Exberliner has a digital seat inside London’s Old Bailey, where Julian Assange is fighting his extradition to the US. Here’s a recap of the last week’s hearings, as remotely observed from our Mitte office.
As the saying goes, “justice must be seen to be done.” Due to social distancing limitations in light of COVID-19, the court at least has a reasonable excuse this time for tightly restricting how many eyes may observe this potentially groundbreaking case in person. Unfortunately the court rejected a number of observer applications that had previously been approved, because the judge herself had not personally reviewed them. The rejections included WikiLeaks acting editor-in-chief Kristinn Hrafnsson (initially), John Pilger, members of parliament from half a dozen European countries, Amnesty International, Norsk PEN, and numerous other journalists or civil society NGO representatives. Reporters Without Borders has also been frustrated in their attempts to access the court and deliver a petition to the British government. Exberliner was admitted – to our own surprise – and so we’re watching every day from 11:00 to 17:00 (10:00 to 16:00 London time). (Here’s why we at EXB give a shit about the Assange trial.)
The hearings are presided over by District Judge Vanessa Baraitser, herself supervised by Judge Emma Arbuthnot. The prosecution team representing the U.S. government is staffed by James Lewis QC, Clair Dobbin, and Joel Smith. The defence team representing Assange includes solicitor Gareth Pierce, who sits in the back of the courtroom; barristers Mark Summers QC and Edward Fitzgerald QC occupy the front defence bench. A limited number of observers are allowed in the jury box and public gallery directly in the courtroom, and there is a secondary overflow courtroom with a video feed for local media.
There are still improvements to be made when it comes to their remote access systems. This week, the live video feed provided by the Old Bailey to select members of the media and civil rights advocacy groups has been rife with technical issues. Court was dismissed early on the first day after they were unable to admit the first defence witness. Oddly, we virtual court participants could see and hear Feldstein – flanked by his impressive literary collection – perfectly! Apparently, witnesses, prosecutors, even lawyers for the defence are not only using the same video conferencing system, but popping in through the same remote viewing rooms as members of the press and in at least one case, accidentally. Luckily, there have been no more subsequent issues with witnesses connecting. Though on the fourth day, due to a possible case of coronavirus, the prosecution briefly attended remotely, and attempted to discuss the schedule amid their various audio, video and battery problems before adjourning back to their own apartments.
The live video feed provided by the Old Bailey to select members of the media and civil rights advocacy groups has been rife with technical issues.
Meanwhile, in the actual court, highly paid lawyers on both sides struggle with the most basic microphone technology, which sometimes makes it easier to hear whispering and shuffling papers than actual testimony.
While we would love to write more about this, both Judge Baraitser and our various hosts have sternly warned all court participants (including those of us who can virtually attend in our pajamas) that capturing or recording any portion of the proceedings would be a criminal offence. So when we tell you that Assange is forced to sit silently for hours, separated from his legal team, under guard in a locked glass box at the rear area of the court room – and be threatened with eviction if he dare speak out at his own trial – you will just have to trust us.
Monday, Day One: Julian Assange re-arrested
- Julian Assange was re-arrested before the start of court. His team, led by Mark Summers QC and Edward Fitzgerald QC, were served with the third superseding indictment shortly after this arrest.
- The judge, Vanessa Baraitser, supervised by Judge Emma Arbuthnot, accepted the prosecution’s argument from Joel Smith and refused to afford the defence more time to prepare for this new indictment, or to excise the new conduct from consideration, which had only just been properly served on all interested parties.
- Mark Feldstein, journalism historian and professor at the University of Maryland, was scheduled as the first expert witness, but due to technological issues the court eventually adjourned without him.
- At some point, the witness list was published via Cryptome.
Tuesday, Day Two: “This is nonsense” (Julian Assange)
- Clive Stafford-Smith, the founder of Reprieve (a nonprofit organisation of lawyers and investigators who pursue legal action against human rights abuses), was the defence’s second expert witness and spoke about the impact WikiLeaks publications had on their litigation of drone strikes in Pakistan. He clearly stated that the legal cases would have been significantly “different and difficult” without the release of diplomatic cables.
- Feldstein testified, followed by cross-examination by James Lewis QC for the prosecution. Feldstein argued that it is easy to assert but almost impossible to refute allegations of “potential harm” to informants of the U.S. government, and more often than not this claim is simply a strategy to hide wrongdoing.
- When Lewis argued that Assange was not being charged for publishing, Assange said, “This is nonsense” from his glass cage in the rear of the courtroom and received a warning from the judge that if there were further interruptions, he could be evicted.
- Feldstein noted that the prosecution could have narrowed the charges to the exposure of confidential sources. Instead, the indictment’s scope was broad enough to affect common practices of journalism, including the passive receipt of classified information.
- At some point, the U.S. prosecution bundle for defence witnesses was published via Cryptome.
Wednesday, Day Three: “[His political views] have made him the subject of targeting” (Rogers)
- Paul Rogers, an Emeritus Professor of Peace Studies and political science at Bradford University, was the third expert witness. Quoting from Assange’s 2006 essay “Conspiracy as Governance” and other writings or speeches, Rogers identified what he considered to be Assange’s core beliefs. He highlighted human rights, transparency, accountability and a non-conventional “political view.” He asserted that Assange had valid reasons to seek refugee status and perceive the case against him as politically motivated rather than arising out of genuine evidence-based concerns of criminality. Cross-examination by Lewis countered that a politically motivated prosecution was not possible because, in short, the rules of conduct for the American prosecutors said so. With this twisted logic, the US/UK extradition treaty might as well not have a blanket ban on extraditions for political offences, since the rules say this should never happen.
- Trevor Timm, co-founder and the executive director of the Freedom of the Press Foundation, was the fourth expert witness. Having graduated from law school in 2011, Timm examined the case from both a journalistic and legal perspective. He argued that the ethical question of who constitutes a “responsible journalist” is best left in the editorial room rather than the court. He believed that this case represented “a fig leaf” that would bring a mountain of future cases against journalists everywhere.
Thursday, Day Four: “We must assume she has it” (Summers)
- Proceedings were off to a late-start without explanation, until roughly around 10:30 GMT, when rumours of cancellation due to a coronavirus outbreak in the court surfaced. It came to be understood that the husband of the junior counsel, Clair Dobbin, had coronavirus-like symptoms.
- A few of the lawyers who showed up in person wore masks. Very few of those attending court had previously done so.
- Lewis and Smith from the prosecution team joined remotely. While attempting rather unsuccessfully to establish communication with the court, they discussed how it would be difficult to cross-examine expert witnesses with these video and audio issues.
- Defence and prosecution requested adjournment until the test results of the possibly infected party would be available. The judge ordered that court be adjourned until Monday at 10am GMT, and noted that she was not adjourning in the interests of justice but health and safety.
- The test results were shared on Friday afternoon: negative for Covid-19.
The strategy of the prosecution appears to focus on proving that the defence witnesses are not neutral or experts in their field, making an exception for medical professionals. Lewis spends a significant portion of his cross-examination asking if the witnesses have read the requirements on giving unbiased testimony, and why they didn’t cite the affidavits of U.S. assistant attorney Gordon Kromberg (page 96-249) in their reports. When addressing the testimony and expertise of Stafford-Smith and Feldstein, he described their opinions of a “war on journalism” as a “diatribe” against President Trump.
According to Craig Murray, a former British diplomat who has been attending from the public gallery, the judge appears to be reading from pre-written statements.
Join us this week for further coverage of Assange’s extradition trial.