 Welcome to CN Live's daily video report on the resumption of the extradition hearing of Julian Assange at Old Bailey in London. I'm Joe Laurier. Well, the technical problems of the last couple of days were fewer today. We only had the morning's defense witness Eric Lewis speaking about 40% of the time as if he were under the Pacific Ocean. And it was also a very key moment so we couldn't understand what he was saying, which has made reporting this hearing quite difficult. In the afternoon, Thomas Durkin, the second defense witness of the day, his screen froze twice, forcing Vanessa, it's a default from her chair into a side room, presumably where she's speaking to technical people. She came back to announce that the problem was at his end, it was fixed, but it happened twice. She didn't warn him that while frozen he was still under oath and couldn't discuss the case with anyone. There was some very serious matters discussed in court today and it was the first time since the beginning of the hearing back in February that the government addressed what I have been saying for a long time now is the only real crime that they have on Assange. And it's a technical one and it's in my view and many people and all the defense witnesses. An unconstitutional part of the espionage act, which simply states that any person journalist or otherwise, who has unauthorized possession of classified material, and also and or disseminates it has broken the espionage act. So at this point in the early morning proceedings, James Lewis, the prosecutor for the US government, questioning Eric Lewis, the attorney who was a defense witness for the defense, Lewis, the prosecutor pointedly asked him at one point, whether it was any precedent against publishing, sorry, against prosecuting a publisher under the espionage act. And he said, Lewis that the right of free speech and the public's right to know we're not absolutes. This could be restricted if national defense information could threaten the security of the nation. Can journalists be prosecuted, he asked Lewis, the defense witness, who said in response that had never been done before, because of the First Amendment. He said the courts have to strike a balance between national security and the interests of free speech. And he turned by saying that this was very far from his original opinion in his written testimony in which witness Lewis wrote that legal precedents precluded prosecuting Assange. And in fact, the prosecutor is correct. Assange can be prosecuted. And the fact that no publisher ever hasn't, has never been prosecuted before is is key to the defense's argument. But it is not illegal one technically because this part of the espionage act does apply to any of us, not just a journalist that we possess and disseminate classified information that would even mean emailing a weak index document that's still considered classified to your friend you've broken the espionage act as well. This is how broad and ridiculous, basically, that part of the espionage act is, but it's still in there. It hasn't been challenged. Daniel Ellsberg, who I know is fond of saying the United States does not have an official secret act because of the First Amendment. Well, I think I would rephrase that as it shouldn't have an official secret act because of the First Amendment. It is still in there and it's not been challenged constitutionally. It's not been removed from the espionage act. So in fact, in effect, the US does have an official secret act. This can punish a journalist if it wants for disseminating classified information. This is the espionage act in its history. There have been journalists who've been prosecuted only for defying calling on the public to defy the military draft in the First World War. But there have been instances where FDR and Richard Nixon who actually imparned a grand jury in Boston, they tried to prosecute the two New York Times journalists published depending on papers that Dan Ellsberg had given them. And it was only when Ellsberg's psychiatrist office was broken into by Nixon's plumbers to try to get dirt on Ellsberg. And it was also revealed that his phones, Ellsberg's phones had been tapped that these two New York Times journals asked the government, and I got this story from Ellsberg himself, that the those two Times journals asked the government, Well, if you're tapping Ellsberg's phone, we've been talking to him on the phone. So are you tapping us case was dropped. Mike Revelle, Senator Mike Revelle, who I know and I've written a book with about his political career, was the senator that Ellsberg gave depending on papers to read them and put them in the congressional record at a committee hearing that Mike held the basement of the Capitol Building. And Mike told me back then when we were working on the book in 2008 that he feared at the time that he could be prosecuted. What the New York Times versus the US case that the Supreme Court ruled in the favor of the New York Times said was that the government could not exercise prior restraint, without telling me this paper you cannot publish this information, which is what the Justice, the Attorney General Nixon did sent an injunction to both the Times and the Washington Post saying you can't publish this. That was unconstitutional screw the Supreme Court decided, but they never said that after publication, someone could not be prosecuted on the espionage act for possessing and disseminating information that's why Nixon set up that grand jury panel. And Mike Revelle was a sitting senator was frightened when the in he he was able to release that information under the sixth clause, I can't remember the exact part of the Constitution but the speech and debate clause, which says that a no member of the legislature in the middle of a legislative act can be questioned about anything that he did either going to or from the Capitol or during the act it doesn't have to even be in the Capitol. If long as Congress is meeting somewhere. A senator could say anything he wants on the record any classified information. He cannot be prosecuted for that. There was an instance during the lead up to the war. After the invasion of Iraq that Dick Durbin the senator from Illinois said in the well of the Senate that if it weren't for the fact that we were bound by the classification of this information and the Senate intelligence community. I would have said that this war was a mistake and we shouldn't have done it well he was wrong he could have said it. He was protected. And he didn't tell that to the public. He feared that when he published the Pentagon papers as a book with beacon press in Boston, that Nixon go out could go after him and in fact that was the case by Richard Nixon decided not to go after sitting senator is that probably wouldn't look very good. I'm not telling you all the story because it's directly related to the Assange case in that the US can prosecute now they've been trying to hide this part of it because it's so controversial because it is conflicting with the First Amendment there's no As Dan Ellsberg said we we don't have an official secrets act because of the First Amendment well I say we we do have one because it's still part of the espionage act so Assange is being prosecuted for that and the government has been trying to evade that because it's so controversial and they tried to make this an issue of the only documents that he's being prosecuted for were the ones in which he revealed the names of informants. And as the defense witness last week Trevor Tim the president the executive director of the freedom of the press foundation, which was founded with Dan Ellsberg pointed out that there's, as I've been saying and writing for some time now there is no law against naming informants It's not ethical could be a terrible thing to do. It's not illegal these senator Joe Lieberman at the time of those leaks in 2010 the Afghan leaks tried to put a bill in the Senate to criminalize revealing names of informants, and it was defeated the Senate did not pass it if we're against the law there would be no need to introduce a bill making it against the law and the Senate rejected that but that's what the government has been going after. So today they finally brought up the issue of can be prosecuted journalists and unfortunately the answer to that is yes. So of course, a big part of today's testimony was about the ongoing issue of the politicization of this case. As you know probably the tradition act between the United Kingdom and the United States prohibits the tradition of a suspect based in a criminal. political trial. So, for the Assange defense team to establish for the benefit of Vanessa parades of the magistrate will ultimately decide this case that this is indeed a political case is is crucial to the defense so that's why this has come up several years ago during the resumption of this hearing and if both witnesses today dealt with this. And I thought that was a very strong point where Eric Lewis the attorney defense witness made a strong intervention by testifying about a memo that Attorney General William Barr has written a 19 page memo in which he is espousing this what what Lewis called a fringe theory the unitary investigative theory that goes that dates back to Cheney in the Bush administration promulgating this and he based that on his ideas from the Nixon administration that the President, according to this memo by bar it's really shocking, the the bar said the Attorney General's lawyers are the president's hand that the prosecutorial decisions are solely that of the president. This is King like powers that bill bar thinks any president should have in particular this one, Donald Trump, that Trump gets to decide who's prosecuted and who was not. And this is not as Lewis testify this goes against the entire history of the Department of Justice, where there's been always presumed to be a wall between the White House and the DOJ. So that the Department of Justice works based only on criminal law, not a political case where the president of course is not most senior political officer in the nation, and he's politically motivated. And we also heard I must say from Durkin in the afternoon he reinforced this idea by batting down in US. This assistant attorney Gordon Cromberg was named comes up every day. It's thrown in the face of the defense witness by prosecutor Lewis because that nobody has included in their testimony to 36 page affidavit that Cromberg put into this and one of the Cromberg was saying is that a grand jury is a protection against abuses of the system of political abuse of the judicial system. This is something that Durkin the lawyer from Chicago was on the stand in the afternoon said was not his experience and he's had 40 years experience 47 years experience as a lawyer, including six years I believe, working at the Department of Justice that they had it's very rare for a grand jury not to bring back an indictment he says it only happens every four or five years, and then especially in a national security case that a grand jury is not a protection against legalization of cases, and he, as well as Lewis and other witnesses for the defense have stated that this is a hierarchical system, and that the pressure comes down from and even Jeff sessions has on the record when he was attorney general said that this is not the case after Assange they've made no secret of this is a politically motivated prosecution of a journalist for publishing embarrassing damaging information to the reputation of the United States, revealing even criminal behavior and it was established for both witnesses that this decision is not this grand jury legal process and not just current this is my view, but that it is a decision that came from the White House to go after him, after the Obama prosecution decided not to prosecute Assange because they were they felt they would he was doing journalistic activity that the New York Times published the same material that WikiLeaks the exact same material. That's more or less the same time that's another story we can get into. And therefore they'd have to prosecute the New York Times it would not be proper to just go after Assange and they didn't do it. Of this whole issue about whether the case was closed or not is something that Lewis keeps harping on, and it's a semantic argument was their decision not to prosecute or not or was the grand jury it was left open. Why was it left open. He's trying to show that they never really dropped the case where all the defense witnesses pointing to a particular New York Times article from the sorry Washington Post article from the member November 2013, which quotes, Eric Holder and another the former spokesman for holder as saying explicitly that they did not prosecute Assange because he was engaged in journalistic journalistic activity that they considered protected by the First Amendment even though they could because it's still in the as I've been saying, they could do it, but they didn't because they knew that this really is an unconstitutional part of the espionage act and they didn't want to open that up where the Trump administration has clearly made a political decision to prosecute Assange, given the hostility that the Trump administration has to the press that's part of it. And there were other issues involved about Trump going after Assange because of the 2016 election. So let's move on now to the issue of the prison conditions for Assange and the sentencing just took up a lot of the testimony is also for the defense important to establish that Assange will not get a fair trial now Nils Meltzer, who I was not on the witness list but he has said numerous times that he will not get a fair trial, but you know to establish that in the court is a separate matter than even a UN special repertoire. So we saw a lot of testimony today about a sentencing and the defense trying to show that he will get a very long and unfair sentence for this, whereas the prosecutor Lewis on cross examination made clear that he said at one point that the longest sentence anyone has ever served in the United States for an unauthorized disclosure to the media was 63 months. He didn't cite what case that was, or if you did I missed it, but he then decided a case of Terry Albury a former FBI agent who share class right information with the press, and he received a four year sentence. So Lewis is also pointed out that Assange is only being charged with leaking secret information not top secret information. So he's trying to say that, and even called what Lewis had written what many have repeated, as we've reported that he's facing 175 years. So there was a lot of the testimony that dealt with the federal sentencing guidelines in the United States, and how they come up with the numbers of years that the guidelines recommend and there's always a minimum and a maximum that's recommended. So there was a lot of arcane discussion of that. But the idea of 175 years is the one that most people writing about this case have said even in the mainstream media that Assange faces, whereas Lewis was saying that that was just a defense sound bite, and that they know how much of a sentencing could get. And he cited these cases to show that people in similar cases to Assange only got four years or six years. So I don't know if the defense should rest sleep well tonight thinking that, oh, there are, he, Assange is only going to get four years or something because that's not something one should bank on, but that's the argument of the press here to say he'll get a fair trial. He's not going to be sentenced to a life imprisonment, which is what an 175 year sentence would in effect be for a 50 year old man. And then the issue came up of the conditions of the prisons. Lewis, the defense witness was talking about the presence of COVID-19 in the federal prison system. It's a huge problem in the United States right now, whereas Lewis shot back the prosecutor. He was asking how many cases are there in the Alexandria detention center where everyone agrees. Johnny Assange will be held if he's extradited to Virginia. And it turns out, according to Lewis the prosecutor, there are zero cases right now. There have been one by a new inmate and then it came back to, he was got a false negative, a false positive. So the prison conditions is an issue the defense wants to establish as being why he should not be extradited, sentencing the prison conditions. And of course, the whole issue of the First Amendment which finally came out into the open. We will resume tomorrow with two witnesses for the defense and they're going to be really interesting ones. One of them is John Goetz. He's a German journalist for the Spiegel. I don't know if he still works for the Spiegel, but he was at this dinner in London when they were working the Guardian and WikiLeaks and Julian who was there in London putting together the publication of the Afghan war diaries. And the prosecution is alleging that Assange made a statement at a dinner that the informants deserve to die because they were ratting on their own government or something to that effect. Goetz was present at that dinner. He has stated on the record in press reports that that was not true that Assange never said that. So we can expect for him to speak about that. And then in the afternoon, Daniel Ellsberg himself will be on the witness stand, the virtual witness stand from his home in Berkeley, California, and hopefully they won't be the same technical problems. This is what it's like to have a trial in a courtroom in London in the age of the coronavirus where there has to be a great distance from the witnesses could not travel to London to sit on the stand as they would have had there not been the virus. So we're going to look forward to Goetz and Ellsberg's testimony tomorrow and we look forward to bringing you a report on that. And before I go just want to please remind you to go to patreon.com backslash cn live and become a patron. Donate if you can't $5 a month. It's about the cost of a Starbucks cafe latte to keep CN live going. These video reports are regular shows. We're going to have another one on the weekend. So please support us if you like these videos. So until tomorrow, this is Joe Laurier for CN live.