julian Assange called out from the dock “This is nonsense. Count 1 states throughout “conspiracy to publish”. After a brief adjournment, Baraitser warned Julian he would be removed from the court if he interrupted proceedings again.

Stafford Smith said he had not said that Kromberg was a liar, and had not seen the full document from which Lewis was selectively quoting at him. Count 1 of the indictment is conspiracy to obtain national security information and this references dissemination to the public in a sub paragraph. This was not limited in the way Kromberg suggests and his claim did not correspond to Stafford Smith’s experience of how national security trials are in fact prosecuted in the United States.

Lewis reiterated that nobody was being prosecuted for publishing except Assange, and this only related to publishing names. He then asked Stafford Smith whether he had ever been in a position of responsibility for classifying information, to which he got a negative reply. Lewis then asked if had ever been in an official position to declassify documents. Stafford Smith replied no, but he held US security clearance enabling him to see classified material relating to his cases, and had often applied to have material declassified.

Stafford Smith stated that Kromberg’s assertion that the ICC investigation was a threat to national security was nonsense [I confess I am not sure where this assertion came from or why Stafford Smith suddenly addressed it]. Lewis suggested that the question of harm to US national interest from Assange’s activities was best decided by a jury in the United States. The prosecution had to prove damage to the interests of the US or help to an enemy of the US.

Stafford Smith said that beyond the government adoption of torture, kidnapping and assassination, he thought the post-2001 mania for over-classification of government information was an even bigger threat to the American way of life. He recalled his client Moazzam Begg – the evidence of Moazzam’s torture was classified “secret” on the grounds that knowledge that the USA used torture would damage American interests.

Lewis then took Stafford Smith to a passage in the book “Wikileaks; Inside Julian Assange’s War on Secrecy”, in which Luke Harding stated that he and David Leigh were most concerned to protect the names of informants, but Julian Assange had stated that Afghan informants were traitors who merited retribution. “They were informants, so if they got killed they had it coming.” Lewis tried several times to draw Stafford Smith into this, but Stafford Smith repeatedly said he understood these alleged facts were under dispute and he had no personal knowledge.

Lewis concluded by again repeating that the indictment only covered the publication of names. Stafford Smith said that he would eat his hat if that was all that was introduced at trial.

In re-examination, Mark Summers said that Lewis had characterised the disclosure of torture, killing and kidnapping as “in the public interest”. Was that a sufficient description? Stafford Smith said no, it was also the provision of evidence of crime; war crime and illegal activity.

Summers asked Stafford Smith to look at the indictment as a US lawyer (which Stafford Smith is) and see if he agreed with the characterisation by Lewis that it only covered publication where names were revealed. Summers read out this portion of the superseding indictment:

and pointed out that the “and” makes the point on documents mentioning names an additional category of document, not a restriction on the categories listed earlier. You can read the full superseding indictment here; be careful when browsing as there are earlier superseding indictments; the US Government changes its indictment in this case about as often as Kim Kardashian changes her handbag.

Summers also listed Counts 4, 7, 10, 13 and 17 as also not limited to the naming of informants.

Stafford Smith again repeated his rather different point that in practice Kromberg’s assertion does not actually match how such cases are prosecuted in the US anyway. In answer to a further question, he repeated that the US government had itself released the names of its Guantanamo Bay informants.

In regard to the passage quoted from David Leigh, Summers asked Stafford Smith “Do you know that Mr Harding has published untruths in the press”. Lewis objected and Summers withdrew (although this is certainly true).

This concluded Clive Stafford Smith’s evidence. Before the next witness, Lewis put forward an argument to the judge that it was beyond dispute that the new indictment only related, as far as publication being an offence was concerned, to publication of names of defendants. Baraitser had replied that plainly this was disputed and the matter would be argued in due course.

PROFESSOR MARK FELDSTEIN

The afternoon resumed the evidence of Professor Mark Feldstein, begun sporadically amid technical glitches on Monday. For that reason I held off reporting the false start until now; I here give it as one account. Prof Feldstein’s full witness statement is here.

Professor Feldstein is Chair of Broadcast Journalism at Maryland University and had twenty years experience as an investigative journalist.

Feldstein stated that leaking of classified information happens with abandon in the United States. Government officials did it frequently. One academic study estimated such leaks as “thousands upon thousands”. There were journalists who specialised in national security and received Pulitzer prizes for receiving such leaks on military and defence matters. Leaked material is published on a daily basis.

Feldstein stated that “The first amendment protects the press, and it is vital that the First Amendment does so, not because journalists are privileged, but because the public have the right to know what is going on”. Historically, the government had never prosecuted a publisher for publishing leaked secrets. They had prosecuted whistleblowers.

There had been historical attempts to prosecute individual journalists, but all had come to nothing and all had been a specific attack on a perceived Presidential enemy. Feldstein had listed three instances of such attempts, but none had reached a grand jury.
[This is where the technology broke down on Monday. We now resume with Tuesday afternoon.]

Mark Summers asked Prof Feldstein about the Jack Anderson case. Feldstein replied he had researched this for his book “Poisoning the Press”. Nixon had planned to prosecute Anderson under the Espionage Act but had been told by his Attorney General the First Amendment made it impossible. Consequently Nixon had conducted a campaign against Anderson that included anti-gay smears, planting a spy in his office and foisting forged documents on him. An assassination plot by poison had even been discussed.

Summers took Feldstein to his evidence on “Blockbuster” newspaper stories based on Wikileaks publications:

  • A disturbing videotape of American soldiers firing on a crowd from a helicopter above Baghdad, killing at least 18 people; the soldiers laughed as they targeted unarmed civilians, including two Reuters journalists.
  • US officials gathered detailed and often gruesome evidence that approximately 100,000 civilians were killed after its invasion of Iraq, contrary to the public claims of President George W. Bush’s administration, which downplayed the deaths and insisted that such statistics were not maintained. Approximately 15,000 of these civilians killings had never been previously disclosed anywhere.
  • American forces in Iraq routinely turned a blind eye when the US-backed government there brutalized detainees, subjecting them to beatings, whippings, burnings, electric shock, and sodomy.
  • After WikiLeaks published vivid accounts compiled by US diplomats of rampant corruption by Tunisian president Zine el-Abidine Ben Ali and his family, ensuing street protests forced the dictator to flee to Saudia Arabia. When the unrest in Tunisia spread to other Mideast countries,WikiLeaks was widely hailed as a key catalyst for this “Arab Spring.”
  • In Afghanistan, the US deployed a secret “black” unit of special forces to hunt down “high value” Taliban leaders for “kill or capture” without trial.
  • The US government expanded secret intelligence collection by its diplomats at the United Nations and overseas, ordering envoys to gather credit card numbers, work schedules, and frequent flier numbers of foreign dignitaries—eroding the distinction between foreign service officers and spies.
  • Saudi Arabian King Abdullah secretly implored the US to “cut off the head of the snake” and stop Iran from developing nuclear weapons even as private Saudi donors were the number-one source of funding to Sunni terrorist groups worldwide.
  • Customs officials caught Afghanistan’s vice president carrying $52 million in unexplained cash during a trip abroad, just one example of the endemic corruption at the highest levels of the Afghan government that the US has helped prop up.
  • The US released “high risk enemy combatants” from its military prison in Guantanamo Bay, Cuba who then later turned up again in Mideast battlefields. At the same time, Guantanamo prisoners who proved harmless—such as an 89-year-old Afghan villager suffering from senile dementia—were held captive for years.
  • US officials listed Pakistan’s intelligence service as a terrorist organization and found that it had plotted with the Taliban to attack American soldiers in Afghanistan—even though Pakistan receives more than $1 billion annually in US aid. Pakistan’s civilian president, Asif Ali Zardari, confided that he had limited control to stop this and expressed fear that his own military might “take me out.”

Feldstein agreed that many of these had revealed criminal acts and war crimes, and they were important stories for the US media. Summers asked Feldstein about Assange being charged with soliciting classified information. Feldstein replied that gathering classified information is “standard operating procedure” for journalists. “My entire career virtually was soliciting secret documents or records”

Summers pointed out that one accusation was that Assange helped Manning cover her tracks by breaking a password code. “Trying to help protect your source is a journalistic obligation” replied Feldstein. Journalists would provide sources with payphones, fake email accounts, and help them remove fingerprints both real and digital. These are standard journalistic techniques, taught at journalism college and workshops.

Summers asked about disclosure of names and potential harm to people. Feldstein said this was “easy to assert, hard to establish”. Government claims of national security damage were routinely overblown and should be treated with scepticism. In the case of the Pentagon Papers, the government had claimed that publication would identify CIA agents, reveal military plans and lengthen the Vietnam War. These claims had all proven to be untrue.

On the White House tapes Nixon had been recorded telling his aides to “get” the New York Times. He said their publications should be “cast in terms of aid and comfort to the enemy”.

Summers asked about the Obama administration’s attitude to Wikileaks. Feldstein said that there had been no prosecution after Wikileaks’ major publications in 2010/11. But Obama’s Justice Department had instigated an “aggressive investigation”. However they concluded in 2013 that the First Amendment rendered any prosecution impossible. Justice Department Spokesman Matthew Miller had published that they thought it would be a dangerous precedent that could be used against other journalists and publications.

With the Trump administration everything had changed. Trump had said he wished to “put reporters in jail”. Pompeo when head of the CIA had called Wikileaks a “hostile intelligence agency”. Sessions had declared prosecuting Assange “a priority”.

James Lewis then rose to cross-examine Feldstein. He adopted a particularly bullish and aggressive approach, and started by asking Feldstein to confine himself to very short, concise answers to his precise questions. He said that Feldstein “claimed to be” an expert witness, and had signed to affirm that he had read the criminal procedural rules. Could he tell the court what those rules said?

This was plainly designed to trip Feldstein up. I am sure I must have agreed WordPress’s terms and conditions in order to be able to publish this blog, but if you challenged me point blank to recall what they say I would struggle. However Feldstein did not hesitate, but came straight back saying that he had read them, and they were rather different to the American rules, stipulating impartiality and objectivity.

Lewis asked what Feldstein’s expertise was supposed to be. Feldstein replied the practice, conduct and history of journalism in the United States. Lewis asked if Feldstein was legally qualified. Feldstein replied no, but he was not giving legal opinion. Lewis asked if he had read the indictment. Feldstein replied he had not read the most recent indictment.

Lewis said that Feldstein had stated that Obama decided not to prosecute whereas Trump did. But it was clear that the investigation had continued through from the Obama to the Trump administrations. Feldstein replied yes, but the proof of the pudding was that there had been no prosecution under Obama.

Lewis referred to a Washington Post article from which Feldstein had quoted in his evidence and included in his footnotes, but had not appended a copy. “Was that because it contained a passage you do not wish us to read?” Lewis said that Feldstein had omitted the quote that “no formal decision had been made” by the Obama administration, and a reference to the possibility of prosecution for activity other than publication.

Feldstein was plainly slightly rattled by Lewis’ accusation of distortion. He replied that his report stated that the Obama administration did not prosecute, which was true. He had footnoted the article; he had not thought he needed to also provide a copy. He had exercised editorial selection in quoting from the article.

Lewis said that from other sources, a judge had stated in District Court that investigation was ongoing and District Judge Mehta had said other prosecutions against persons other than Manning were being considered. Why had Feldstein not included this information in his report? Assange’s lawyer Barry J Pollock had stated “they are not informing us they are closing the investigation or have decided not to charge.” Would it not be fair to add that to his report?

Prof Feldstein replied that Assange and his lawyers would be hard to convince that the prosecution had been dropped, but we know that no new information had in 2015/16 been brought to the Grand Jury.

Lewis stated that in 2016 Assange had offered to go to the United States to face charges if Manning were granted clemency. Does this not show the Obama administration was intending to charge? Should this not have been in his report? Feldstein replied no, because it was irrelevant. Assange was not in a position to know what Obama’s Justice Department was doing. The subsequent testimony of Obama Justice Department insiders was much more valuable.

Lewis asked if the Obama administration had decided not to prosecute, why would they keep the Grand Jury open? Feldstein replied this happened very frequently. It could be for many reasons, including to collect information on alleged co-conspirators, or simply in the hope of further new evidence.

Lewis suggested that the most Feldstein might honestly say was that the Obama administration had intimated that they would not prosecute for passively obtained information, but that did not extend to a decision not to prosecute for hacking with Chelsea Manning. “If Obama did not decide not to prosecute, and the investigation had continued into the Trump administration, then your diatribe against Trump becomes otiose.”

Lewis continued that the “New York Times problem” did not exist because the NYT had only published information it had passively received. Unlike Assange, the NYT had not conspired with Manning illegally to obtain the documents. Would Prof Feldstein agree that the First Amendment did not defend a journalist against a burglary or theft charge? Feldstein replied that a journalist is not above the law. Lewis then asked Feldstein whether a journalist had a right to “steal or unlawfully obtain information” or “to hack a computer to obtain information.” Each time Feldstein replied “no”.

Lewis then asked if Feldstein accepted that Bradley (sic) Manning had committed a crime. Feldstein replied “yes”. Lewis then asked “If Assange aided and abetted, consulted or procured or entered into a conspiracy with Bradley Manning, has he not committed a crime?” Feldstein said that would depend on the “sticky details.”

Lewis then restated that there was no allegation that the NYT entered into a conspiracy with Bradley Manning, only Julian Assange. On the indictment, only counts 15, 16 and 17 related to publishing and these only to publishing of unredacted documents. The New York Times, Guardian and Washington Post had united in condemnation of the publication by Wikileaks of unredacted cables containing names. Lewis then read out again the same quote from the Leigh/Harding book he had put to Stafford Smith, stating that Julian Assange had said the Afghan informants would deserve their fate.

Lewis asked: “Would a responsible journalist publish unredacted names of an informant knowing he is in danger when it is unnecessary to do so for the purpose of the story”. Prof Feldstein replied “no”. Lewis then went on to list examples of information it might be proper for government to keep secret, such as “troop movements in war, nuclear codes, material that would harm an individual” and asked if Feldstein agreed these were legitimate secrets. Feldstein replied “yes”.

Lewis then asked rhetorically whether it was not more fair to allow a US jury to be the judge of harm. He then asked Feldstein: “You say in your report that this is a political prosecution. But a Grand jury has supported the prosecution. Do you accept that there is an evidentiary basis for the prosecution?”. Feldstein replied “A grand jury has made that decision. I don’t know that it is true.” Lewis then read out a statement from US Assistant Attorney Kromberg that prosecution decisions are taken by independent prosecutors who follow a code that precludes political factors. He asked Feldstein if he agreed that independent prosecutors were a strong bulwark against political prosecution.
Feldstein replied “That is a naive view.”

Lewis then asked whether Feldstein was claiming that President Trump or his Attorney General had ordered this prosecution without a factual basis. The professor replied he had no doubt it was a political prosecution, this was based on 1) its unprecedented nature 2) the rejection of prosecution by Obama but decision to prosecute now with no new evidence 3) the extraordinary wide framing of the charges 4) President Trump’s narrative of hostility to the press. “It’s political”.

Mark Summers then re-examined Professor Feldstein. He said that Lewis had suggested that Assange was complicit in Manning obtaining classified information but the New York Times was not. Is it your understanding that to seek to help an official leaker is a crime? Professor Feldstein replied “No, absolutely not”.
“Do journalists ask for classified information?”
“Yes.”
“Do journalists solicit such information?”
“Yes.”
“Are you aware of any kind of previous prosecution for this kind of activity.”
“No. Absolutely not.”
“Could you predict it would be criminalised?”
“No, and it is very dangerous.”

Summers than asked Professor Feldstein what the New York Times had done to get the Pentagon Papers from Daniel Ellsberg. Feldstein replied they were very active in soliciting the papers. They had a key to the room that held the documents and had helped to copy them. They had played an active not a passive role. “Journalists are not passive stenographers.”

Summers reminded Prof Feldstein that he had been asked about hacking. What if the purpose of the hacking was not to obtain the information, but to disguise the source? This was the specific allegation spelt out in Kromberg memorandum 4 paras 11 to 14. Professor Feldstein replied that protecting sources is an obligation. Journalists work closely with, conspire with, cajole, encourage, direct and protect their sources. That is journalism.

Summers asked Prof Feldstein if he maintained his caution in accepting government claims of harm. Feldstein replied absolutely. The government track record demanded caution. Summers pointed out that there is an act which specifically makes illegal the naming of intelligence sources, the Intelligence Identities Protection Act. Prof Feldstein said this was true; the fact that the charge was not brought under the IIPA proves that it is not true that the prosecution is intended to be limited to revealing of identities and in fact it will be much broader.

Summers concluded by saying that Lewis had stated that Wikileaks had released the unredacted cables in a mass publication. Would it change the professor’s assessment if the material had already been released by others. Prof Feldstein said his answers were not intended to indicate he accepted the government narrative.

Edward Fitzgerald QC then took over for the defence. He put to Prof Feldstein that there had been no prosecution of Assange when Manning was prosecuted, and Obama had given Manning clemency. These were significant facts. Feldstein agreed.

Fitzgerald then said that the Washington Post article from which Lewis complained Feldstein had quoted selectively, contained a great deal more material Feldstein had also not quoted but which strongly supported his case, for example “Officials told the Washington Post last week that there is no sealed indictment and the Department had “all but concluded that they would not bring a charge.”” It further stated that when Snowden was charged, Greenwald was not, and the same approach was followed with Manning/Assange. So overall the article confirmed Feldstein’s thesis, as contained in his report. Feldstein agreed. There was then discussion of other material that could have been included to support his thesis.

Fitzgerald concluded by asking if Feldstein were familiar with the phrase “a grand jury would indict a ham sandwich”. Feldstein replied it was common parlance and indicated the common view that grand juries were malleable and almost always did what prosecutors asked them to do. There was a great deal of academic material on this point.

THOUGHTS

Thus concluded another extraordinary day. Once again, there were just five of us in the public gallery (in 42 seats) and the six allowed in the overflow video gallery in court 9 was reduced to three, as three seats were reserved by the court for “VIPs” who did not show up.

The cross-examinations showed the weakness of the thirty minute guillotine adopted by Baraitser, with really interesting defence testimony cut short, and then unlimited time allowed to Lewis for his cross examination. This was particularly pernicious in the evidence of Mark Feldstein. In James Lewis’ extraordinary cross-examination of Feldstein, Lewis spoke between five and ten times as many words as the actual witness. Some of Lewis’s “questions” went on for many minutes, contained huge passages of quote and often were phrased in convoluted double negative. Thrice Feldstein refused to reply on grounds he could not make out where the question lay. With the defence initial statement of the evidence limited to half an hour, Lewis’s cross examination approached two hours, a good 80% of which was Lewis speaking.

Feldstein was browbeaten by Lewis and plainly believed that when Lewis told him to answer in very brief and concise answers, Lewis had the authority to instruct that. In fact Lewis is not the judge and it was supposed to be Feldstein’s evidence, not Lewis’s. Baraitser failed to protect Feldstein or to explain his right to frame his own answers, when that was very obviously a necessary course for her to take.

Today we had two expert witnesses, who had both submitted lengthy written testimony relating to one indictment, which was now being examined in relation to a new superseding indictment, exchanged at the last minute, and which neither of them had ever seen. Both specifically stated they had not seen the new indictment. Furthermore this new superseding indictment had been specifically prepared by the prosecution with the benefit of having heard the defence arguments and seen much of the defence evidence, in order to get round the fact that the indictment on which the hearing started was obviously failing.

On top of which the defence had been refused an adjournment to prepare their defence against the new indictment, which would have enabled these and other witnesses to see the superseding indictment, adjust their evidence accordingly and be prepared to be cross-examined in relation to it.

Clive Stafford Smith testified today that in 2001 he would not have believed the outrageous crimes that were to be perpetrated by the US government. I am obliged to say that I simply cannot believe the blatant abuse of process that is unfolding before my eyes in this courtroom.

show trial of Julian Assange

The Assange Hearing Day 6

Your Man in the Public GalleryBy Craig John Murray

first published on September 08, 2020 “Information Clearing House

I went to the Old Bailey today expecting to be awed by the majesty of the law, and left revolted by the sordid administration of injustice.

There is a romance which attaches to the Old Bailey. The name of course means fortified enclosure and it occupies a millennia old footprint on the edge of London’s ancient city wall. It is the site of the medieval Newgate Prison, and formal trials have taken place at the Old Bailey for at least 500 years, numbering in the hundreds of thousands. For the majority of that time, those convicted even of minor offences of theft were taken out and executed in the alleyway outside. It is believed that hundreds, perhaps thousands, lie buried under the pavements.

The hefty Gothic architecture of the current grand building dates back no further than 1905, and round the back and sides of that is wrapped some horrible cheap utility building from the 1930’s. It was through a tunnelled entrance into this portion that five of us, Julian’s nominated family and friends, made our nervous way this morning. We were shown to Court 10 up many stairs that seemed like the back entrance to a particularly unloved works canteen. Tiles were chipped, walls were filthy and flakes of paint hung down from crumbling ceilings. Only the security cameras watching us were new – so new, in fact, that little piles of plaster and brick dust lay under each.

Court 10 appeared to be a fairly bright and open modern box, with pleasant light woodwork, jammed as a mezzanine inside a great vault of the old building. A massive arch intruded incongruously into the space and was obviously damp, sheets of delaminating white paint drooping down from it like flags of forlorn surrender. The dock in which Julian would be held still had a bulletproof glass screen in front, like Belmarsh, but it was not boxed in. There was no top to the screen, no low ceiling, so sound could flow freely over and Julian seemed much more in the court. It also had many more and wider slits than the notorious Belmarsh Box, and Julian was able to communicate quite readily and freely through them with his lawyers, which this time he was not prevented from doing.

Rather to our surprise, nobody else was allowed into the public gallery of court 10 but us five. Others like John Pilger and Kristin Hrafnsson, editor in chief of Wikileaks, were shunted into the adjacent court 9 where a very small number were permitted to squint at a tiny screen, on which the sound was so inaudible John Pilger simply left. Many others who had expected to attend, such as Amnesty International and Reporters Without Borders, were simply excluded, as were MPs from the German federal parliament (both the German MPs and Reporters Without Borders at least later got access to the inadequate video following strong representations from the German Embassy).

The reason given that only five of us were allowed in the public gallery of some 40 seats was social distancing; except we were allowed to all sit together in consecutive seats in the front row. The two rows behind us remained completely empty.

To finish scene setting, Julian himself looked tidy and well groomed and dressed, and appeared to have regained a little lost weight, but with a definite unhealthy puffiness about his features. In the morning he appeared disengaged and disoriented rather as he had at Belmarsh, but in the afternoon he perked up and was very much engaged with his defence team, interacting as normally as could be expected in these circumstances.

Proceedings started with formalities related to Julian’s release on the old extradition warrant and re-arrest under the new warrant, which had taken place this morning. Defence and prosecution both agreed that the points they had already argued on the ban on extradition for political offences were not affected by the superseding indictment.

Magistrate Baraitser then made a statement about access to the court by remote hearing, by which she meant online. She stated that a number of access details had been sent out by mistake by the court without her agreement. She had therefore revoked their access permissions.

As she spoke, we in the court had no idea what had happened, but outside some consternation was underway in that the online access of Amnesty International, of Reporters without Borders, of John Pilger and of forty others had been shut down. As these people were neither permitted to attend the court nor observe online, this was causing some consternation.

Baraitser went on to say that it was important that the hearing was public, but she should only agree remote access where it was “in the interests of justice”, and having considered it she had decided it was not. She explained this by stating that the public could normally observe from within the courtroom, where she could control their behaviour. But if they had remote access, she could not control their behaviour and this was not in the “interests of justice”.

Baraitser did not expand on what uncontrolled behaviour she anticipated from those viewing via the internet. It is certainly true that an observer from Amnesty sitting at home might be in their underwear, might be humming the complete soundtrack to Mamma Mia, or might fart loudly. Precisely why this would damage “the interests of justice” we are still left to ponder, with no further help from the magistrate. But evidently the interests of justice were, in her view, best served if almost nobody could examine the “justice” too closely.

The next “housekeeping issue” to be addressed was how witnesses should be heard. The defence had called numerous witnesses, and each had lodged a written statement. The prosecution and Baraitser both suggested that, having given their evidence in writing, there was no need for defence witnesses to give that evidence orally in open court. It would be much quicker to go straight to cross-examination by the prosecution.

For the defence, Edward Fitzgerald QC countered that justice should be seen to be done by the public. The public should be able to hear the defence evidence before hearing the cross-examination. It would also enable Julian Assange to hear the evidence summarised, which was important for him to follow the case given his lack of extended access to legal papers while in Belmarsh prison.Baraitser stated there could not be any need for evidence submitted to her in writing to be repeated orally. For the defence, Mark Summers QC was not prepared to drop it and tension notably rose in the court. Summers stated it was normal practice for there to be “an orderly and rational exposition of the evidence”. For the prosecution, James Lewis QC denied this, saying it was not normal procedure.

Baraitser stated she could not see why witnesses should be scheduled an one hour forty five minutes each, which was too long. Lewis agreed. He also added that the prosecution does not accept that the defence’s expert witnesses are expert witnesses. A Professor of journalism telling about newspaper coverage did not count. An expert witness should only be giving evidence on a technical point the court was otherwise unqualified to consider. Lewis also objected that in giving evidence orally, defence witnesses might state new facts to which the Crown had not had time to react. Baraitser noted that the written defence statements were published online, so they were available to the public.

Edward Fitzgerald QC stood up to speak again, and Baraitser addressed him in a quite extraordinary tone of contempt. What she said exactly was: “I have given you every opportunity. Is there anything else, really, that you want to say”, the word “really” being very heavily emphasised and sarcastic. Fitzgerald refused to be sat down, and he stated that the current case featured “substantial and novel issues going to fundamental questions of human rights.” It was important the evidence was given in public. It also gave the witnesses a chance to emphasise the key points of their evidence and where they placed most weight.

Baraitser called a brief recess while she considered judgement on this issue, and then returned. She found against the defence witnesses giving their evidence in open court, but accepted that each witness should be allowed up to half an hour of being led by the defence lawyers, to enable them to orient themselves and reacquaint with their evidence before cross-examination.

This half hour for each witness represented something of a compromise, in that at least the basic evidence of each defence witness would be heard by the court and the public (insofar as the public was allowed to hear anything). But the idea that a standard half hour guillotine is sensible for all witnesses, whether they are testifying to a single fact or to developments over years, is plainly absurd. What came over most strongly from this question was the desire of both judge and prosecution to railroad through the extradition with as little of the case against it getting a public airing as possible.

As the judge adjourned for a short break we thought these questions had now been addressed and the rest of the day would be calmer. We could not have been more wrong.The court resumed with a new defence application, led by Mark Summers QC, about the new charges from the US governments new superseding indictment. Summers took the court back over the history of this extradition hearing. The first indictment had been drawn up in March of 2018. In January 2019 a provisional request for extradition had been made, which had been implemented in April of 2019 on Assange’s removal from the Embassy. In June 2019 this was replaced by the full request with a new, second indictment which had been the basis of these proceedings before today. A whole series of hearings had taken place on the basis of that second indictment.

The new superseding indictment dated from 20 June 2020. In February and May 2020 the US government had allowed hearings to go ahead on the basis of the second indictment, giving no warning, even though they must by that stage have known the new superseding indictment was coming. They had given neither explanation nor apology for this.

The defence had not been properly informed of the superseding indictment, and indeed had learnt of its existence only through a US government press release on 20 June. It had not finally been officially served in these proceedings until 29 July, just six weeks ago. At first, it had not been clear how the superseding indictment would affect the charges, as the US government was briefing it made no difference but just gave additional detail. But on 21 August 2020, not before, it finally became clear in new US government submissions that the charges themselves had been changed.

There were now new charges that were standalone and did not depend on the earlier allegations. Even if the 18 Manning related charges were rejected, these new allegations could still form grounds for extradition. These new allegations included encouraging the stealing of data from a bank and from the government of Iceland, passing information on tracking police vehicles, and hacking the computers both of individuals and of a security company.

“How much of this newly alleged material is criminal is anybody’s guess”, stated Summers, going on to explain that it was not at all clear that an Australian giving advice from outwith Iceland to someone in Iceland on how to crack a code, was actually criminal if it occurred in the UK. This was even without considering the test of dual criminality in the US also, which had to be passed before the conduct was subject to extradition.

It was unthinkable that allegations of this magnitude would be the subject of a Part 2 extradition hearing within six weeks if they were submitted as a new case. Plainly that did not give the defence time to prepare, or to line up witnesses to these new charges. Among the issues relating to these new charges the defence would wish to address, were that some were not criminal, some were out of time limitation, some had already been charged in other fora (including Southwark Crown Court and courts in the USA).

There were also important questions to be asked about the origins of some of these charges and the dubious nature of the witnesses. In particular the witness identified as “teenager” was the same person identified as “Iceland 1” in the previous indictment. That indictment had contained a “health warning” over this witness given by the US Department of Justice. This new indictment removed that warning. But the fact was, this witness is Sigurdur Thordarson, who had been convicted in Iceland in relation to these events of fraud, theft, stealing Wikileaks money and material and impersonating Julian Assange.

The indictment did not state that the FBI had been “kicked out of Iceland for trying to use Thordarson to frame Assange”, stated Summers baldly.

Summers said all these matters should be ventilated in these hearings if the new charges were to be heard, but the defence simply did not have time to prepare its answers or its witnesses in the brief six weeks it had since receiving them, even setting aside the extreme problems of contact with Assange in the conditions in which he was being held in Belmarsh prison.

The defence would plainly need time to prepare answers to these new charges, but it would plainly be unfair to keep Assange in jail for the months that would take. The defence therefore suggested that these new charges should be excised from the conduct to be considered by the court, and they should go ahead with the evidence on criminal behaviour confined to what conduct had previously been alleged.

Summers argued it was “entirely unfair” to add what were in law new and separate criminal allegations, at short notice and “entirely without warning and not giving the defence time to respond to it. What is happening here is abnormal, unfair and liable to create real injustice if allowed to continue.”

The arguments submitted by the prosecution now rested on these brand new allegations. For example, the prosecution now countered the arguments on the rights of whistleblowers and the necessity of revealing war crimes by stating that there can have been no such necessity to hack into a bank in Iceland.

Summers concluded that the “case should be confined to that conduct which the American government had seen fit to allege in the eighteen months of the case” before their second new indictment.

Replying to Summers for the prosecution, Joel Smith QC replied that the judge was obliged by the statute to consider the new charges and could not excise them. “If there is nothing proper about the restitution of a new extradition request after a failed request, there is nothing improper in a superseding indictment before the first request had failed.” Under the Extradition Act the court must decide only if the offence is an extraditable offence and the conduct alleged meets the dual criminality test. The court has no other role and no jurisdiction to excise part of the request.

Smith stated that all the authorities (precedents) were of charges being excised from a case to allow extradition to go ahead on the basis of the remaining sound charges, and those charges which had been excised were only on the basis of double jeopardy. There was no example of charges being excised to prevent an extradition. And the decision to excise charges had only ever been taken after the conduct alleged had been examined by the court. There was no example of alleged conduct not being considered by the court. The defendant could seek extra time if needed but the new allegations must be examined.

Summers replied that Smith was “wrong, wrong, wrong, and wrong”. “We are not saying that you can never submit a new indictment, but you cannot do it six weeks before the substantive hearing.” The impact of what Smith had said amounted to no more than “Ha ha this is what we are doing and you can’t stop us.” A substantive last minute change had been made with no explanation and no apology. It could not be the case, as Smith alleged, that a power existed to excise charges in fairness to the prosecution, but no power existed to excise charges in fairness to the defence.

Immediately Summers sat down, Baraitser gave her judgement on this point. As so often in this hearing, it was a pre-written judgement. She read it from a laptop she had brought into the courtroom with her, and she had made no alterations to that document as Summers and Smith had argued the case in front of her.

Baraitser stated that she had been asked as a preliminary move to excise from the case certain conduct alleged. Mr Summers had described the receipt of new allegations as extraordinary. However “I offered the defence the opportunity to adjourn the case” to give them time to prepare against the new allegations. “I considered of course that Mr Assange was in custody. I hear that Mr Summers believes this is fundamental unfairness”. But “the argument that we haven’t got the time, should be remedied by asking for the time.”

Mr Summers had raised issues of dual criminality and abuse of process; there was nothing preventing him for raising these arguments in the context of considering the request as now presented.

Baraitser simply ignored the argument that while there was indeed “nothing to prevent” the defence from answering the new allegations as each was considered, they had been given no time adequately to prepare. Having read out her pre-prepared judgement to proceed on the basis of the new superseding indictment, Baraitser adjourned the court for lunch.

At the end of the day I had the opportunity to speak to an extremely distinguished and well-known lawyer on the subject of Baraitser bringing pre-written judgements into court, prepared before she had heard the lawyers argue the case before her. I understood she already had seen the outline written arguments, but surely this was wrong. What was the point in the lawyers arguing for hours if the judgement was pre-written? What I really wanted to know was how far this was normal practice.

The lawyer replied to me that it absolutely was not normal practice, it was totally outrageous. In a long and distinguished career, this lawyer had very occasionally seen it done, even in the High Court, but there was always some effort to disguise the fact, perhaps by inserting some reference to points made orally in the courtroom. Baraitser was just blatant. The question was, of course, whether it was her own pre-written judgement she was reading out, or something she had been given from on high.

This was a pretty shocking morning. The guillotining of defence witnesses to hustle the case through, indeed the attempt to ensure their evidence was not spoken in court except those parts which the prosecution saw fit to attack in cross-examination, had been breathtaking. The effort by the defence to excise the last minute superseding indictment had been a fundamental point disposed of summarily. Yet again, Baraitser’s demeanour and very language made little attempt to disguise a hostility to the defence.

We were for the second time in the day in a break thinking that events must now calm down and get less dramatic. Again we were wrong.

Court resumed forty minutes late after lunch as various procedural wrangles were addressed behind closed doors. As the court resumed, Mark Summers for the defence stood up with a bombshell.

Summers said that the defence “recognised” the judgement Baraitser had just made – a very careful choice of word, as opposed to “respected” which might seem more natural. As she had ruled that the remedy to lack of time was more time, the defence was applying for an adjournment to enable them to prepare the answers to the new charges. They did not do this lightly, as Mr Assange would continue in prison in very difficult conditions during the adjournment.

Summers said the defence was simply not in a position to gather the evidence to respond to the new charges in a few short weeks, a situation made even worse by Covid restrictions. It was true that on 14 August Baraitser had offered an adjournment and on 21 August they had refused the offer. But in that period of time, Mr Assange had not had access to the new charges and they had not fully realised the extent to which these were a standalone new case. To this date, Assange had still not received the new prosecution Opening Note in prison, which was a crucial document in setting out the significance of the new charges.

Baraitser pointedly asked whether the defence could speak to Assange in prison by telephone. Summers replied yes, but these were extremely short conversations. They could not phone Mr Assange; he could only call out very briefly on the prison payphone to somebody’s mobile, and the rest of the team would have to try to gather round to listen. It was not possible in these very brief discussions adequately to expound complex material. Between 14 and 21 August they had been able to have only two such very short phone calls. The defence could only send documents to Mr Assange through the post to the prison; he was not always given them, or allowed to keep them.

Baraitser asked how long an adjournment was being requested. Summers replied until January.

For the US government, James Lewis QC replied that more scrutiny was needed of this request. The new matters in the indictment were purely criminal. They do not affect the arguments about the political nature of the case, or affect most of the witnesses. If more time were granted, “with the history of this case, we will just be presented with a sleigh of other material which will have no bearing on the small expansion of count 2”.

Baraitser adjourned the court “for ten minutes” while she went out to consider her judgement. In fact she took much longer. When she returned she looked peculiarly strained.

Baraitser ruled that on 14 August she had given the defence the opportunity to apply for an adjournment, and given them seven days to decide. On 21 August the defence had replied they did not want an adjournment. They had not replied that they had insufficient time to consider. Even today the defence had not applied to adjourn but rather had applied to excise charges. They “cannot have been surprised by my decision” against that application. Therefore they must have been prepared to proceed with the hearing. Their objections were not based on new circumstance. The conditions of Assange in Belmarsh had not changed since 21 August. They had therefore missed their chance and the motion to adjourn was refused.

The courtroom atmosphere was now highly charged. Having in the morning refused to cut out the superseding indictment on the grounds that the remedy for lack of time should be more time, Baraitser was now refusing to give more time. The defence had called her bluff; the state had apparently been confident that the effective solitary confinement in Belmarsh was so terrible that Assange would not request more time. I rather suspect that Julian was himself bluffing, and made the call at lunchtime to request more time in the full expectation that it would be refused, and the rank hypocrisy of the proceedings exposed.

previously blogged about how the procedural trickery of the superseding indictment being used to replace the failing second indictment – as Smith said for the prosecution “before it failed” – was something that sickened the soul. Today in the courtroom you could smell the sulphur.

Well, yet again we were left with the feeling that matters must now get less exciting. This time we were right and they became instead excruciatingly banal. We finally moved on to the first witness, Professor Mark Feldstein, giving evidence to the court by videolink for the USA. It was not Professor Feldstein’s fault the day finished in confused anti-climax. The court was unable to make the video technology work. For ten broken minutes out of about forty Feldstein was briefly able to give evidence, and even this was completely unsatisfactory as he and Mark Summers were repeatedly speaking over each other on the link.

Professor Feldstein’s evidence will resume tomorrow (now in fact today) and I think rather than split it I shall give the full account then. Meantime you can see these excellent summaries from Kevin Gosztola or the morning and afternoon reports from James Doleman. In fact, I should be grateful if you did, so you can see that I am neither inventing nor exaggerating the facts of these startling events.

If you asked me to sum up today in a word, that word would undoubtedly be “railroaded”. It was all about pushing through the hearing as quickly as possible and with as little public exposure as possible to what is happening. Access denied, adjournment denied, exposition of defence evidence denied, removal of superseding indictment charges denied. The prosecution was plainly failing in that week back in Woolwich in February, which seems like an age ago. It has now been given a new boost.

How the defence will deal with the new charges we shall see. It seems impossible that they can do this without calling new witnesses to address the new facts. But the witness lists had already been finalised on the basis of the old charges. That the defence should be forced to proceed with the wrong witnesses seems crazy, but frankly, I am well past being surprised by anything in this fake process.


Reduced

CBC’s Joe Sacco issued an apology for using the “word” Palestine.  It must take a lot of courage – or threat of losing ones employment perhaps? – to swallow that indigestible pill.  With all the evidence, one must be in perfect insensibility to call Palestine a “word”.

Anyone with an ounce of decency, revulsion of settler colonial history – including our own Canadian  history – and/or advocacy for human rights should wince at this apology.  After all we are all settlers flourishing upon another people’s lands.  Our Prime Ministers have belatedly shown some remorse, offered reparations, and acknowledged the wrong doing the country’s forefathers.  Yet it is to my personal bafflement that Joe Sacco and his employers at the CBC, are totally at ease with reducing a country that has existed for thousands of years, its people, history, culture and religious character to a measly “word”.

On the other side, no apologies are offered to Palestinian children who languish in prisons suspected of throwing stones.  No remorse or regret towards persecuted poets, doctors, medics killed in the field, teachers, parents, political prisoners, young rappers.  No sorrow is allowed to be felt, let alone expressed, when 17 year old Mohamed Sulaiman Alhaddad, or Iyad Hallaq, the autistic 32 year old unarmed man with the mind of a 8 year old is shot dead for being who they are – Palestinians.  No fans at soccer matches, who chant at volumes that reverberate throughout an entire stadium “death to Arabs” will be reigned in.  Not one person from the upper echelons to those below, has asked for forgiveness for demolishing a COVID-19 testing centre , spray painting the Star of David on cars, or olive groves and livestock being burnt to a crisp.  No one will read, speak or debate about infants, the elderly, the young, all Palestinian deaths and injuries ushered in by the “most moral” occupation of our time!  The occupation is unapologetic for bombing Gaza for the past 17 days.  The occupation is unapologetic, period.  Yet the use of the “word” Palestine is apologized for, in Canada.

To present some fairness, the cringe worthy video “Feeding a Bedouin”, that aught to bring a sob to ones throat, did get an apology – 5 years after the fact it was made.  It took 5 years for Roy Boy to realize that this deep seeded racism against Palestinians was and is utterly wrong.  Perhaps if this video was not brought to the light of day, this apology would not have been made?

The fact that Palestine was articulated and placed alongside other devastated nations as Iraq and Syria is considered a blunder in itself.  Palestine, in the eyes of the occupation, and all those who profess undying support, does not exist.

Palestine is not a “word”.  ‘stiff’, ‘that’, ‘dinner’, ‘picture’, ‘sopor’ – these are words.  Palestine is a land that exists to this day under a brutal and apartheid occupation since well before 1948.  And since 1948, Palestinians live almost entire lives in prisons, go on hunger strikes, cross checkpoints daily, live in caves, are scattered in refugee camps, and live abroad.  They are a testament to, and evidence of, this place called Palestine.  They are a people who have had their land, life and liberty usurped by another people who ended up changing Palestine to the “word” ‘israel’.  As Canadians, we would be horrified at such a denigration.  It is one thing for the zionist settler occupation to try and erase physically who they mercilessly occupy.  But it is another for a foreign nation – a colonial-settler one at that – to lend any voice to the barbarity, ignorance and depreciation of Palestine being a mere “word”.

There indeed should be an apology made, and it should be made to the Palestinians.

LONG LIVE RESISTANCE.