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The Julian Assange Question: True Claims about Prison Conditions or Lies in Service of Martyrdom?

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Today and tomorrow, the United States will appeal Judge Vanessa Baraitser’s decision in the Julian Assange case that American prisons are too inhumane to house someone with suicidal tendencies safely. The US will argue several things about the decision, including that Baraitser had wrongly credited testimony of an expert that, like that of several others presented in Julian Assange’s extradition defense, was obviously misleading.

On Wednesday, judges said the weight given to a misleading report from Assange’s psychiatric expert that was submitted at the original hearing in January could form part of Washington’s full appeal in October.

Sitting in London, Lord Justice Holroyde said he believed it was arguable that Judge Vanessa Baraitser had attached too much weight to the evidence of Prof Michael Kopelman when deciding not to allow the US’s appeal.

[snip]

Delivering the latest decision, Holroyde said it was “very unusual” for an appeal court to have to consider evidence from an expert that had been accepted by a lower court, but also found to have been misleading – even if the expert’s actions had been deemed an “understandable human response” designed to protect the privacy of Assange’s partner and children.

The judge said that, in those circumstances, it was “at least arguable” that Baraitser erred in basing her conclusions on the professor’s evidence.

“Given the importance to the administration of justice of a court being able to reply on the impartiality of an expert witness, it is in my view arguable that more detailed and critical consideration should have been given to why [the professor’s] ‘understandable human response’ gave rise to a misleading report.”

The US government had previously been allowed to appeal against Baraitser’s decision on three grounds – including that it was wrong in law. Assange’s legal team had described the grounds as “narrow” and “technical”. The two allowed on Wednesday were additional.

One key issue is whether assurances the US offered to the UK that Assange won’t be held under Special Administrative Measures are worth the paper they were written on (they’re probably not).

The summary of the decision to accept the appeal said that the United States had “provided the United Kingdom with a package of assurances which are responsive to the district judge’s specific findings in this case.”

Specifically, it said, Mr. Assange would not be subjected to measures that curtail a prisoner’s contact with the outside world and can amount to solitary confinement, and would not be imprisoned at the supermax prison in Florence, Colo., unless he later did something “that meets the test” for imposing such harsh steps.

“The United States has also provided an assurance that the United States will consent to Mr. Assange being transferred to Australia to serve any custodial sentence imposed on him,” the summary said.

While the basis for refusing extradition — expanding on a precedent established with Lauri Love, whose Aspergers was far more severe and better established than Assange’s depression — may be controversial, the severe conditions in American prisons are not.

And that’s why the focus of Assange’s team over the past nine months and in the next few days will be so telling.

Assange’s team would need to look no further than Joshua Schulte — the accused source for the stolen CIA hacking tools who has been held under draconian Special Administrative Measures (which sharply curtail Schulte’s ability to communicate with anyone besides his lawyers and immediate family) for over three years — to demonstrate how WikiLeaks associates have been treated in US jails. Judge Paul Crotty recently rejected Schulte’s latest bid to end the SAMs before the case got reassigned — with no public explanation — to Judge Jesse Furman (Crotty must be getting close to going senior status, but Schulte also asked Crotty to recuse). In his order affirming the SAMs on Schulte, Crotty noted that the former CIA developer, “intentionally disclosed information he knows to be classified–including in a recently filed motion seeking declassification of that very information,” and prosecutors just warned that Schulte may face additional consequences for doing so.

In recent weeks, the defendant has, through standby counsel, attempted to file several documents on ECF that appear to contain classified information. Section 5 notices are particularly likely to contain classified information, since the statute requires the defendant to “include a brief description of the classified information” at issue, and prohibits the defendant from “disclos[ing] any information known or believed to be classified in connection with a trial or pretrial proceeding until notice has been given under this subsection” and the United States has had an opportunity to seek a CIPA § 6 hearing and, if applicable, an appeal from the Court’s determination under § 7. Should the defendant knowingly and intentionally publicly file or attempt to publicly file information “known or believed to be classified,” including as part of a § 5 notice, he could be subject to penalties.

Likewise Assange’s team could point to the case of Daniel Hale, who was jailed prior to sentencing because it was feared he would harm himself, but then was placed in the Marion Communications Management Unit, a less harsh regime restricting prisoners’ communications than SAMs, but nevertheless not something known to be justified by anything Hale did during pre-trial release, and something that exacerbates Hale’s isolation in prison.

Rather than focusing on these very uncontroversial issues, Assange’s team has spent the last nine months spinning wildly about topics other than US prison conditions. They did so, first, by falsely claiming that an article in which Siggi Thordarson reaffirmed one of the most damning things he said about Assange would doom the case against Assange, even though as a co-conspirator, Siggi is unlikely to be called as a witness. More recently, Assange’s team has embraced an article showing that CIA Director Mike Pompeo was unable to pursue a variety of measures to attempt to thwart the release of (still substantially unreleased) stolen hacking tools, even though the article proves that Assange lied wildly in his extradition hearing about when and why the US government changed its understanding of his actions and further shows that the US didn’t charge Assange in the face of Pompeo’s pressure, but only did so when Russia attempted to exfiltrate Assange.

Assange has a really good case to make about US jail and prison conditions.

Instead, Assange has spent the last nine months telling wild stories in an effort to make a man credibly accused of conspiring to hack US targets a martyr of journalism.

Ryan Grim’s “Gibberish” about Co-Conspirator Statements

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Something remarkable happened the other day when I was debunking (again) Ryan Grim for (again) misrepresenting the Siggi Thordarson story that I debunked long ago.

Ryan twice claimed the Federal Rules on Evidence are “gibberish.”

To be sure, these legal rules are gibberish, especially for those, like Ryan, whose beat has nothing to do with reporting on legal cases and so might not recognize the reference to the hearsay exception.

But Ryan also, obviously, not only didn’t recognize that I was making a factual observation about the way the indictment against Assange was charged and the rules under which evidence against him would be introduced at trial (if one ever happens), but responded based on an apparent assumption I was denying that co-conspirators flip on each other (Siggi did that ten years ago, not this year).

There’s an apparent belief that there would be a dramatic moment at trial where Siggi would take the stand as the single witness testifying that Assange did certain things with LulzSec and Assange’s lawyer Barry Pollock will get Siggi to explain that everything he told first the FBI and then prosecutors about Assange’s knowledge of his efforts to solicit hacks against US targets was a lie at the time, that in fact, Siggi really masterminded all of that and (more importantly for Assange) that Assange knew nothing about it and actively opposed it.

That scenario simply doesn’t understand the significance of the way DOJ charged the hacking, especially, as a conspiracy.

I’ve written about the significance of the parallel conspiracy charges in the Assange indictment before, but for the purposes of explaining the hearsay exception and other reasons it’ll be harder to discredit Siggi (who I agree is a liar) than people think, I’ll try again. Elizabeth de la Vega once provided a succinct eight-point description of how conspiracies get prosecuted that cuts through a lot of the legal gibberish.

CONSPIRACY LAW – EIGHT THINGS YOU NEED TO KNOW.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

The bold rule, seven, is actually rule 801(d)(2)(E) in the Rules of Evidence describing out of court statements by co-conspirators that aren’t treated as hearsay.

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

[snip]

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

That means, most basically, that anything Siggi said, “in furtherance of the conspiracy … during the course of the conspiracy” (for example, to recruit others to steal documents that WikiLeaks could publish) can be introduced at any hypothetical Assange trial without Siggi having to take the stand. Several of the statements about which (Assange boosters claim) Siggi has retracted his testimony might well come in as evidence against Assange without Siggi ever having to show up. And the way DOJ has constructed this indictment makes it less likely that he would show up to retract his testimony.

There are five kinds of Siggi statements relevant to the hacking charge against Assange. First, the statements he made online, largely in the chatlogs he provided to the FBI, as a member of WikiLeaks before he left WikiLeaks and sold them out to the FBI on August 23, 2011. Those are what would come in under a hearsay exception.

Then there are statements Siggi made in that initial period as an FBI informant in 2011, and then separately, the statements he made under an immunity agreement before DOJ charged this indictment. As I understand it the terms of those discussions are different, as a confidential human source in the first case but as a co-conspirator testifying with immunity in the second. Assange would undoubtedly point to the terms under which he cooperated with US prosecutors to impeach Siggi’s credibility, using them to say he said what he did only to avoid legal liability himself. But the most useful stories to tell about those two interactions conflict (for example, to undermine Siggi’s motive for sharing chatlogs with the FBI, it serves to claim that Siggi was trying to dodge his own prior crimes in Iceland, but to undermine the second, WikiLeaks is now claiming, Siggi never committed those crimes in Iceland).

Importantly, however, what Siggi told the FBI in 2011 and DOJ in 2019 (as distinct from the legal terms under which he did so) will only be introduced as evidence if he does testify, and in that case, to force him to hew to his earlier stories.

I fail to see any evidentiary basis for Siggi’s more recent comments to Stundin to come in unless he testifies; they’re hearsay. To present evidence that Siggi told FBI and DOJ what they wanted to hear and then went to two Icelandic journalists who hadn’t read the indictment to brag about doing so, you’d have to call Siggi as a witness and get him to say that under oath.

This brings me to what I presume is a prosecutorial strategy; it appears that DOJ gave the opportunity (and went to great lengths in an attempt to coerce, in the case of Chelsea Manning and Jeremy Hammond) for all people described as co-conspirators in the indictment to testify, with immunity, before trial. I suspect they attempted to do so to lock in their testimony in advance of any trial, exposing the witness to perjury charges if the testimony changed (as Assange boosters claim Siggi’s has). I assume that, if prosecutors had a choice, zero of these co-conspirators would be called as witnesses at trial, but instead their co-conspirator statements would be introduced under the hearsay exception (though I expect that Manning would get subpoenaed to appear at any hypothetical trial, but possibly not called, by both sides given that she didn’t testify).

But if Siggi shows up (or anyone else who already provided presumably sworn testimony) as an Assange witness, he would be on the hook for the earlier statements he made to investigators that deviated from his new statements. That is, if Siggi testified contrary to what he already told FBI and DOJ, that would normally entail him being present in the US and therefore readily available for prosecution for a crime — perjury, at least — committed as an adult.

To be fair, Siggi’s arrest by Iceland improves Assange’s chance of calling Siggi as a witness. That’s because he would be otherwise unavailable to Assange (because he’s in prison), so Assange could ask to take a Rule 15 pre-trial deposition of Siggi in jail. While that would still allow prosecutors to demonstrate that Siggi’s hypothetically changed sworn testimony conflicts with his past sworn testimony, his current arrest and the need for extradition would lessen the legal risk for Siggi of reversing his past statements. Still, that that would require Assange wanting to focus even more attention on why he chose to associate with a serial fraudster and convincing a judge his statements were material.

There’s one more rule that bears notice to that explains why not a lot of co-conspirator witnesses are going to want to show up and testify to help Julian Assange, if their truthful testimony would help him. De la Vega’s rule six explains that, “once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.” That means early co-conspirators who did not take steps to leave the conspiracy are on the hook for any of the later overt acts currently charged or the ones DOJ might charge. It would be child’s play to extend the parallel conspiracies — which currently extend through 2015 — through Assange’s 2016 publication of files GRU stole and through Joshua Schulte’s alleged hacking of the CIA, just the SysAdmin hacking the CIA that Assange used Edward Snowden’s example to solicit in 2013. Because Schulte declared an “Information War” on the US and attempted to leak more classified information from jail, the conspiracy could credibly be claimed to have extended through October 2018, meaning statutes of limitation might not toll until 2023.

The sustained hoax that that Stundin article shows Siggi retracting his testimony which (the claim goes) undermines the CFAA charge against Assange depends on several assumptions: first, that he actually did reverse his testimony (he did, but only on one small issue, and he also reaffirmed the most important claim he made about Assange), second, that there aren’t a slew of more credible witnesses (like Edward Snowden, and even more credible people the indictment doesn’t name) against Assange. But most importantly, the Assange boosters believe that this article — or some other kind of proof that Siggi retracted (a small but not the most damning part of) his testimony against Assange — will be introduced as evidence at the trial.

It’s hard to imagine how this article would. It’s hearsay. The reason claims made by pathological liars (or even more credible witnesses) to journalists can’t be introduced at trial via the article a journalist writes is because those claims can’t be tested in court. Unless Assange wants to argue that he and Siggi remained in a conspiracy when Siggi made the claims to Stundin, and the claims made to Stundin were part of that conspiracy, but that’s probably not going to help Assange.

DOJ has built the indictment against Assange such that they won’t have to rely on many uncooperative witnesses who already pled guilty under oath to participating in the conspiracy. And if those uncooperative witnesses appear as witnesses for Assange, they face the risk of new legal jeopardy, whether perjury charges or renewed exposure to the conspiracy.

I’m not celebrating that fact. I’m observing it. Julian Assange is in no way unique on this front.

But virtually none of the people claiming Siggi’s purported retraction helps Assange are even familiar with the content of the indictment, and fewer still seem to understand that Siggi is highly unlikely to be the dramatic witness at trial they want him to be. If those details appear to be “gibberish” to you, it’s probably a caution against accepting claims you want to be true without first understanding the legal rules behind the gibberish.