 One, welcome to CN Live, season five, episode six, Assange versus the Espionage Act. I'm Joe Laurier, the editor-in-chief of Consortium News. And I'm Elizabeth Boss. In prison, the WikiLeaks publisher, Julian Assange's case raises troubling questions about whether the U.S. Espionage Act reaches both the first and fifth amendments of the U.S. Constitution as it is applied to Assange, argues constitutional lawyer Bruce Affron. The Espionage Act criminalizes the routine of journalism, he says. It ignores the First Amendment by itself, it ignores that the First Amendment, rather by itself, carved out an exception for journalists possessing and informing the public about state secrets that reveal government crimes and corruption. The phrase relating to the national defense in the act is so broad that publication of any government document that exposes military abuses could lead to prosecution, nor does any clear meaning attached to injury to the United States or advantaged of any foreign nation, standards that could lead to conviction for publication of any government document touching on military or foreign policy, Affron says. Assange's indictment should be quashed on the ground that the Espionage Act's breathtaking overreach is an existential threat to the First Amendment freedom, he argues. For U.S. courts to do otherwise is to undermine due process and impose a vast threat to the First Amendment's guarantees of the free press. The Fifth Amendment says that no one shall be deprived of life, liberty or property without due process of law, but because of its unlimited sweep, there is virtually no defense to a violation of the Espionage Act, including a public interest defense. Affron says that one would think that the Espionage Act applies to spying for a foreign power, the logical meaning of the word Espionage, but in fact, the statute breezily punishes disclosure of any information that can cause injury to the U.S. or gives an advantage to a foreign nation. No other direction, definition or limitation appears in this law that is now being applied to Assange, Affron wrote. None of this meets even minimal standards of constitutional notice and due process as the Fifth Amendment has been interpreted. Equally important is whether the U.S. can ever prosecute a foreign journalist, such as Assange, who committed no act on U.S. soil, is not a U.S. citizen and has never lived in the United States. The government can reach across the seas to bring a foreign defendant to U.S. courts, but only if it gives unmistakable notice in the law that it plans to do so. Under these principles, the U.S. does not and cannot have jurisdiction over Julian Assange. In contrast to these longstanding principles, nothing in the Espionage Act gives notice that Congress clearly and unmistakably intended the law to have extraterritorial reach, Affron argues. These words that we've read are from an article that Bruce wrote for Consortium News last week, entitled First Amendment Authorized Assange's Possession of Classified Data. The article emerged from a discussion I had with Bruce a couple of weeks ago. We spent considerable time putting the article together. In my view, it contains several novel legal arguments in Assange's ongoing ordeal. And we're very happy today to have with us Bruce Affron to go deeper into the issues that he raises in that article. Bruce is a constitutional and civil rights lawyer who also teaches at Rutgers Law School in the U.S. state of New Jersey. As Assange continues to remain in Belmarsh prison in London awaiting the outcome of his fight to block extradition to the United States, we're also very pleased to be joined by legal and political analyst, Alexander McChurris to give us a British perspective. Gentlemen, welcome both to the program today. Bruce, let me start with you. Yeah, thank you for being here. Let me start with you, Bruce, because we read a mouthful to beginning. We wanna clarify the issues that you have raised in your article. It's getting a lot of attention at the piece that you wrote, hopefully generating a lot of discussion about Stella Assange, Julian Assange's wife and WikiLeaks that has more than five million followers. They retweeted your article. John Shipton, Assange's father, who I spoke with, said that he called the article comprehensive and very good. So there are three grounds on which you argue that the case should be challenged in a motion to dismiss to the U.S. judge in Virginia right now. And even one ground that you think could be brought up in the appeal in Britain if the High Court ever takes the case. These involve the first and fifth amendments of the U.S. Bill of Rights, as we read, as well as the issue of jurisdiction. So Bruce, can you lay out for the audience in one at a time each of these issues where you have a problem with the case against Assange on the first amendment grounds, fifth amendment grounds, and then jurisdiction and then we're gonna bring Alexander in for his comments. Thank you, Bruce. Certainly, Joe, thank you for posting this today. Really, the problem with the Espionage Act is that it could cover virtually anything the government wants it to. You know, it says any information relating to the national defense that could cause injury to the U.S. or advantage to a foreign nation. That's it. That's literally all one has to disclose to be subject to the Espionage Act. You know, people assume it says you can't disclose classified information. Actually, it says nothing about that. In fact, it was written before the whole classification system was created. It's silent on that point. Now, if it said one can't publish classified information, it would be giving at least fair notice as to what is possibly criminal under the law. So the fifth amendment in the U.S. requires that. There has to be actual notice of what the crime is, not some vague amorphous description that could ensnare anyone at any time. You know, so that's a major problem with it. The second problem is tied to that. So first of all, you don't know what it is that will cause you to be dragged into court. You know, is publishing the collateral murder vehicle video enough? Well, that's newsworthy without question. That is enough under the law. Now, they're not charging assigned specifically with that, but they're saying when he published the rules of engagement for the U.S. forces in response to the U.S. defense of the collateral murder vehicle that that violated the law. So how does one know when they're even committing a crime as the U.S. sees it? The collateral murder vehicle video is not a crime necessarily, he's not indicted for that, yet defending the publication of that by exposing the rules of engagement somehow is a crime. Now, how is a journalist, a web platform host or anyone else supposed to know when they're violating the law? That's a major problem. The second problem is tied to that. All of what is allegedly illegal under the Espionage Act is the normal work of journalists. Any journalist would publish the collateral murder vehicle video. Any journalist would publish the rules of engagement if it showed the U.S. broke its own rules of engagement or if the rules of engagement was so broad that they allow crimes to be committed. All of that is the work of journalists. So the Espionage Act criminalizes. Another point tied to this is that all those newspapers websites that are conventional media as we might say, aren't being indicted. New York Post read a story that, and it said, we, the New York Post published all this after WikiLeaks did and we're not being indicted. Why is Assange the only one being indicted? And that does go to an issue raised in the UK in the English court, namely that this could be deemed a political prosecution. Assange is being used really as the warning, the poster child to everyone else. And that selective prosecution, much has been focused on in the English case yet, it should be, I think, but that's a critical point that he is being targeted and no one else is. All those other media groups, and there's a good reason. If the U.S. targeted those media groups who would destroy the First Amendment, absolutely and completely. So the U.S. won't do that, but they wanna make an example of one man, Julian Assange. I think that meets the standard of political prosecution. So I applaud the English lawyers for raising that. I'm not sure if they focused on the selective prosecution question and they should. The final point is that this law does not reach outside the U.S. There's a whole presumption in U.S. law that Congress cannot criminalize an action abroad unless it says so. Clearly, expressly and unmistakably. And that's what the U.S. Supreme Court says is needed. Joe, I'll just give one example. The Foreign Corrupt Practices Act I mentioned in the article. That punishes bribery paid by foreign officials to other foreign officials. You might say, how does the U.S. punish that? Good question. It punishes it because the law says that if the money for the bribe passed in any way through a U.S. bank, or if the company paying the bribe trades its stock in any U.S. exchange, there is U.S. jurisdiction. So that's how Congress gets around this problem of reaching across the ocean to foreign states. None of that is in the Espionage Act. It's absolutely silent. There's not the slightest indecisive in the act that it was intended or does apply abroad. So Julian Assange logically could say, I'm entitled to publish this without fear of prosecution because there's nothing in the law that says it applies to a foreign citizen. And so that's the fundamental problem in jurisdiction. Can the U.S. even invoke the extradition treaty in the U.K.? If the charge that is made against Assange doesn't exist, if the statute doesn't allow the U.S. to prosecute a foreign person for an act done entirely outside the U.S., then how can the U.K. even entertain the extradition request? To me, this is a fundamental jurisdictional issue. Now, I don't mean to criticize English lawyers because I haven't seen all their papers. I don't know if this issue was raised. It's not a traditional issue to raise in an extradition proceeding, but this is not a traditional case. I think it should be raised. Alex can speak more to the question, but I think one could probably go back to the trial court at this stage, raise that issue because it goes to the very jurisdiction of the court. At least in the U.S., jurisdictional issues can be raised at any time. The trial courts are always open. They might reject it, say, sorry, you missed your 14 days for appeal from the Home Secretary's decision, but I think because it's jurisdictional, a trial court might very well accept that reasoning. So that's a summation of where I think the issues are. I'm not sure all of this has been addressed by the English lawyers. Again, I haven't seen all their papers. I don't mean to criticize, but if these things have not been raised, they really ought to be raised. Alexander, do you want to comment on what he said? Yeah, yes, yes, I can answer to that. I mean, one of the great problems of the hearing with the trial that took place in England, and I think this is the thing that perhaps Bruce, we should explain to Bruce, is the sheer volume of evidence and argument that took place was enormous, and it's often easy to lose sight of some of the points that were made. And I get to say in advance that the judge who tried the case is not particularly high in the English legal hierarchy, which is a serious problem in my opinion, was a serious problem in the way that that case was conducted. All three of the issues you raised, the political nature of the case, the selective nature of the prosecution, and the jurisdictional nature to my knowledge were brought up in the court before the judge. The judge, I don't think really understood them. And at times, I have to say that I was very concerned personally with the reasoning that she was following. And I'll give one example, which is the political nature of the case. Now, the legal tradition in England, and we're talking about England because there's Britain, but there's England. This is an English legal tradition, which is part of British law. The legal tradition in England is that England does not extradite people on political charges. This goes all the way back to the 19th century and beyond. There is no dispute that this is a political case. The extradition treaty between the United States and Britain says that the British, Britain will not extradite people to the United States on political charges. Now, the method we use in Britain to convert a treaty into law, usually but not always, is that we pass an act of parliament. An act of parliament was passed by the Blair government and uniquely, the first ever time, it deleted the reference to the fact that Britain would not extradite to the United States people on political charges. And the explanation that was given at the time was that this is the time of the war on terror. There might be a situation where the United States wanted to extradite people who were involved in terrorism and we couldn't interfere with that. But it's important to say that the act of parliament does not specifically say that Britain can extradite people to the United States on political charges either. It's just silent on this issue. So the judge, Judge Baritza decided that because the statute itself is silent on this question, this somehow means that the entire tradition in England, that we do not extradite people on political charges has been entirely set aside where the United States is concerned and we can extradite Assange on a political charge. I don't think that is the case at all. I don't think you can just disregard an entire tradition on the basis of the silence in a particular act. But that is an argument for the High Court and perhaps for the Supreme Court in Britain. It was not an argument, perhaps, that a judge at this level, at Baritza's level, would have been able to understand. Now, the selective prosecution, again, I don't think she really wanted to see that. The jurisdictional points clearly she wasn't prepared to see. One of the other problems that affected the course of the trial was the extreme deference that the judiciary in Britain has to an application for extradition from the United States. And since we're going to be discussing again, due process issues, I want to just give another example of this, which did not arise in the hearing before Baritza, but actually rose later during the trial, sorry, the appeal that was then brought against, by the United States against the initial decision to refuse extradition on health grounds, medical grounds. The United States, after the court refused extradition, gave all sorts of undertakings that Julian Assange would not be treated in particular ways if he was extradited to the United States. He would not be sent to certain types of prison, all of those sorts of things. Now, let's have a note after the trial was concluded, the United States did not give those undertakings to the judge during the trial, nor after the trial took place, did they go back to the judge, the original trial judge and ask that original trial judge, except, you know, these are undertakings we are prepared to give. Are you prepared to consider your decision? Well, the case then moved on to appeal. The appeal was essentially about whether or not the judge had been correct in her decision on the medical issues. The appeal court decided that she was, but they nonetheless grunted the US government's appeal because they, the appeal court decided to accept the undertakings after a hearing that lasted about a couple of hours at most of the back of an appeal on another topic at the end of the day. And to my mind, that is not how you handle a topic of that complexity. I mean, you should have several days of hearings to look at the question of undertakings from the United States. You could get experts, you could get evidence about what the practice of the United States has been in considered, you know, in applying these kinds of undertakings, it didn't happen. And again, the reason was the excessive deference of the English judiciary to any application forex tradition from the United States. And that of course expects the due process issues. It affects the jurisdictional issues as well. In fact, the judges incredibly said the mere fact that these undertakings are given by the United States is a reason to accept them because a government like the United States, a friendly country is not going to give undertakings of that nature, which it is not prepared to honor. Now, I found that staggering, I found that shocking, but I think Bruce, it gives you some idea of what Assange is up against in Britain. Bruce? Yeah, Alex, that was a very comprehensive and thoughtful discussion. Thank you. What's interesting, by the way, the two hours for the appeal would actually be an extraordinary amount of time in any US federal appeals court, where we usually get about 10 minutes per side if you can believe that. And in a more important case, about 40 minutes per side. But in Britain, in England, the tradition has been that appeals are a type of trial process almost and they can go on for days and should where there's importance. We can only look at Jeffrey Epstein's situation and recognize how little attention must have been paid to his mental health. I mean, clearly he was left, and by the way, he was a federal prisoner in, I believe he was in a state prison, but nevertheless, he was awaiting trial, but he was obviously given no true medical attention. He was inundated with media coverage about himself and he clearly, literally went deeply into mental illness. And the US gave no attention to him at all, probably none. In fact, I think his treatment was adverse. So just because the US makes this representation is really shocking. The other point is it's a political question whether those representations are to be enforced in the US court. It's not clear to me at all that the US court would see itself bound to enforce any of what the US said to the Court of Appeal in Britain, in the in England. And in fact, the question of where an inmate is housed is almost never for the court in the US. So, you're actually right, Alex, that there should be experts who will speak to this question as to to what extent is that representation even enforceable? In the US, it's what we call a political question, not a legal question. So I absolutely agree that there is no basis to rely on that. The US government historically has often mistreated people in these high positions. We only need to look at Guantanamo to see what the government was capable of doing. Obviously, if there were terrorists there, they deserved incarceration, but the treatment needed out was abominable, it was an abomination. Now, we don't do that in our normal federal prisons, but we have maximum security, supermax isolation where prisoners are often isolated literally 24 hours a day except for two breaks, for an hour, twice a week, perhaps, have almost no visitation. I'll visit it if they are behind thick glass walls. There is almost total isolation. It's become a major problem in US prisons. So Alex is absolutely right. There should have been expert testimony to validate whether any of this is true. I think if parliament or the judiciary itself understood what happens and what can happen in the US system, people will be shocked. I appreciate that these issues were raised. I was puzzled because the latest statement on appeal seemed to leave out the jurisdictional grounds in terms of whether the Espionage Act reaches across the seas. And so that's why, partly why I wrote what I wrote, and it seems to me that still should be argued on appeal today. Because if, you know, it's interesting, the Espionage, the extradition treaty is not equal both for the US and the UK. In the UK version, all the US has to do is argue probable cause with general allegations. That's it. In the US version, the UK must demonstrate a reasonable basis to believe a conviction can arise. The UK would actually have to make a factual showing of guilt before the US will extradite. So the treaties are uneven. In terms of due process, the US one is way up here and the British one is down here. And that's obviously because the UK is still trying to preserve the special relationship and was essentially cow towering to the US demand for a weaker treaty. The truth is no US court would extradite based on the weak language of the UK extradition treaty that's being used for Assange. And now it is a problem because the UK courts traditionally give greater deference to the central government and obviously by extension to a friendly power like the US. But I think there is scope for the independence of the judiciary to assert itself. I do think and I'm puzzled by the fact that the latest statement on appeal does not seem to raise the issue of extraterritoriality. And if it hasn't raised that, that's not coming before the court of appeal now. So it seems to me that that's something that should be examined as to whether it should be raised. There's no, so Bruce, there's no, we've not seen the full list of the grounds at least I haven't. There are 14 grounds for appeal and we've only seen a few mentioned. So it could be in there. It may be that we haven't, I have not seen the whole file. So I caution anyone listening to understand that. And it's not as easy to get this material as it is in the US. It's a bit of a more arcane system in the English courts. Anyway, I agree fully with Alex. There should have been full explication of this question of what will the US do and what has it done in similar cases and what are the types of isolation that the US federal prisons can impose? Now I'm not, I wanna clarify one thing. Our federal prison system is generally a humane system, but it has the potential in these highly politicized or highly sensationalized cases to meet out very, very damaging psychological treatment. And that has happened in the past. Jonathan Pollard, for example, who was convicted of actual espionage for Israel was subject to intensive isolation for years. And Jeffrey Epstein, of course, is another example in point. So I think there should have been much more discussion. And the typical appeal to my knowledge, Alex, goes days often in the appeals courts, as you're saying. Why was it abbreviated? Is there a reason we know? Well, there's been no explanation for this, which is in itself concerning because if the appeal court didn't have the time, but they thought that this is something that ought to be, might be looked at, there might be something in these undertakings. Well, they had the option, for example, of sending it back to the trial judge and saying, you know, maybe the United States has given these undertakings. What do you think about this? Or they could have listed it for a longer day themselves and looked at this properly. They didn't do any of these things. They just, I thought, far too casually, just said, we accept these undertakings. And I was frankly very shocked when that happened. As somebody who says, as I said, worked in the appeal court, the appeal process myself, it just didn't make any kind of sense to me at all that it would happen that way. Especially given that the actual original grounds upon which the United States was granted permission to appeal at all were refused by the appeal court. They refused the appeal court on the actual grounds that were originally brought, but they allowed the appeal on this other issue, which had not been litigated properly. And I have to say that really was, for me, remarkable. Well, let me ask Alex a question. Yeah, I want to clarify for the audience what we're talking about here. US put in assurances that they would not mistreat Julian Assange in prison because that's the reason that the lower court judge, Baratza, blocked the extradition because he would be mistreated in a US prison. And I should also add it's up to the CIA, Bruce. I don't know if you know this. They get an input. We learned this in the extradition hearing that the CIA gets input into what kind of prison he goes into, which is another issue altogether. I'm sorry. Just wanted to clarify what we're talking about. The assurances the US gave that the high court immediately accepted without any discussion as Alexander said. I think what Joe, Joe, I think what'll happen is that the Bureau of Prisons probably will consult with the director of central intelligence on that issue. It's not the CIA normally has no jurisdiction, but there may be a practice that's emerged. There is a regulation in the Bureau of Prisons. But that's the point. It's completely outside of our control. Felix, excuse me, one moment, I had better plug my computer back in. Otherwise, this will be a very short interview. We wouldn't want that. So give me a second while my head is down on the ground. Sorry about that. My apologies. I didn't realize I'd be deviled by my natural battery. While he's doing that, when Bruce is done with his comment, I wanted to raise the issue of dual criminality as well. In particular, it comes to the first amendment and the European courts. But anyway, Bruce, go on. Yeah, I didn't go in question to Alex on a procedure. In the US, pretty much you can go back to a trial court any time a new fact has emerged. Especially if it's generally in the interest of justice. Now, there are some time periods, but generally there's an exception where something truly emerges that compromises the justice of the case. Is that still available to Julian Assange's lawyers in the English court? Can they go back to the trial court now and say, look, after you had this case, we learned of these assurances from the US. But there's been no factual discussion about them and no evidence. We want to now reopen because this is a new fact not known earlier. Is that something available at this point? The answer straightforwardly is no, because the lower court will not go behind the decision of the high court, which is the superior court. This is one reason why what happened in my opinion was so inappropriate, because I would have thought that the lower court ought to have been given an opportunity to have it say. As I said, this was brought in very much at the last moment, these assurances, they're brought tacked on at the end of the appeal. And it's one of the things, which as somebody who's worked in civil appeals, I found that most astonishing. Now, as a general principle in Britain, I think we are far more restricted in what we can do in terms of going back to the original trial court after something, some new evidence has come to light. Generally, it would only happen where you could argue that there's been an obvious massive injustice, but then the argument is difficult to substantiate that there would be an injustice or where there's been a fraud. So if one of the parties, for example, has intentionally concealed evidence, which would have caused, if it had been provided to the trial court, that trial court to come to a different decision. Well, that would be one circumstance where you could go back to the trial court. But generally, once the trial court has made a decision, you basically limited, you can go to the appeal court. If the appeal court can sometimes agree to consider new evidence, doesn't always, it's much more difficult to, as I say, introduce new evidence into a process, a legal process, after the trial has been concluded than I think it is in the United States. It's a problem, by the way, because it's something that does happen quite often. And one of the reasons why the trial in this particular case became so overlong was that it had all this huge massive issues that were being discussed. And I think it could have been more narrowly focused on the part of the defense, on some of the important points that you were making. But they felt that they had to cover everything, even as things have been thrown at them all the time, because they felt that if they didn't, they wouldn't have a chance to argue them later. And the result was that they got swamped by all the things that were coming to them, and perhaps their defense lost focus. I should point out that the U.S. put those assurances in after they lost the case, which led to the Assange lawyers arguing they were trying to move the goalposts. And the U.S. said they had no idea that the rates would even contemplate letting them off on medical grounds and the condition of U.S. prison, which is, of course, ridiculous. I just wanted to point that out, that those assurances were put in after, and I think, Alexander, at the time, you mentioned that that amounted to new evidence, which cannot be introduced at the high court stage. Yes, yes, but the high court decided that it wasn't evidence, that assurances were not evidence, they were just assurances, which again, by the way, is, as I understand it, against the flow of previous decisions. There was no reason why those assurances could not have been made to the trial judge. And the explanation was that we were absolutely sure we were going to win, so we didn't feel that there was a need to seek assurances. Is on its face a ridiculous one? Well, again, so it seems to me, but the high court accepted it. They said assurances are not evidence, and so the rule of introducing new evidence in an appeal simply doesn't apply. We can just go on and decide on ourselves without a proper hearing, without hearing expert witnesses, without hearing any kind of witness evidence at all. We just go ahead and we make the decision which is that we accept the assurances. You know, I've always thought that the political is fundamental to this case, but judges hate to decide issues on political questions. You know, they don't like to say, well, he's a political prisoner. It's hard for a judge to get that far. So it's always helpful, I think, if one uses a legal basis to kick the court into the direction you want. The court may not be willing to go on record and say Julian Assange is being prosecuted selectively for political reasons, but it might be willing to back a favorable decision into a legal ground. So I think what may have happened here is that the trial judge might have gotten swamped with so much data that some of this was lost sight of. And it's always a danger of offering too much to a judge. I always wrestle with that myself. And by the way, this retroactive pledge of good behavior is not so new for the US. There was a statute in which the President Obama signed it, a great liberal, that would allow indefinite detention of any person anywhere in the world if they were associated with al-Qaeda or the Taliban in any way. So I represented a group of activist journalists who have contact with terrorist groups and they were concerned that they could be brought into this. So we challenged the law and lo and behold, after the trial judge issued a ruling, permanently enjoining the statute because it's too broad in its sweep, lo and behold the Justice Department said, well, none of these defend plaintiffs, journalists and activists are within the scope of people we would ever detain. And the appeals court accepted that reasoning and said, well, you no longer have standing because the government has said, we'll never arrest you under this law. So this is a technique the government uses. It holds back, sees if it's gonna win or lose and then it throws in one of these highly vague and political statements to try to kick the appeals court in their direction. So it's not an unusual tactic for the Justice Department to apply. I've seen it, I've dealt with it myself, so. You know, on the question of selective prosecution, James Lewis, the Chief Prosecutor for the US in the lower court argued that weak leaks was a special organization and that it should be, it had such great reach. And I'm sorry, that it was a small organization, unlike the New York Times, so that's why they can go after them. Elizabeth, I think you had a question. Yes, I do. Bruce, you very eloquently argued, obviously, that the First Amendment authorizes a search and all journalists to possess and publish evidence of war crimes. And it seems in thinking about that, the only argument the US government could make in response would be basically to state that Assange isn't a journalist, which is exactly what we've seen played out for years in state-friendly media. How can we protect sincere journalism like that of Assange and that label of the free press for only applying when providing protection to state-friendly media, where it counts for them, but it doesn't count for somebody like Assange and an organization like WikiLeaks. Right, well, Elizabeth, I appreciate the question. I wouldn't personally use the phrase state-friendly media. I think that for my taste, that may be a little too loaded because some of our media certainly does challenge the government, but I would agree that what the government is saying is that there's the real media, in quotes, the conventional media, and then there's someone like Assange and he's not really the media they say. Well, Assange is no more or less the media than any other entity that publishes these things on a web platform. And our media has changed dramatically. Most newspapers, for example, online, link to all the relevant documents, and many did link to the WikiLeaks document. And so, to say Assange is not subject to the protection of the First Amendment is a nonsense argument. No US court has ever looked at the First Amendment as applying only to recognize media groups. That's like China's situation where we get free speech to licensed organizations. We don't have that in the US. There's no such thing as a definition of what is a journalist or what is a media organization. Everyone in the US is a journalist and everyone is entitled to the same privileges under the First Amendment and no decision in the United States has ever held otherwise. So it's a gross distortion to say Julian Assange is not within the protection of the First Amendment. What's really at stake here is what Georgia alluded to by saying, well, the others are too big means we're afraid to go after them because we'll destroy the free press. So we have to go after Assange to make the point that all the rest need to behave themselves and tow the line. We're gonna go after him because we know he's not strong enough to really challenge our prosecutorial bent. To prosecute the New York Times, the New York Post, CNN, Fox, MSNBC, et cetera, the BBC and all the rest, All Genre's, France, Press, Reuters, AP, the US could never handle it. So they're going after the low-lying fruit as they see it because they think Julian Assange doesn't have the strength of these other organizations. That is selective prosecution and quite frankly, it's politicized. They're afraid to go after large corporate media groups and they think they can make their point by taking the low-hanging fruit, which isn't strong enough. That's what they're saying. And so I think this has got all the hallmarks of selective political prosecution. Can I just say selective prosecution is a concept which is recognized in Britain and there is also significant jurisdiction within the Article 10 European Court of Human Rights, sorry, the case law there about selective prosecution as well. So this is something that British courts ought in theory to understand. But I have to say this, Bruce, there was a case in Scotland involving a friend of mine, Craig Murray, in which a Scottish court, which is a British court, did actually create divisions between journalists. Craig Murray is a blogger and the court in that particular case said that it's proper to prosecute him for contempt of court in that case. There were some things that he wrote about a case because he's not a real journalist. He's only a blogger. So he must be distinguished from real journalists who are those who write for newspapers and for television agencies and that kind of thing. Now, that's only one decision. My one rather senior judge in Britain, not in England, but it was appealed to the Supreme Court in London and the Supreme Court refused to give permission to appeal. And again, I did find that a rather worrying development indeed and it does make one wonder whether British courts, the British judiciary might be preparing to go to places which I don't think I would want them to go to and which American courts clearly would not be prepared to go to about what is a journalist and what is not. Yeah, you know, it's interesting. It's fascinating in the US, the blogger, even if the blogger has 200 followers, has exactly the same status and law as the New York Times. And what that Scottish judge did would never happen, could not happen in New York. Craig Murray has half a million followers. It's the biggest political blog in Britain. So that, as I said, it was a very disturbing judgment and he served time in prison because of it. So I mean, I was again deeply shocked. I should say that I don't think the case, his defense was particularly well presented in Scotland. I think that was Michael Satter, his lawyers did a particularly good job for him. I thought the appeal, the lawyers who acted for him in the appeal when it was brought to London, to the Supreme Court in London, did a far better job there. And I was very, very disappointed indeed. And again, I'm choosing my words carefully. I was shocked actually when the Supreme Court refused to entertain the case. So, we are seeing a very dangerous development in British law. Now, it's one isolated decision made by a Scottish judge. So it could be that when this case does go, that the Assange case, which is a much bigger case, goes to the Supreme, to the High Court than presumably eventually to the Supreme Court in London, that they will have a lot more to say about this issue. And I hope they do. I mean, they can't very well avoid it. They chose to avoid saying anything about it in Craig Murray's case, because there were reasons for this. But with Assange, they won't be able to do that. And I hope then that this question of selective prosecution will be argued properly and thoroughly as it should be, and that this idea that you can pick and choose between which journalists have freedom of speech protections. We're talking about Article 10 of the Human Rights Convention, which journalists have free speech protections and which don't, that that whole false notion is finally put to rest. But Bruce, at the risk of perhaps speaking for too long, just one point I would also make. The United States has had a constitution, a written constitution with the Bill of Rights for, to all it tells and purposes, the entirety of its existence. Britain has not, we are not anywhere close to being as well developed in addressing and thinking and talking about these issues as you are in the United States. There is a significant difference in legal culture, very gradually and very recently, especially since the Human Rights Act was brought into being in the early 2000s, English judges have had to start thinking about these issues, but even the European Convention on Human Rights is not as powerful a document ultimately as the US Constitution and Bill of Rights are. Those are foundational documents. The Human Rights Act, which uses weaker language and the European Convention on Human Rights, which also uses weaker language, are things that have been grafted on to illegal tradition, which is profoundly different and perhaps doesn't have that constitutional and Republican sentiment that you do find in the United States. Well, you know, to what Alex is saying, there's always been a different way of treating the press in Britain than in the US. There's always been a greater degree of press regulation in Britain, especially in the area of defamation and other areas as well. So there are differences clearly in that culture. I would think though that in an era where media is seen everywhere instantly, that we can begin to break that down and maybe some of the American ideas probably should be exported a little more aggressively into that legal culture. Absolutely, and of course, the Human Rights legislation that does exist, and which, by the way, is under constant challenge. There are people within the Conservative Party who want to scrap it, but for that aside. When it was passed to you... Yeah, go ahead, go on. Yeah, it's a potential vehicle to start bringing in these concepts because if you read the European Convention on Human Rights, a lot of it is clearly taken from the United States from American concepts originally. So you can see after the Second World War, when the Convention was written, a lot of American ideas came into Europe. They found their way gradually into Britain. They're under attack there. They've never been perhaps fully absorbed into the system, but that's not a reason for not pressing and getting them more thoroughly adopted. And perhaps also from looking at the American case law and the American approach to looking at these things, which, as I said, is much older and far more sophisticated in Britain than our own. Jerry, you're muted. Sorry, in the very first act of this whole legal drama, in the very first day of the extradition hearing in March, sorry, February of 2020, James Lewis, the very first thing he did was turn to the reporters in the courtroom and say, I wanna let you know that we're not going after you, we're going after this guy, Assange, who's not a journalist. They tried to make that argument from the very start that he is not a journalist. And that's quite extraordinary. And Rashida Tlaib, the Congresswoman in the US has put forward some amendments to the Espionage Act in which she makes it clear that it applies only to what she calls in this language, covered persons, i.e. government employees who've signed on disclosure agreements that they cannot reveal sequence. That would exclude everyone else, journalists, non-journalists, as you're arguing, Bruce, the Espionage Act, the constitution rather actually says already, do we need that kind of clarification that she's putting forward in the Espionage Act? Well, you know, the problem with clarification is that it always leads to more disputes about what does the clarification mean. But certainly, if we had some specificity in the Espionage Act, it would not be as challenging in terms of constitutionality. So if we said it only applies to those who have signed on to preserving secrets or confidences and not to third parties who have not accepted such a duty, it would go a long way towards reassuring the media. And because, quite frankly, there is no principal difference between Julian Assange and any other media group, there's no difference between him and those reporters sitting in the room. And the US would never be able to draw a principal distinction. So yes, some of that language would also help to say what it is we are punishing the disclosure of. Is it anything that's classified, or is it only things that are classified at certain levels? Right now, there's no clarity at all. So I think some clarity would be helpful. But I really do think that the First Amendment is always going to trump any language of specificity in the statute. Because even if the statute says, well, you can be penalized if you disclose as a third person information at this level of classification, the First Amendment is still going to kick in. And that broad blunderbuss approach probably still would be illegal. I've got to point out one thing. And I meant to say it earlier in response to something Alex was saying, no court has ever construed the Espionage Act in the US as to journalists or anyone such as Assange or a third party. It has never been judicially interpreted, construed, or applied to any third person. It has only been used in cases where someone works for the government and breached a duty, equivalent to in England signing the Official Secrets Act. And there is actually no case law allowing the government to do what it's doing. This is really a novel case in that sense in the US. And I think this is something that should bear into the extradition analysis in England. If there has never been a case recognizing the expansion of the Espionage Act to journalists or to third persons, that ought to weigh into the question of probable cause under the extradition treaty. And I suspect that maybe this has not been raised in the English case very much because obviously they're English lawyers who are not as sensitive to the American First Amendment jurisprudence. And it seems to me this is an element that should be addressed in the extradition context that, first of all, it doesn't apply by its terms to foreign persons. Secondly, no court has ever held that the Espionage Act applies to third parties who publicize as journalists do. And it's certainly never been held to apply to a journalist. In fact, there's very little case law on the Espionage Act surprisingly. Most cases are guilty pleas by people who work for the government and breach a secret. There's virtually no case law even interpreting the Espionage Act. This all ought to weigh in in England, in the UK courts as to whether the government really should be entitled to extradite. There's actually no basis to construe a true crime here. And I wonder to Alex whether this has really been raised much in the English courts in this case. You know, I don't think it has. Now, I'm not going to say that categorically because as I said, there were days and weeks of testimony and argument. And I'm not going to pretend that I remember every single argument that was made. But I think that that particular argument, I don't think was made or at least given the kind of force that perhaps it should have been. And this perhaps brings me to what I thought was the most interesting thing in your article, if this is my own thing, which is that you were saying in the article that consortium use published that it's a misconception that an application to dismiss cannot be made in the US now. And the great problem we have in Britain is that our judges are not familiar with the US Espionage Act in the kind of way that American lawyers are. Our courts have a bias to respect official secrets. Right. And our lawyers are not themselves, perhaps the best lawyers to think these things through. Obviously they can get advice from American lawyers. They can cause, they can call American witnesses. They might not be able to make these points as well as they should or could do, as could be done in the United States. So I would urge the Assange Dean to perhaps rethink this idea that they have, which from your article, and I found the arguments that you were making very compelling. I would urge them to rethink this idea, to challenge this in the United States itself. And perhaps that will lead us to different outcomes in Britain, which quite a part going beyond the Assange case itself might help us sort out some of the major problems we have in our own system, which are now building and which are growing like cancerous growths, picking and choosing between journalists and who's a journalist who's not journalist, rabbit holes, which we should not be going down. So I have to say Bruce, I never thought that. I know for a fact that I don't think anybody on the Assange's team has ever really considered that possibility. Assange himself, I can say categorically, does not want to be sent to the United States because I said at times that I thought he was more likely to win in the United States than he was in Britain. But I can completely understand why he doesn't want to go to the United States and risk his liberty there. Perhaps some of these arguments can be made in the United States now without him having to go to the United States at all. And hopefully, in that way, we can get clarity on all of these things and bring this case to a just conclusion, which would be of such benefit, not just to Assange, but to the course of journalism and free speech everywhere. You know, Joe, in response to what Alex is saying, you know, there is this notion that if you're a fugitive, you can't go to court to challenge the charges. And that's derived from what I referred to in the article as the disentitled fugitive doctrine. And that really only applies to someone who flees the US to avoid prosecution. Someone who commits an alleged offense in the US and just before they're indicted leaves and won't come back or after they're indicted, they leave either way. That never happened here. Julian Assange is not within that description. He's a foreign person who rarely was in the US. After these disclosures were made, he did come to the US. He gave a press conference, I think Joe in 2010 was it, I forget when. Yeah. To reveal the collateral murder video, for example, there. Exactly. So he didn't hide from the United States and he normally wasn't here. He's an Australian national. WikiLeaks was incorporated in Iceland. He did a lot of his work in the UK. He was never a US person. So it's not as though he's a fugitive in any traditional sense that would bar him from now challenging the legitimacy of this case in the US court. As far as I can see, he is actually entitled by law to move to quash this now on all of the grounds we've talked about, but especially on the foreign reach of the statute. The very fact that he's never really been here regularly and didn't flee an indictment. He just wasn't here for years before he was indicted. You know, he wasn't indicted until 2018. He hadn't been in the US for years before that. It's not as if he left to avoid indictment. And as a foreign person, he's not under any duty to return to the US just because he's been indicted. He is not a disentitled fugitive. He is entitled right now to exercise the rights to move to quash this indictment at least on the grounds of extraterritoriality. That could be fully heard by the trial court now. Probably would go up to an appeals court at this point if necessary. And that could resolve a lot of these issues because as a lawyer, I'm looking at this and thinking there really is no basis for extraterritorial reach here. And what has to be stated in the law in clear express terms that this reaches through some device a foreign person and it does not. You know, Andrew, if I can talk about one other issue, the issue of WikiLeaks disclosing the names of informants, if I can for a moment. That's an evidentiary question, not legal, and that we've had numerous shows and articles about that. You can make a point about it, but I don't think that goes down a different road, but please make your point. Well, not really. Not really, let me explain why. Because, you know, many people might say, well, you know, collateral murder is news. The rules of engagement relates to news, but what about informants? And this is what people will always think in the back of their minds. If WikiLeaks did disclose the names of some Iraqis who were working with US forces, isn't that something he should be prosecuted for? Well, first of all, there's no law that actually says that, disclosure of a document with the name of a person working with the US is a crime. If there was, then WikiLeaks probably would never have entered into that area at all, but there is no such law. The second point is that we have to remember that to many people, aiding US forces would violate other laws in other countries. For example, it almost certainly violated Iraqi law for an Iraqi person to aid US occupation forces. In some way. So if a person is not a US citizen living in London or Iceland or France, whoever it may be, discloses that information, they're actually disclosing something that shows a violation of Iraqi law. Now I don't endorse disclosing informants' names. As an American, I don't endorse that, but that's not the legal issue. The legal issue is whether other people around the world have different rights and different ways to view what the US does. And if it's illegal in Iraq to aid US occupation forces, then a person in the UK can't be violating US law when they expose US violations of foreign laws or the Iraqi informants' violations of their own laws. And so I think this is an important point that even though it may seem right to say he disclosed informants' names, it actually is a protected act under the laws of many countries to have done that. And that's why the US to reach across the seas, to drag us on to cross through an extradition treaty, really is a violation of this whole concept of extraterritoriality. I mean, there's depth in this case that needs to be explored. I know a lot of it's been done in the UK, but probably not enough in terms of some of the sensitivity issues. It's an interesting point. The fact is just one minute, Alexander, is that Crypto.com published these, the unredacted files with some of the names in there before WikiLeaks did. It's another example of selective prosecution. Why didn't they go after Krypton? Because as James Lewis described, WikiLeaks is very popular. So they were going after somebody who had a bigger reach than krypton.com, Alexander. Yeah, and what I just wanted to say coming back to what Bruce was pointing to saying, I am absolutely sure that this issue of the disclosure of informants' names is going to come up in the appeal because my recollection of this, and again, it was an enormous judgment and I may be wrong in some things, but I don't think very wrong, is that the trial judge dealt with that factual issue in an incorrect way. She actually came to views about this, about the disclosure of the informants that were just wrong on the facts. And of course, when you make mistakes, that can't be an evidential issue. Actually, it can actually become a legal point as well in an appeal, as I've seen happen many times. So I think that is a point that can be made in the appeal in England. And I think again, it can be argued and all of the very important and interesting points that you made can be argued to the appeal court in Britain. But I still believe, and I do believe, that a more receptive court hearing these points you've just been making would be a court in the United States because this is more your type of territory in a way than it is ours. Our judiciary just isn't at home with this sort of thing. They are deferential towards the Crown. They are, after all, the King's judges. And they are not really accustomed to a system with the kind of embedded protections that the First Amendment, the Fifth Amendment, issues of extraterritoriality and all the rest create. Yeah, and the notion of parliamentary supremacy, obviously, is one we don't really have in the US. Congress is one branch and the courts have to weigh all of that. And we don't give any deference to Congress at all, to be honest, in our court system. Obviously, there's a different concept in Britain. And there's two different approaches, obviously. I'm not gonna say Britain is an unjust legal system, but it doesn't go to the extent that we do here. And I think injustice can arise from that difference. Well, certainly in a case like this. I mean, in commercial cases, we might be very good. We're very sophisticated in commercial cases, but we're probably less so in constitutional ones. And if we are honest with ourselves, we should recognize this. And if this case can be heard in the United States now and decisions can be made in the United States, which English judges might be surprised by, then that is a good thing. It will help to educate them. I mean, I'm sorry if I'm being a little mischievous there on such a case as this, but because as you correctly said, this is the internet, we're all involved. It's now global system of information, commentary and news and media. So it would be a good thing to go back to take these ideas if they can come from the US, from constitutional lawyers there, familiar with the First Amendment, familiar with the Fifth Amendment. We got due process protections in Britain as well. But perhaps again, it's never been thought through as thoroughly as it has been in the United States. And that could be done in the case in the English courts now too. And I would have to say that certainly, I think there would be a different way of viewing this in the US. Joe, let me make one point. There's a lot of assumptions that if Assange gets a conservative judge in Virginia, which may be likely, we, you and I have talked about this a bit that he's at a disadvantage. I have to say, I don't think so. I think that when one talks about these issues of due process and the First Amendment and expert territoriality, often a conservative judge is just as helpful. Sometimes the liberal judge is gonna look to construe governmental power too broadly in the US. Whereas a conservative is gonna be tend to say the Constitution hems the government in. So, Julian may be thinking that a conservative judge in Virginia is not good for him. I'm not sure that's a fair way to look at things. In my experience, conservative judges often are better in some respects in civil liberties issues than liberal judges. And I think liberal judges would be worse for Assange because they hate him based on the election of Trump for one thing. But I don't know if I agree with you, Bruce, and you, I have never dealt with judges. So, you know, a million times more than I do. But as Alexander pointed out, in British judges have deference to the crown. And we've seen how the whole system here has deference to the United States, or that tradition system. So how are you able to say that a judge in the US, liberal or conservative, wouldn't be naturally biased towards authority in a case like this, a guy who revealed US war crimes? Because this is a judge. I mean, the point I was simply going to say is that this is a judge working within a body of law and a system of law, which has made that judge a judge. They have the confidence and the, if you like, they're hardwired to think in a particular way. You see that in many situations, you see that, I mean, English judges, the same English judges who might be extremely deferential to the crown on constitutional issues might take much different positions on commercial ones because we have a massive tradition in commercial law in England. But, and they won't want to go outside it because they will say, if I go outside it, if I start to contradict it, then what kind of a judge am I? So I'm sure the same applies in the United States. Yeah, I think that the truth is, judges do follow a system of thought that's judicial. So Joe, I'd have to disagree a bit. I think people do have a misunderstanding of this. A liberal or conservative judge is not liberal or conservative because of the politics, but rather because of how they see the role of the constitution versus the citizen versus the central government. And I do think we have a bit of a misnomer there. I know often they align together, the liberal judicial view will align with liberal political view, et cetera, but it's not the same necessarily. Just as Thomas, for example, supported California's medical marijuana law years before marijuana was decriminalized. And he said it's because the federal government doesn't have the power to regulate. Only the state has the power to regulate. And he said that if California's willing to let marijuana be used in this liberal way, it's not for the court to say no, nor for the federal government to say no. So he may never use marijuana for all we know. Who knows what he does and those parties he goes to. But he may never use marijuana, but his view was it's the state that has the right to make the rule. So that's a good example of how a conservative would endorse what we think of as a liberal approach to life. So I'd have to say that I think judges are hemmed in by rules. There is a lot of wiggle room because a judge may construe a statute more broadly to favor greater governmental role in the liberal setting. A conservative judge will probably construe a statute more narrowly. And we saw this in terms of the federal government's power to issue COVID regulations. The conservative judges were constantly issuing rulings hemming in those powers and the state power. Liberal judges attend to say, no, we have to have broader scope for the federal government. So it's really a question of how you see the government versus the constitution. I think in these situations, a conservative judge in my view is not gonna count out to the government. I know what a liberal judge, it's a matter of how they see the role of the constitution and the government. So in my experience, frequently conservative judges are better and what looks like how-towing to the government, I'm not sure that's a proper phrase to use any longer, but what looks like giving into government is simply a way of viewing how the constitution works. I'd like to say that I think that our judges as Alex was suggesting are trained in a way of thinking and that's what makes them work. If we don't believe that as lawyers, we can't function. So we have to believe that. I would point out that the Assange case has not been normal in any way, shape or form and that this might bring about a different mindset from a judge. Now, let's just recapitulate here. You're actually right about that. A judge might have a feeling that this was treason and that might be something that judge can't get around. That could happen. I like to think that's not gonna happen that our federal judges can put that aside. I like, I have to believe that. I'm sorry, Joe, I didn't mean to interrupt you. Yeah, on the question of bringing, moving now in Virginia, there's already been a judge appointed to Assange's case. So his lawyers could put a motion into dismiss this entire indictment on the grounds of the constitution grounds that we've been discussing and you are arguing then that the American law, the assistant, the attorney, U.S. attorney would then counter that motion by saying he's a fugitive and you've argued that is no way he could be proven to be a fugitive. This Julian, sorry, Julian Assange's wife, Stella Assange and John Chippton, his father repeatedly said, this is a political case. Now it's gone beyond the law that there's been such absurdities in the court case in Britain that this is a political case now. And you made an interesting point, Bruce, that I wanted to elaborate on now is that you could use the law as a way to pressure a political or diplomatic solution to the case and that by putting that motion in now, that could set that train in motion. Sure, in other words, if we would go to court in the U.S. and say, look, there's no extra territorial reach to this law. It never reaches what the Supreme Court in the U.S. said must be in the statute to have foreign reach. This could be something the government doesn't want to have to face. They don't want to have to face a judicial decision that limits the scope of the Espionage Act. And so the government might actually say, no, we're gonna pull back. We'll accept the diplomatic solution or we'll allow Julian Assange to plead guilty to one violation of the Computer for an Abuse Act for time served already or to serve an extra year in Australia. There are ways that a solution can be found, especially since the Biden administration, I think, is not so interested in this prosecution. The Trump administration sought it out, but I think the Biden administration is not so comfortable with it. And so pressing the government by legal arguments early on may be a way to force some sort of compromise. Remember in the famous Pentagon Papers case, and this is going back to the 70s, the Nixon administration intentionally disclosed that it had wiretapped Daniel Ellsberg's psychiatrist office. And they did that for reasons of their own, perhaps they were trying to see if the court would validate extra legal wiretapping, but more likely they were looking for a way out of the case. And the disclosure of those wiretaps led the trial judge, Judge Byrne, to throw the entire case out. Something the government did not resist. So putting pressure into the system at certain points can result in these changes. I really think that Julian Assange's team should be looking to quash this indictment on certain grounds now. By the way, yes, Alexander, go on. No, I can just also say that of course, if the British authorities were to sense that there was a real possibility that the case might be quashed in the United States, then they would be very, very keen on a diplomatic solution indeed. If they really thought there was a real possibility of that happening, because it will be very, very embarrassing indeed for this country. If an American court quashed the entire case after the decisions that the British government has taken and the court has also taken, I think at that point, if the advice was coming back, there's a real possibility that this might succeed in the United States, then that would certainly spook the British in awful lot. I'd have to say, I would say that there is a better chance that Julian Assange will eventually be acquitted of the Espionage Act charges and that he'll be convicted. There's just too many areas of doubt in terms of evidence, but also the intent of the statute. It's overbreath, whether it intrudes into First Amendment activities, the lack of notice and extraterritoriality. It seems to me more likely than not he will win in the US courts. Of course, if he comes here, he has to go through detention in the US, which might be manageable. He fears that, I think justly so. And he's been in detention for so many years. His judgment may be a little biased in terms of what he'll experience here. But I think in the end, he has a far better chance of winning this case than being convicted. And that's what Alexander's been saying, that he had a better chance of winning in the US. It goes against the consensus that has grown up inside the Assange camp led by Nils Meltzer, the former UN special rapporteur on torture, that he cannot get a fair trial in the US. This is just about everyone who speaks on Alexander's behalf is saying, you don't agree with that, Bruce, then? No, absolutely. I have no question he'll get a fair trial. Whether his pretrial detention will be too rigorous is another question. Isolation 23 hours a day or five days a week with minor periods out of it, that could be very hard on anyone. And so that's a different question. I don't know whether that will happen. But as far as a fair trial goes, he will absolutely have a fair trial. And these issues that we're raising here will be explored very fully. And I think, frankly, a conservative judge would probably look very favorably on many of these issues. And I do think the appeals courts will. So I have no question to get a fair trial here. The problem is that the Espionage Act is so broad that some of your rights to introduce evidence may be limited. But that's why it's unconstitutional, because if it's overbred, then that's the argument that has never been made in the US, because there's never been a prosecution like this. So I believe he will absolutely get a fair trial here. I think to call it purely political is to undermine the whole US legal system, which does not operate on those principles. Daniel Ellsberg was acquitted, frankly. And the government never appealed. And we see many instances in which there are acquittals. We've seen the US Supreme Court step in frequently and recognize in an injustice one of the Enron executives. One of the biggest corporate frauds in history was actually acquitted of insider trading, because the Supreme Court intervened and said that the law was never designed to reach certain types of nondisclosures. And this happens frequently. So I am very confident there'll be a fair trial. And I think it's wrong to say otherwise. But I can't say is how he'll be confined pre-trial. That might be unpleasant, not in any humane way, but just the isolation that naturally results. In the Pentagon Papers case, it was torn out for that press-couturell misconduct. And Ellsberg himself, when he learned that the CIA had hired a Spanish company to spy 24-7 on Assange inside the Ecuadorian embassy, including on privileged discussions with his attorney. That should be the grounds right then for the court in Britain to deny extradition and end the case right there. That didn't happen. That was 50 years ago. I think there was a different culture then. We could see how in the Milai incident compared to the collateral murder. These are two evidence of US massacres in two war zones. In the Milai case, the whistleblowers listened to. There was actually a conviction of one of the soldiers. The journalists who revealed it got a job at the New York Times in a Pulitzer Prize. When you fast forward 50 years later to the collateral murder issue, the whistleblower who revealed that went to jail, Chelsea Manning. The journalist who did not get a Pulitzer Prize in a job at the New York Times is in jail right now. And no one has been prosecuted in the US government. So I think the culture has changed then. And I should point out also in the Pentagon Papers case, there was an indictment. There was a grand jury in panel in Boston to go after the New York Times reporters. Just as FDR got a grand jury in Chicago to go after Chicago Tribune for revealing details of Japanese codes during the Midway battle. So on both those cases, in Chicago, the grand jury refused to indict and in the Boston case against the New York Times and depending on papers, that was dropped once it was revealed the wiretaps happened. So there has been attempts by the US to do this again. But Bruce addressed the issue that the times have changed and that we may not have the same kind of fair trial or the same outcome as Ellsberg got, even though there's even more egregious evidence of misconduct now. They tried to kidnap or kill him. We know this for a fact now. That's much worse than what the gang of breaking into Ellsberg's psychiatrists. Well, it's a great question. I'd have to say I disagree slightly with the premise because I don't think we even have data to say that it is a trend that's changing in terms of how we tolerate or accept this type of dissent. I mean, we do have some cases more recently, as you point out, Chelsea Manning going to prison. But remember that was a clear case in which someone did breach a clear legal duty to keep material confidential. That is not the same legally as whether some third person can publish it. Even though a grand jury was impenaled as to the New York Times, there was never any serious effort to prosecute the Times. In fact, the Supreme Court held that the Times had the right to publish it, precisely because even though it was classified, there was nothing- That was prior restraint, sorry, that was prior restraint. After publication under the Espionage Act, the government can go after newspaper and that's what they tried to do. Well, no, but there is a caveat in that decision and that is that there has to be absolutely clear evidence of imminent and immediate harm to national security from the publication. And the Supreme Court said, well, where is that? It's not here. So that does help Assange's position in a sense because most of what was disclosed could not be said to lead to imminent and immediate harm. It's all attenuated. And so I think that legal tradition does still apply. I'll agree, there are different attitudes in certain ways today. I think that we have a more law and order perspective to a degree. I think some of that dates from the late 90s when some of the anti-globalization protests became violent and there's a bit of a reaction in terms of lack of tolerance of that kind of protest today and maybe that affects other doctrines. But I don't think Joe, we have enough data to say someone like Assange won't get a fair trial today. I think our tradition of free speech and respect for due process is still very, very strong. And I really do think that the system still will work for him. A lot of, it's like we say about computers, garbage in, garbage out. I don't mean to demean any lawyers, but it depends on the quality of legal work that's going into a case. And so sometimes people don't get good quality lawyers. I'm not suggesting that about England and the Assange case. I'm really thinking about some cases in the U.S. where people are not able to get the best lawyers. And so bad results can happen, better lawyers can lead to better results. So I have faith in the system, Joe. I don't think we've gotten to that point. I think our judges still take this very, very seriously. And that's the only view I can have, frankly. I don't think we have enough data to say otherwise right now. I think just recently, yeah. Just recently we've seen journalists at Taibi threatened with jail time for allegedly getting an acronym wrong in front of Congress, which when you look deeper into it, it looks like he didn't get it wrong. We also have seen the indictment of black socialists as well. And part of the indictment against them was the accusation that they weaponized free speech. So I think there is some data out there right now, specifically in the last couple of months, really, that shows that there is a culture of persecuting people, but journalists and activists for basically saying things the government doesn't like. I'd have to say, Lisbeth, that there's a difference between an indictment and how the court system will handle it. The courts don't indict, a grand jury does. A judge has nothing to do with an indictment, right? It's 18 people or 36 people and they decide and they're really under the domination of a prosecutor. There's no other independence there. So I'd have to say it's a very big country. We have a good 1,000 federal judges supervising cases at any one time. And I don't think we can look at that as an indicator of the judicial trend. I think a court will most likely throw out a case that's dealing with weaponizing words, et cetera. We are a big country. We have a few weird things that happen, but that doesn't mean the system won't protect rights. So I'm not sure I would agree as a lawyer that their indictment shows a trend because that's not the judicial system at work. It's just a grand jury, which can be misled by a prosecutor, let's say. So I'd caution against associating that with a trend. That's my only view. I don't mean to be disagreeable to the points you're raising. I'd like to cycle back to the First Amendment issue of two things on that. One, the dual criminality issue is what, as a crime under the Espionage Act is also a crime under the Official Secrets Act. But before that, I just wanna ask you point blankly, Bruce, Mike Pompeo, when he was CIA director, made a statement that the First Amendment doesn't apply to Julian Assange because he's a foreigner, he's not an American. What do you make of that statement? That's a fascinating argument. Well, if it doesn't apply to him because he's a foreigner, then how can the law apply to him at all because he didn't do anything within the scope of the US jurisdiction? So it's a self-defeating argument. Either he's within the jurisdiction of our law because he's an American person, which he's not, or he's a foreigner and he's not. So the bottom line is that once he's brought to the US, hailed into court, as we say, which is another way of saying dragged into court, once he's brought here, he's fully under the protection of the First Amendment. And so if the US prosecution, the First Amendment attaches to that statute and what Pompeo's wrong about, it's not a matter of whether Julian is protected by the First Amendment. It's a matter of whether Congress is bound by it when it decides what is a crime. It's the statute that's tested under the First Amendment, not Julian specifically, it's the statute. And if the statute intrudes into speech, then Congress has made a law respecting speech and it's unconstitutional. So Mike Pompeo being a former spy and then diplomat might not be sensitive to how the law works. But it's fascinating if Julian is not subject to the First Amendment because he's a foreigner, then how can it be prosecuted at all under a statute that doesn't speak to that? It demonstrates, frankly, the absurdity of the situation. Yeah, Saunders-Lawrence appointed that out. Alexander, on the question of dual criminality, now under the Official Secrets Act, there is prior restraint despite catcher cases and example of that. And then been journalists have been prosecuted before in the timeout case and rest of the cases. That hasn't happened in the US even if they tried a couple times with foreign and failed and they're trying now. Well, Julian, is there dual criminality here? Is the law in the Espionage Act the same as the OSA when in terms of whether the government can go after Julian Assange? What is your opinion about that? Well, the court, Baritza, decided that there was a crime under British law. He's not been prosecuted, of course, in Britain for any crime at all here. But she said, if this is what happens in the US, if it's contrary to the law in the US, then we would apply the same rules here and we would come to the same decision. The question is, I still think Official Secrets goes further than anything in the United States. I think if this has no viability in the United States, then I don't think you really need to worry too much about your criminality because he's been prosecuted under an American Act. And the British courts, if they see that the case in the United States is collapsing or doesn't exist, then whether he would have breached in similar circumstances a British, the British Official Secrets Acts, really, I think it's a moot issue. It's a red herring, actually. The question is whether it's a crime in the United States. It is a crime under the OSA, but it's not under the Espionage Act. That's what we've been discussing this entire program. Well, that's exactly the point that Bruce is making. And I think, again, speaking as somebody who was talking about jurisdiction, a constitutional system that is completely not mine, I can't see myself problems with his arguments. I mean, that's what we discussed when we discussed his article before. So if this doesn't work in the U.S., we can't extradite him. If a court in the U.S. were to come out now and say that this case should be quashed, this prosecution should be quashed, we can't extradite him because the Americans are asking us to extradite him because the Americans are saying that he's got a case to answer in the United States. That's the only reason we are extraditing him. If he'd done the same to Britain, if he'd got British information and published something like the Collateral Murder of Video and done all those sorts of things and had been guilty of British official secrets legislation and had been found, you could argue that you'd have been guilty then, but that's not the situation in which Julian is in. So it's the American legislation, the American constitutional system, the American crime or non-crime that is the issue. You know, and along those lines, under the extradition treaty, there has to still be shown to be probable cause. And if the statute doesn't reach to a foreign person, it seems to me there is no probable cause. And so I think the UK court has to examine the sum of the substance of the charges and the statute to determine if there's probable cause. If U.S. law would hold that this is an unconstitutionally vague act, well, then how could there possibly be probable cause under the extradition treaty? So I think that some of this should be gone into in the English proceeding. I, again, you know, English lawyers are not, as Alex says, as sensitized to the issue of constitutional vagueness and overreach as American lawyers are. Many American lawyers are not, only those who work in the area are off, but I think that tradition doesn't really exist very deeply in the English courts. And so I think this is something that may not have been fully addressed thus far, but certainly it all relates to probable cause. If the U.S. statute won't allow this, and it's never even been done before in the U.S. and it has not, that should speak volumes as to whether the UK court should extradite. And I want to repeat this point. The Espionage Act has never been used against journals at least since our modern First Amendment began in the 1920s. And our modern First Amendment case law began. And since then there is no case law holding that it can be applied to journalists, bloggers, web hosts, or third persons who don't have a duty of confidence to the U.S. That should speak enormously to the English court as to whether there's really a basis for extradition, especially since none of his acts were even committed in the U.S. It strikes me that this should have been probably the fundamental part of the presentation in the English courts. And I suspect due to the perception of a political case, that was a bit lost sight of. You're almost certainly right about that. And can I just say that always remember what I said at the beginning, that this is the judge who heard the case, the trial judge, Judge Baritza, is not perhaps the most sophisticated jurist able to understand and relate to these arguments. I'm not suggesting she's a bad judge. She's probably an extremely capable trial judge. But these are sophisticated arguments about constitutions, a constitution protections and patterns of prosecution. In another country, she's probably not the best person to argue those things before. The High Court, the judiciary and the High Court, the judiciary and the Supreme Court, which it will go to, it will go eventually, I'm confident the Supreme Court here as well. They are perhaps people who can understand these arguments or would follow these arguments and take an interest in these arguments better. And I hope that they are argued there. And I hope that they are argued in the way that you say. In other words, in a more focused way than proved possible at the actual trial. I should say I attended one day of the trial. And I found the whole thing slightly, I was gonna say zany actually. I mean, it was, things were coming up all the time and it was very difficult almost to catch, to keep one's breath and understand things the way they were happening. Because points were being made and they were being made very fast and the judge was responding very quickly at a kind of velocity which just didn't allow for things to be put together as clearly as they should. And one of the things that I found very concerning about the trial is that the judge herself, Baritza, seen in an extreme hurry to get the thing done as fast as possible, which again, I found surprising in a case of that nature. I hope that in an appeal before the high court with different judges, we can have a much more focused and much more careful hearing with these, you know, juridical and constitutional points explained to the court more clearly. You know, let me just say that one of the things I think is the job of the advocate is education. And you know, the judge may not have the background in an area that you do. And so the advocate's job is really to educate. And I've always found it's interesting when I become too tendentious, I'm useless in a courtroom. But when I speak more professorially and I'm teaching in a sense, I'm more effective. And so one of our jobs is to teach the court. And so in a setting where the judge doesn't have a natural knowledge of these constitutional doctors that we use in the US, the advocate has to learn them and teach them. And that probably is something that was difficult to achieve here. I would hope there's a chance to still do that. One thing I would say is that, I don't know, Judge Baritza at all, obviously, an American federal judge would have in their mind they carry around with the most of the concepts I'm talking about. So they've got a good background and a platform to start from. Now, not every judge is as good in every area, but every federal judge will have a good basic knowledge, a working knowledge of what I'm referring to. Obviously, because of different systems, an English judge would not. And the commonality is there, but it's not complete. And we don't have that much overlap with some of these areas. And so I think that if on appeal, especially the advocates can begin that process of education into the appeals court. And there should be plenty of time if the appeal will go on several days, there's ought to be the case, there should be plenty of time for that to happen. And maybe they need to start consulting with American lawyers to be able to import these ideas into the appeal. That's probably something that may not have happened yet. I don't know. Well, I would hope that the appeal is going to be conducted over several weeks, actually, not just a few days. So I hope we do get a proper full hearing of all of these points and all of these arguments that you've been making, Bruce, and that this is all clearly set out there. And that we are going to be dealing with very intelligent and educated and well-informed people. And I'm not saying that this is their background, but they are the kind of people who you would expect would wrestle with these problems and think about them seriously. I hope, I mean, you know, odd things, as Joe was saying, have happened in this case. I mean, I still, I mean, I was stunned by the way in which the assurances were accepted by the High Court. So when that happens, that does shake your faith. And I take your point completely that as lawyers, we have to believe ultimately that our judges, the people who hear cases are acting in good faith, because otherwise, you know, what are we doing? But I have to say, I was very shaken by that. But I hope that this time, with these arguments and this appeal, this will be conducted differently and that everybody will be alive to the seriousness of this situation and that it will be, you know, proper amount of time will be given. This is going to be a very different appeal hearing from the previous one, which is I think two days. This is surely because it's going to cover many, many more issues and many more, as I said, deeper issues that it's going to be conducted over several weeks. I would hope. I have one question for Alex, Joe and Procedure. In the U.S., after the trial phases and appeal as of right without question, does that apply here or does the court have to grant leave to appeal? It has to grant leave to appeal, but I presume it will. I would be very, very surprised. I would be astonished. I would be very, very concerned indeed if it didn't. Yeah, that's a miscarriage if they don't hear. Absolutely. Absolutely. You know, one thing to point out in the U.S. is always a right of appeal. That may be another protection that may be missing in the English system. And I think it's a practical question. Our legal system is so much larger that we give appeals as of right. I think in the English system, the court system being smaller, the court of barristers being smaller, it may be harder to do that as of right. And I think that accounts for the difference probably. I think that's true. I mean, the other thing he has to say is somebody who worked in the law course of justice and this is not an excuse or even an explanation in this case, but people there are very, very overworked and there is a tendency to sort of not grant permission to appeal when you can. But I would be quite frankly appalled if they refuse to hear this one. I mean, I would have thought that they would want to hear this one. There are far too many important issues to discuss and the very fact that this case has attracted the attention that it has. And the media in Britain, and they've turned very pallid in effective way, has actually spoken out in support of Assange, maybe without much conviction that they've done it. So I would have thought that the high court certainly would want to hear this appeal. And I would have thought also that if the high court decided to refuse the appeal, Assange could appeal to the Supreme Court. And if the court allows the appeal and the US also appeals, I would have thought also that the Supreme Court would want to hear it. Though obviously that would depend to the extent on the nature of the decision. Well, the high courts had seven months to consider whether to grant the appeal and I haven't decided yet. Now, am I understanding, Alexander, it's because you don't have a written constitution that the Supreme Court in Britain does not decide constitutional issues as the US Supreme Court certainly does. How do they deal with these issues if they can't talk about? Isn't that just narrow points of law that they were going to deal with? Like whether we do- I'm going to have to absent myself for a minute or two. I hope you'll excuse me. I hate to do that in a live broadcast. But I shall- You're coming back. Yes, I will. I'll come back. Yeah. Thank you. Well, we don't have, as you correctly say, a constitution in the American sense. We don't have a written document. We don't have a Bill of Rights in the court. We do have something we call the Bill of Rights, but it's profoundly different from the American one. But the concept of constitutional law is gradually beginning to evolve and become better understood in Britain. And the very fact that we have a Supreme Court in a sense is creating this because the Supreme Court conceives of itself as a constitutional court. So it's making up a constitution, if you like, out of its decisions. I'll give you one example. A couple of years ago, Boris Johnson decided to prorogue Parliament. This is during the Brexit debates that were taking place once upon a time, not so very long ago. The courts wouldn't have touched that because they've said that's a matter outside our jurisdiction. That's a matter, it's a political matter. The Supreme Court, in this case, said that the way that Boris Johnson acted was illegal because he shouldn't have cut off Parliament from consideration of what was going on in the way that he did. And that is a major change in the way in which British courts handle cases. I mean, again, I was very surprised that that happened, but it shows you that we aren't gradually evolving. You're doing a more constitutional system in Britain as well. I would add that in the Supreme Court, the Supreme Court is unusual in Britain in that it's made up both of practicing lawyers, lawyers who actually work their way up through the system, judges and people of that kind. But also you can get academics sitting as judges in the Supreme Court. So you have, again, a more, shall we say, intellectual bench than you would in some of the lower courts and one which is, again, perhaps more willing to come up with decisions which are constitutional and developer constitution, if you like, out of case law. So, if Sander's lawyers made the argument that Bruce is making, the Supreme Court, first the High Court and the Supreme Court could deal with those issues. Obviously, they can deal with them, they can deal with them. The question is whether they would be persuaded enough by the arguments to overcome that deference to both the government and ultimately to the United States. You absent the indictment being cloistered in the US as you said before. If the US court made that decision, then that case is over then. Elizabeth, do you have any, while we're waiting for Bruce to come back, do you have any questions for Alexander? I was just gonna ask, I mean, you've talked about how the court right now is continuing to consider whether to grant leave to appeal. Do you have any sense of how long they can possibly take? I mean, is it just completely open-ended? Is there no timeline? No, it is not open-ended. I mean, there has to be, they have to come to a decision themselves because if they don't, then that in itself becomes a potential issue further up the line because, you know, that there is, I think I sent to Joe, the extract from Magna Carta that, you know, you can't just delay giving justice indefinitely. I mean, that isn't acceptable. They are taking their time, but I don't think we should read too much into this. Given the complexities of this case, what they're probably doing is they're trying to refine the grounds of appeal in order to try to get themselves a coherent hearing. And there's probably some doing and froing between the judges themselves and the lawyers. And we will eventually get a decision of that. I'm confident and I hope that it will be, no, I'm confident it will be a leave to appeal. And I hope it will be a broad leave to appeal that they won't try and narrow it down too much so that arguments can't be fully made as they should be. Well, you're away, Bruce. We were discussing the fact that the UK Supreme Court does not formally decide constitutional issues because there's no written constitution like the US Supreme Court does. But Alexander made the argument that gradually over time, they've been building up by, through their decisions, a kind of constitutional argument. So I was wondering what you thought, yes, Alexander. Well, I mean, what I'm saying is that their case law, that the case law they're generating, precisely because they are now, they perceive themselves as a Supreme Court. The case law is starting to acquire a constitutional law character. Because otherwise, again, what is the purpose of them? So it's an evolving thing. It's very much at an early stage, but it is gradually happening. And again, at that level, that very rarefied level in terms of the judiciary here, you are going to find people who are interested in constitutional law questions and who are certainly capable of following all of the arguments that Bruce has been making. Yeah, you know, it's interesting. The English tradition is seen in several countries. Israel, for example, is one. And one of the reasons the Netanyahu administration attempted to reform the court was because the Israel Supreme Court was asserting more and more power to make constitutional rulings beginning in 1995. And so this is a trend that's been emerging in Israel, for example, which there are many people in Israel feel is contrary to the consensus that the country had been governed under earlier, where there's more parliamentary supremacy. But I think just like in England or in the UK, rather, I think some judges in the British model with an unwritten constitution are probably starting to assert more and more constitutional jurisdiction. So I would hope so. And I think that there are, Joe, although we say Britain has an unwritten constitution, there are written elements to it. Alex just referred to the Magna Carta. I think it is the Bill of Rights and Liberties that was first produced prior to William the, is it second, third reason? 1688, William the Third. 1688, right. When William and Mary came to the throne, the condition of the accession was the accession to this bill. So there are some constitutional documents in Britain, but you're right. It's a less specific system. And it has its strengths and its weaknesses. But bear in mind one thing, that to a great degree, we have an unwritten constitution in the US because we don't have very specific provisions in much of our constitution. You know, the Congress, excuse me, the First Amendment says, Congress shall make no respecting and establishment of speech or of the press. That's literally all it says. And that's specific in one sense, but it's so general that in a way, we have to keep filling in the contours of it. So in some ways, we don't have that different system in some respects. You know, our system is written, but it's a broad writing that we always have to keep filling in. And so I would add that- The fundamental differences, that you've been doing it for very much longer than William the Third. And you've had a Supreme Court that's been there generating case law for very much longer than we've had because the old House of Lords really, that wasn't its role. It was a much more limited thing. So we are at the start of a process which you have been working on for more than 200 years, if you think about it in that kind of way. But you know, we are developing. And the other thing I would say is that, of course, the other thing that has changed things radically in Britain has been the huge development of judicial review by the High Court. Now judicial review originates from the prerogative orders, mandamus, a charerite, prohibition, habeas corpus, all of those things. But gradually it's evolved into a system where the High Court, and it's a High Court that exercises in Britain the judicial review power, not the Supreme Court, but the High Court takes in, can check decisions of the executive to ensure that they are compatible with legal norms. And this has been a massively developing process, an area of legal creation since the 1970s. And that does have a definite constitutional law quality. Yeah, the difference really in the two systems is that our judicial review can set aside statutes when we measure them against the Constitution. I think what Alex is referring to is judicial review of executive actions as weighed against statutes or as against some constitutional principles. But I think, if I'm correct me from wrong, Alex, the idea of parliamentary supremacy sort of mitigates against too much judicial review over statutes themselves. Absolutely, that is entirely correct. The Court cannot override a parliamentary statute. What they can do since the early 2000s is that they can see whether a statute is consistent with the Human Rights Act. And if the Human Rights Act contradicts, appears to contradict the statute, they can actually issue a statement of the effect that the statute itself is inconsistent with the Human Rights Act or they will try to interpret the statute in a way that they say is consistent with what I said the Human Rights Act, I mean the European Convention on Human Rights. So that is a departure. But even then they can't simply set aside the whole statute, they can't say this is unconstitutional. That concept simply doesn't exist in prison. It goes completely against the doctrine of parliamentary sovereignty which you alluded to earlier in the program. So that brings us full circle really back to the Espionage Act. And our courts have the absolute power to set it aside on its face or to set it aside as applied to someone like Julian who logically is really in the media. Whether you call him a journalist it doesn't seem to matter too much to me, but he's in the media. He's a person expressing views or disseminating information to the public. And so that brings us full circle. Our courts have the absolute power and will circumscribe a law such as the Espionage Act when applied to third parties like Julian the Son. And they will construe it to be unconstitutionally vague as well. That's not so much in the English or the UK system but it is fundamental ultimately to whether the government can prosecute Assange. And it seems to me that is something that should be a part of that ultimate appeal and I hope it will because it does go to the fundamental issue of whether or not there's a crime to answer for. If our statutes do not recognize the capacity of the government to prosecute in this instance then it seems to me there's no basis for extradition. And I think the two are linked and require more than mere lip service to the fact that the US has an indictment. I would think the English courts have to look more into this. And I wanna say this, I think maybe the court accepted the diplomatic assurances of the US because they used to doing that in the ordinary case. Especially with this case of murder where the US pledges no death penalty it's become routine to accept those pledges. And the US does adhere to those. Federal death penalty is very limited and is almost never been used. And if a state commits to no death penalty that can be relied on. So maybe that came about, Alex is criticizing you saying it's shocking that they would just accept that so blithely but maybe it came about because that in the normal case there's not an issue. But obviously this is not the normal case. And so we have to look more differently. And since Jeffrey Epstein suicide I think we have to look carefully at whether the US does protect these inmates pre-trial. I still think it was an extraordinary decision. And as I said, it was one that did shake me and I can't quite bring myself to believe much as I would like to that the judges didn't realize when they made that decision that this is in fact an exceptional case an unusual case, not one to be treated in a routine way. But that was one panel of judges will probably get a wider bigger panel of judges in the future hearing. I believe one judge will be taken from that previous panel. And of course the Supreme Court can look at both decisions both the previous decision which you've already had the wrong decision in my opinion and whatever decision comes from this appeal that's coming. So we're very far from a final endpoint here. And I would like to believe that it's all going to turn out right in the end but Joe will confirm I've always felt that ultimately this case belongs in the United States by which I mean that it's something that will be argued over better in the United States than it will be here in England. Because here in England, this is still unusual territory for us. I think that it's a difference between two ways of thinking judicially and our systems meet in many ways but there are some differences and I'd agree with Alex that most likely in the end it's got to be decided here but I do think there's large scope for the UK courts to resist extradition if we can make these arguments understood in the English courts. Of that indisputably, I completely agree. And we say councils of despair are bad councils there are lots of arguments to be made. I hope they are made. I believe they will be made and I hope the courts hear them. I just have to say the decisions have been made up to now which have surprised me. It's a system and you never know where it's going to go but I too will have to have faith in the system on both sides of the ocean because otherwise you can't work as a lawyer and you can't serve a client if you have council of despair. And so Bruce, I had an overview question for you. I just wanted to get in and that is about not so much the judicial aspect of it and judges rulings but more on the part the legal aspect of the government's role in the US and talking about their hesitancy, I would imagine to have the SBNR Act tested against the First Amendment in the Supreme Court but that being balanced against the political will we've seen to permanently silence Assange and that's evidenced by the fact that the indictment against him in the US came in response to the CIA talking about plans to assassinate him and basically the Justice Department wanting to save face and embarrassment in the case of that happening by going the legal route instead. So how can the US government resolve their desire to silence Assange to punish him to make him an example while also avoiding the Supreme Court? Well, it really depends on the evaluation in the Justice Department as to whether they fear the statute can go down or be severely circumscribed. The US wants to have the ambiguity of the statute as a tool. It may very well fear it being cut back too much. And so that point of analysis, you know may actually affect the CIA's view of it as well because they too want this enforcement tool and if they recognize it will be cut down and I believe a conservative Supreme Court is a perfectly valid tool for that. If they recognize it can be cut back they may fear that and want to avoid that. And that's why there's so many plea bargains that take place in this field because the government knows these statutes are overbroad and may really go down legally and they don't want to lose the tool, frankly. So it's hard to predict exactly. As lawyers we can't be prognosticators but we have to push the tools we ethically can in hopes that other parts of the system will then cooperate. And I will say that sometimes the political actors in the government fear criticism from the CIA. It's not a government to itself unto itself but it does have some independent ability to affect the debate. And I think governments often fear coming into conflict with their own central intelligence agency. And that certainly was the case with Jonathan Pollard where the intelligence community reacted against him and in fairness to them he was a spy and he did spy. And that is one of the more significant breaches of trust in the government. It's different though than here where Julian Assange did not have those duties. So I believe that this debate will take place in the government when the case is challenged in the US and probably the sooner the better for that debate to take root. And remember it's already 14 years ago. I think that some of that anger within the intelligence community is gonna dissipate over time. I hope that's a good answer for you. That's the best I can get. Yeah, I would say that basically perhaps if Vault 7 hadn't happened which was in a huge exposure of CIA hacking tools and spying tools. And I think that that from the evidence we've seen that has come out really inflamed Mike Pompeo who was CIA chief at the time, et cetera and really ended any negotiations that were happening to release Assange. So. Right, unfortunately those political elements do affect things. Our courts don't follow that closely. Sometimes they're influenced by it. I don't think that'll be the case here. And but it's impossible to predict but I do think the court will treat this case fairly. And finally I would say I think there's a good deal of sympathy for Assange in the US. You know, when my article came out I've heard some criticisms but frankly more positive statements than others. Bruce you mentioned plea bargains and in a discussion we had previously you said that if the US brought, sorry if Assange's lawyers put the motion in now there could be a political solution based on that legal pressure and that solution could be that Assange accepts a plea for a lesser charge and maybe the computer charge for example serves his time in Australia and this is all over. But I said that what I know of Julian Assange is he would never admit to doing something wrong when he didn't do anything wrong. But you told him that he could take a plea but also say that he didn't do it to explain that. In federal courts we have what's called we have a plea system in which you can plead guilty though you maintain your innocence. You can accept the plea, accept the sentence but say I am innocent, I'm doing this to resolve this. That is available and he can say that and he won't be penalized by the court for doing it. It's an available commonly used tool in our system. And so he has that right, he can take that position and look I think in a case like this, Bradley Manning now Chelsea I think received a seven year sentence, I forget exactly. Julian has already served three years or so in Britain pending extradition. That's gonna come against this sentence I think an arrangement can be made. I think both sides have to compromise. It's an unusual situation and if Julian would like to try to bring an end to it I think he could find a way to do that with a high degree of honor as well. And I think the US wants to find a way to resolve it also. One last point here about, and then we'll wrap this up and I again, thank you both for this very interesting discussion on the question of whether we'll get a fair trial or not, you did bring up that presenting evidence could be difficult for Assange's side. There is a thing called state secrets privilege. I presume in Britain, I was similar, you cannot in an open court present classified information. So they'll close down the courtroom, they go into a skiff and the public and the press never gets to hear the evidence and the judge could come out and decide in favor of the government. Not necessarily, not necessarily. I remember the tradition of open courts. And in that instance, what will often happen is the case will be dismissed because the government won't want certain evidence to come out under the state secrets privilege. And then the court will say, well, if you're not gonna allow the evidence to be heard either privately or an open court, then the case can't go forward. And that actually has some of these cases end up and why there is a plea bargain because the government won't let certain evidence out in any forum and therefore the case will ultimately not go forward. And that's where the strength of a plea bargain lies. So that may very well happen. It's not that it's an unfair case that would favor Assange because the evidence won't be permitted by the government. The court will respect that and then the charge will either be reduced or thrown out. So that's- Well, if they hear it in private, they could decide to hear it in private. They do not hear cases in private in the US. That would be extraordinarily rare, only in the case where say, nuclear bomb information is being relevant to the case would such a thing happen. It will not happen. Well, in the case of Sabelle Edmonds, who was an FBI translator, she went to court and they cleared the courtroom and the evidence was presented in secret where the defense was not present. Only the prosecution, the government and the judge and the judge came out in favor of the government's case. That's my understanding of that. I'm really not familiar with that case and I can't comment on it. I can only say in a criminal case, the defense will always be present and will always have full access. I would be very, very surprised by the way, if we had a case in Britain held in secret, involving somebody who has even been described as a journalist. If Julian Assange was an actual spy, a British, somebody who had worked in the government got access to information, had been outed by informers or something of that kind, then I can imagine, in fact, there have been cases where trials like that have happened largely in camera, but I cannot imagine that something like that would happen in the case of Assange. That would just be extraordinary. I agree that will not happen here. It is alien to the US courts in general. Unfortunately, I can't comment on the example you gave. Right. Okay. Well, I want to say, Bruce, that I wrote a 13,000 word history comparing the Espionage Act and the official secrets. Alexander advised me on it. It was very helpful. It's a brilliant piece. Both of you, it's a great piece. I read that. I didn't mention this, Joe. I gave him a little bit of help. But it is a brilliant piece. I'm not saying that... Sorry, Joe, go ahead. Well, I was about to say, I didn't bring it up to fish for compliments, but since you were about to give me another one, please proceed. No, I was going to say, actually, to Alex, I was going to say, it's been a pleasure hearing his analysis. It really was very lucid, and very, very precise. And I enjoyed this thoroughly. So thank you. Yeah, well, the one thing... Thank you very much, Bruce. One thing that I missed in that 13 that you brought up, that's what I wanted to say, is I brought up the 1961 Amendment to the Espionage Act, which apparently changed the jurisdiction, based on this case in Poland, where a U.S. diplomat inside the U.S. Embassy, he was found in bed with another woman, the Post's services photographed him. They blackmailed him. He left the embassy, gave documents, classified documents to Polish security services, and he could not be charged under the Espionage Act, because at that time, as it was written, the jurisdiction was simply U.S. territory or the high seas. He had that removed, but it was not replaced, versus what you're pointing out, with any clear instruction. The assumption has been, because it is no longer restricted to high seas in U.S., towards that it's a global universal jurisdiction. Let me say this. Eliminating that doesn't change what I've said. The statute must affirmatively, clearly apply to foreign persons. Joe, with that, I can't really stay on any longer. No, I'd say we've been here for two hours, and I'm very, very grateful for both of your time today, especially Alexander's working day and night on the Ukraine issue, and I recommend anybody watches videos, because you'll get an education and a different kind of analysis than you get in the mainstream. Media Bruce, thank you for writing that piece, for being with us today. Elizabeth, thanks for being with us. Kathy, welcome back in Sydney, Australia, doing the excellent job producing this. And for CN Live, this is Joel Lora, and we thank you for joining us for today's program. We'll be back with another one very soon. Goodbye. Goodbye. If you are a consumer of independent news, then the first place you should be going to is Consolidated News, and please do try to support them when you can. It doesn't have its articles behind a paywall. It's free for everyone. It's one of the best news sites out there, and it's been in the business of independent journalism and adversarial independent journalism for over two decades. I hope that with the public's continuing support of Consolidated News, it will continue for a very long time to come. Thank you so much.