Craig’s bombshell during Assange trial
Your Man in the Public Gallery: Assange Hearing Day 10 - 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 https://t.co/J4PT950mHe
— Craig Murray (@CraigMurrayOrg) September 16, 2020
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?
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.
Read how the rest of the chit chat went.
Kevin Gosztola’s coverage of Daniel Ellsberg
Opponents of WikiLeaks founder Julian Assange often hold up Pentagon Papers whistleblower Daniel Ellsberg as an example of someone who was responsible for a good leak. They insist WikiLeaks is not like the Pentagon Papers because supposedly Assange was reckless with sensitive documents.
On the seventh day of an extradition trial against Assange, Ellsberg dismantled this false narrative and outlined for a British magistrate court why Assange would not receive a fair trial in the United States.
James Lewis, a prosecutor from the Crown Prosecution Service who represents the U.S. government, told Ellsberg, "When you published the Pentagon Papers, you were very careful in what you provided to the media."
The lead prosecutor highlighted the fact that Ellsberg withheld four volumes of the Pentagon Papers that he did not want published because they may have impacted diplomatic efforts to end the Vietnam War. However, Ellsberg's decision to withhold those volumes had nothing to do with protecting the names of U.S. intelligence sources.
As Ellsberg described for the court, the 4,000 pages of documents he disclosed to the media contained thousands of names of Americans, Vietnamese, and North Vietnamese. There was even a clandestine CIA officer, who was named.
Nowhere in the Pentagon Papers was an "adequate justification for the killing that we were doing," Ellsberg said. "I was afraid if I redacted or withheld anything at all it would be inferred I left out" the good reasons why the U.S. was pursuing the Vietnam War.
Ellsberg was concerned about revealing the name of a clandestine CIA officer, though he mentioned the individual was well-known in South Vietnam. Had he published the name of the officer today, the Intelligence Identities Protection Act could have easily been used to prosecute him. But he left it in the documents so no one could make inferences about redacted sections that may undermine what he exposed.
Like Assange, Ellsberg wanted the public to have a complete record.
This did not exactly distinguish Ellsberg from Assange so Lewis explicitly highlighted an article, "Why WikiLeaks Is Unlike The Pentagon Papers," by attorney Floyd Abrams, which he wrote for the Wall Street Journal.
Abrams was one of the attorneys who represented the New York Times in the civil case that argued the government should not be able to block the media organization from publishing the Pentagon Papers. And like Lewis, Abrams fixated on the four volumes that were kept confidential.
Ellsberg insisted Abrams was "mistaken." He never had any discussion with Ellsberg while defending the right to publish before the Supreme Court so Ellsberg said Abrams could not possibly understand his motives very well.
In the decades since the Pentagon Papers were disclosed, Ellsberg shared how he faced a "great deal" of defamation and then "neglect" to someone who was mentioned as a "clear patriot." He was used as a "foil" against new revelations from WikiLeaks, "which were supposedly very different." Such a distinction is "misleading in terms of motive and effect."