All right, y'all, welcome to the Scott Horton Show.
I am the Director of the Libertarian Institute, Editorial Director of Antiwar.com, author of the book Fool's Errand, Time to End the War in Afghanistan, and I've recorded more than 5,000 interviews going back to 2003, all of which are available at scotthorton.org.
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The full archive is also available at youtube.com slash scotthorton show.
All right, you guys, introducing Trevor Tim from the Freedom of the Press Foundation.
That's freedom.press.
Boy, did they ever get that URL right, eventually.
Of course, he was an expert witness in the Julian Assange trial.
He's a lawyer and, of course, an expert in First Amendment law and all of this stuff.
We talked with Kevin Costello a little bit about what had happened, but Kevin had written this great write-up at Shadowproof called Trump's War on Journalism Takes Center Stage at Julian Assange's extradition hearing.
It's a great retelling of Trevor Tim beating the crap out of the prosecution on their attempted redirect at the Julian Assange extradition hearing there in England a couple of weeks ago.
So, I appreciate you joining us on the show again, Trevor.
How you doing?
Good.
Thanks for having me.
Always a pleasure.
Great to have you here.
Last time we spoke, it was on the eve of this hearing getting started, this set of hearings getting started, and it's really been extremely eventful in so many ways and so much important testimony.
I've been doing my best to interview Kevin and Joe Lauria, and we're running everything we can about it, of course, at Antiwar.com, including Craig Murray's great write-ups of the testimony every day and everything at Consortium News and all of that stuff.
It's not like I was surprised at all, but I was so pleased to see just how severely you had defeated the prosecution when they attempted to come after you during your testimony here.
So, I was wondering if we could start today by you retelling that.
Essentially, I think you start with a statement, right, and then they come after you after that.
Is that how it works?
Yeah, pretty much.
I mean, so I had submitted written testimony a couple months ago, and it was actually unclear whether I was even going to testify or not, or they were going to just read it into the record.
That's actually what happened to probably half a dozen or a dozen witnesses this week because the schedule was so packed and there was only a limited time in the hearing.
I ended up being the third witness, and so what happens was—so, I wasn't actually in the U.K.
I did this all remotely because of the pandemic, but the defense, Julian Assange's lawyers, got about a half hour to basically walk me through my whole written statement, and essentially what I talked about in my written statement was the fact that the government makes it out to be some sort of malicious anomaly that WikiLeaks was asking the public to submit documents to their secure submission system back in 2010, and so I kind of laid out how actually that's pretty much what every single news organization does these days.
They actually use, or a lot of them use, SecureDrop, the software that we developed at Freedom of the Press Foundation, which is essentially an open-source version of a secure whistleblower submission system, and the government is essentially claiming that this type of conduct is illegal when it's basically what news organizations are doing every single day.
We talked about that and a few other things, but then what happens is the prosecution gets to cross-examine you, and so they spent about an hour trying to poke holes in my testimony, and obviously I'm a little biased, but I think when it was all said and done that I poked more holes than theirs, and I was thankful for the good reviews from Kevin and Joe and many others, but it remains to be seen whether I or any of the other witnesses have convinced the judge to potentially stop this extradition in its tracks.
Yeah, I mean, well that's a whole other set of questions there, which I think, as we discussed before, it's a matter of politics, not law at that point, so we'll see.
I think so.
It's also a situation where it's a case that's being paid attention to all over the world, and this is just a magistrate judge, and so I think that type of pressure on a lower court judge, they're often going to side with the government.
Maybe this judge is different, and maybe she does rule against the extradition, but the important thing is that the defense team got all this evidence on the public record, so when it goes to the appeals court, and when it goes to the high court in London, then potentially they have a good shot of winning appeal.
Yeah.
Meanwhile, you know, much of the testimony, I don't want to get too sidetracked on this, but we've got to mention about how this guy is treated as though he's Ramsey Yousef, the first World Trade Center bomber or something already, when he's being held for skipping bail on a charge that was never charged, and a whole train of argument that's already been dropped about this bogus Swedish sexual assault thing, and yet they're acting like, you know, they're keeping him in this glass cage in the court as though he's, God, Mohamed Morsi, right?
The Muslim Brotherhood short-term president of Egypt there in his bogus trial, or as though he's some kind of al-Qaeda suicide bomber that is going to, you know, kill the judge with his bare hands if he's not, you know, kept locked in a cage, even in court, and this kind of deal, I mean, boy are they making an example out of him.
Now, you know what?
What if the high court in London or in DC ends up springing this guy after he's been on house arrest for, what, seven years, and then in solitary confinement and special administrative measures and all of these punishments for another couple, at least, by the time, if he is extradited, then by the time his conviction gets to the Supreme Court, it'll be another five or ten years gone by, or who knows what, and so even if they end up setting him free, it's already a fate worse than death, and they've made their point.
It's so true.
I mean, you know, the appeals process in the UK could go on for years, for all we know, and then if he ends up does, you know, he does get extradited to the U.S., then the appeals process will go on for years here, and, you know, the prosecution, or sorry, the defense has made the point that, you know, he's basically being held in solitary confinement right now.
There's clearly a lot of mental health issues going on, and, you know, he's basically being treated like a murderer, you know, before he's even, you know, convicted of any crime.
Well, no, I mean, even a murderer is not treated like this, right?
Yeah, he's being treated like he's, you know, Ted Kaczynski, the Unabomber, something like that, like the most extreme outlying case in essentially supermax conditions, where you could kill 10 people and still just be in the regular lockup with other humans.
And we know he's probably headed to supermax prison in the United States if he gets sent here, and that's actually what some of the testimony was about in the past week about the deplorable conditions in prisons like that in the U.S., but it remains to be seen whether it moved the judge.
Hold on just one second.
Be right back.
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All right, now, so back to some of the arguments that you got into here.
One of them was really important that it doesn't matter whether anyone, including Assange, characterizes him and, you know, his relationship to the world as a journalist, that all people have the right to free speech, to disseminate whatever it is, all those things.
The First Amendment is overly broad, in that sense, on purpose.
Quite deliberately it was, you know, written so that you don't have to be a journalist, you just have to be engaged in the act of journalism.
Yeah, absolutely.
I mean, this was a big point that the prosecutors tried to make.
They were saying, like, look, look at this press release by the Justice Department.
They're saying, Julian Assange isn't a journalist, and so, therefore, they're not going after journalists, and they won't use this to go after journalists.
But you know, it's totally misleading what they're trying to do.
I mean, so first of all, you know, the U.S. government does not issue press passes to who it considers and doesn't consider journalists.
Thankfully, we live in a country where, you know, the First Amendment guarantees rights to the press, but it doesn't define who the press is.
And in fact, you know, you can go back all the way to the 1700s and the founding of the country where, you know, oftentimes the press, quote unquote, were anonymous pamphleteers, like, you know, most famously Thomas Paine, but there were many others, where there were just individuals expressing their First Amendment right to publish information in the public interest.
And so this is, you know, the argument that critics of WikiLeaks often get into.
They're like, oh, well, you know, I don't care about this prosecution because Julian Assange is not a journalist.
It doesn't matter if you consider Julian Assange a journalist or not.
What matters is the actual charges in the indictment.
And what they actually charged Julian Assange with is, you know, basically three things, or the vast majority of the charges deal with three things.
Number one, receiving or obtaining national defense information or classified information.
A act that, you know, regular quote unquote journalists do all the time.
You know, there is no provision in the Espionage Act that says, you know, if you meet this definition of journalist that you don't count under this law.
It's just saying that essentially it is illegal to do so.
Then there is the conspiracy charges, which is essentially the U.S. government saying, oh, well, Julian Assange was talking to Chelsea Manning over a period of weeks and was trying to encourage her to give him more documents.
Now, we know that this is also behavior and actions that regular journalists engage in all the time.
And when you look at the facts under those counts, it is literally just conversations about the documents that Chelsea was handing over and an implied statement essentially asking for more.
And then there's the third set of charges, which is the actual publishing of some of the cables.
Again, publishing national defense information is what journalists often do, whether they're at the Washington Post or the New York Times.
So, you know, let's pretend, for example, that we don't even think that Julian Assange is a journalist.
Again, it doesn't matter.
What he is charged with is journalistic activities.
And if he is convicted, those are the activities that will essentially have been deemed illegal by the courts.
None of these things have ever been prosecuted for in the United States in modern history.
And so what the Justice Department is trying to do is saying like, look, we're not prosecuting a journalist.
But what they are doing is trying to criminalize journalistic behavior so that the next time they can prosecute journalists.
And it is an incredible danger for anybody who cares about press freedom in the United States.
Yeah.
And on the encouraging thing, I mean, can you give me the nth degree of say?
I mean, we all know that most Charlie Savage stories are just stenographer type behavior, you know, on behalf of the state.
But occasionally you have the New York Times or the Washington Post really go after something important.
Say like a long time ago, James Risen, before he was a completely discredited Russiagate truther, had done that story about the CIA leaking atomic bomb blueprints to the Iranians deliberately just to frame them for having them, which didn't work anyway because the Iranians just threw him out.
But so he had to really go after that story.
So and in fact, I guess a man was convicted, I don't think credibly necessarily, but somebody was convicted of leaking that story to James Risen.
But so like in that example, and I don't mean like specific and truthful, but just like hypothetically in a case like that, where a New York Times reporter is really going after a story he's not supposed to have, just how far might they go to, quote unquote, conspire with their source to obtain secret information and how far can they go before they actually would, you would agree, even maybe actually cross the line into what the government is claiming about Assange here, something like that.
Does that make sense?
Yeah, absolutely.
I mean, look, the line is well established by the Supreme Court and other courts for the past, you know, five or six decades.
Journalists have a First Amendment right to talk to their sources.
They have the First Amendment right to obtain information that was illegally obtained by somebody else.
So in this situation, or countless other situations, yes, it's true that Chelsea Manning was likely breaking the law by accessing this classified information and handing it to Julian Assange, just like it was likely that countless other sources were breaking the law to hand information to the New York Times.
But what the Supreme Court has clearly said is that as long as reporters don't directly or aren't directly involved in the crime of taking that information, then they have the First Amendment right to receive that information and publish that.
Well, and then but that's what they want to fight about is the word directly.
So in other words, you're saying to me that you would at least concede that the law says that Assange went in there with a fake mustache and said, out of the way, Chelsea, and typed in the password and downloaded the stuff that, yeah, they could get him on that.
Exactly.
I think that is definitely the line.
That is the line that the court has drawn.
Okay.
But they're saying that, look, he did do that, only he did it from somewhere far away rather than walking into the building.
You don't need to because it's all, you know, fiber optic lines and so forth.
So instead, he just, you know, conspired with Manning in a way that's equivalent to that.
Now you're saying no, there's a stark line of not equivalence there.
No, they probably want everybody to think that that's what they're alleging, but they're not alleging that at all.
Okay.
For like 17 of the 18 charges, they are purely talking about the conversations that they had and the fact that Julian Assange and Wikileaks had publicly said like, hey, we want whistleblowers to come to us and leak us documents.
And then in conversations online, Julian Assange allegedly, you know, encouraged Manning to do more.
You know, they don't ever allege that Julian Assange hacked into the Defense Department or the State Department himself or that he even attempted to.
So they really are invoking this in the vaguest sense that just...
It's not even vague.
It's kind of almost imaginary.
There is one single charge in the indictment that it contains 17 or 18 charges that talks about the conspiracy to violate the Computer Fraud and Abuse Act.
And that comes from like 30 seconds of conversation in the weeks and weeks of conversations that Julian Assange and Chelsea Manning have where, you know, this kind of gets into the weeds, but essentially Chelsea Manning handed it over.
She's like, hey, you have any experience with hashes, which is essentially an encrypted password.
And Julian Assange, you know, said, sure, yeah, we do.
And Chelsea Manning apparently gave him part of this hash, which then, you know, nothing ever happened with.
And they don't even allege that Assange ever, you know, cracked this password or anything.
And in fact, there was testimony in the court that it would be impossible to crack this hash because the only thing that Julian had was part of it.
But so they're trying to take this very tiny, tiny fig leaf of like a very brief conversation about, you know, potentially helping crack part of a password, which never actually happened, and making Assange seem like he kind of hacked all of these databases and he's a hacker and not a journalist, when that's not actually what they're alleging in the indictment.
They're alleging that Chelsea Manning did it all and that Julian Assange was just talking to her and received the documents.
So they're really trying to play this kind of hide the ball game with the public and the court, where they're pretending it's something that it's not.
So in other words, as far as the encouraging goes, you're arguing and you're a lawyer, and you're arguing that no, this is 100% exactly the same as the New York Times submission page.
Hey, got a secret you want us to know?
Go ahead and let us know.
That's no different than what they're accusing Assange of here on that part, right?
That's that's totally true.
Okay.
And then on the on the hacking thing, we know for because I just interviewed Kevin about this the other day, we had the expert who was going off of all the evidence from Chelsea Manning's court-martial that, as you just described it, this whole password cracking thing never went anywhere at all.
The rainbow tables and this and that never amounted to anything.
And so they actually have nothing there.
And so they have nothing times nothing.
They have nothing times nothing, nothing, but they are trying to take that nothing and blow it totally out of proportion to get the judge scared and to essentially bring on all these other totally unrelated charges about publishing and receiving information.
And they're kind of using this as as a smokescreen to essentially criminalize journalism.
And, you know, it's, it's, it might work.
We don't know yet.
But we will find out soon because the judge seems to have indicated that that she's going to make her decision fairly quickly after the hearings are over.
I like this part of Kevin's right up here, where Lewis, the prosecutor, says, why should your opinion be preferred over the opinion of courts in the United States?
And then you just say, my opinion is in line with previous court opinions.
There's never been a publisher charge in this manner before.
Supreme Court is wholly on the side of Assange in this case.
Yeah, that's a direct quote.
And it's it's totally true.
It's almost like the, you know, the the the prosecution is a barrister in the UK who is representing the US.
So I don't know how familiar this barrister is with US law.
But he may have been under the impression that there was some sort of precedent that would allow the US to do this when in fact, the precedent is totally on the other side.
It is on the side of Assange, and almost universally so.
And so, you know, I had to point that out to him in court.
And now I think we talked about this before.
But can you refresh your memory about there have been two or three times where they started to charge people like this, where they strongly considered charging people like this, and they had to back down.
And that includes the Obama government being afraid to go this far against Assange himself.
But there were some times where because, you know, for the background, of course, this is all Woodrow Wilson's fault, just like everything in the world is Woodrow Wilson's fault.
The Espionage Act of 1917 says that if Trevor Tim disseminates secrets, then you can go to prison.
It's just that they've never successfully prosecuted anyone for that.
But they've never really had to test it all the way either.
I'm not sure because you say that the courts have ruled on some of this, but I don't understand.
Well, they have this law on paper that essentially says, like you mentioned, the Espionage Act, it's over 100 years old, it says that anybody who has obtained or has received classified information and transmits it to others is committing a felony.
And the reason that the government has never attempted to use this law against a journalist or any other private person is because it's patently unconstitutional.
They know it's unconstitutional.
They know it's a violation of the First Amendment.
And if they were to ever try to charge a reporter for the New York Times, the law would get struck down.
And so, so far, they have chosen not to.
There's many times where they've threatened to use this law to potentially scare reporters or have thought about using this law to prosecute reporters.
But ultimately, they've decided that, yeah, this is a violation of the First Amendment, and we can't bring these charges, including the Obama administration, which had a horrible record on whistleblowers, but at least understood that bringing charges against WikiLeaks or Julian Assange, which, of course, they hated Julian Assange, but even they decided that actually this would violate the First Amendment.
It would allow the government to prosecute other reporters.
And so we're not going to do it.
But the Trump administration, of course, threw all that out.
Donald Trump hates the press.
It's talked about in private how he wants to jail reporters.
And so this is a perfect opportunity.
Use an unpopular defendant who maybe people won't pay attention to the government using the Espionage Act because a lot of people don't like Assange, and create a precedent which, once it's on the books, it's a lot easier to go after all the reporters Trump hates.
So, you know, it's fairly obvious when you look at it, what they're doing.
But unfortunately, because this case isn't getting tons of attention, many people might not know about it.
You know what, if the shoe was on the other foot, like they were all prosecuting the Russiagate truthers at the New York Times and the Washington Post, I might look the other way.
But they're focusing on my hero instead.
So here I am.
But so anyway, I'm just being facetious.
I don't really mean that.
But I do.
Well, I know you don't.
I know you're joking, but it's actually there's a good point in there, which is that, you know, everybody who was obsessed over the Mueller investigation and potential Russian interference or talking to Trump campaign officials, go back and read all the articles about that investigation.
All of them, or the vast, vast majority of them, contain highly classified information.
So all of those reporters and all of those people on Twitter who were gleefully sharing all of these Russiagate articles were technically violating the Espionage Act themselves.
And so it is actually in their best interest as well to defend Assange, even though they hate him, because his case will actually make what they are doing illegal as well.
Yep.
But no, they're way too short-sighted.
They'd rather cut off their own nose to spite some other guy's face.
So they are.
All right.
Now, so wait a minute, man, because I like the First Amendment a lot.
And I even know all five thingies in there and everything, except that it doesn't say anything about publishing official government secrets.
So you're relying on court decisions between James Madison and now to say that this is plainly unconstitutional.
But so which decisions are those and what do they say then?
Well, you know, there's a lot of decisions throughout the years that touch on the ability of journalists to publish stolen information.
I think two are most relevant here.
Number one, the Pentagon Papers case where the Nixon administration tried to censor the publication of the classified study on the Vietnam War, which Daniel Ellsberg leaked, where the Supreme Court goes into quite extreme detail about the Espionage Act and how it shouldn't be used against journalists and how they have, if anything, the First Amendment was written explicitly to publish information that the government doesn't like.
But then there's also another case, it's actually about 20 years ago called, not a lot of people know about it, it's called Bartnicki v.
Vopper.
And in this case, a source essentially wiretaps to other people who are, I forget the exact backstory, but potentially engaging in corruption, something newsworthy.
The journalist knows that their source illegally obtained this information, but the journalist didn't participate himself in this action.
And so, you know, the government essentially tried to bring, the state government tried to bring charges against the reporter for publishing this illegally obtained information, and the Supreme Court ruled that no.
In fact, as long as the reporter did not actively commit the crime of wiretapping himself, and that if a source gave it to him, it's his First Amendment right to publish it.
And this is kind of a cornerstone First Amendment case, which the government is, of course, pretending it doesn't exist.
And so, it remains to be seen how American courts will interpret this case when it comes to Assange, but in my mind, it's black and white.
This case means that Julian Assange, what he did was not illegal, and hopefully the courts will see it the same way.
Yeah.
All right.
Now, have you been able to watch the live hearings I was just reading this morning from Craig Murray's write-up of what was supposed to have been Noam Chomsky, Patrick Coburn, and Andy Worthington's testimony that was instead, as you referenced earlier, simply submitted in writing, where the court didn't have to hear it all read out loud, which is really unfortunate, but I wonder if you knew about that.
Yeah, I did see that today.
I haven't watched any of the proceedings.
They did not give witnesses a video link before their testimony like they had promised to.
I did get a link afterward.
I didn't get to watch yesterday's testimony, but there's not a lot of people watching this trial because they didn't let the public watch.
There's only a few journalists who are regularly covering it, and so unless you're following those journalists like Kevin Gastola, you might not hear about it, and that's a real shame as far as I'm concerned.
Well, and especially Patrick Coburn, I imagine was going to talk about the Arab Spring and some of these things, the long-term effects the WikiLeaks had on the Iraqis refusing to let Obama renegotiate the Status of Forces Agreement and stay in Iraq in 2011 and all these important things that came from that.
They blamed that on the rise of ISIS, but we all know that it was support for the bad guys in Syria next door for a few years that created ISIS, not just leaving Iraq.
That's half an argument, but anyway, I'm sure he was going to talk about the import of that, and of course Andy Worthington is the world's greatest reporter on Guantanamo.
Well, at least journalist on it.
I don't know.
I guess Carol Rosenberg in terms of like the day-to-day down there can't be beat, but you know what I mean.
The great crusader against the injustice at Guantanamo Bay, and of course Noam Chomsky, who's sort of the dean of leftist academic foreign policy analysts.
I was actually just getting to his written testimony there where he's talking about the political nature of what Assange is doing and how that is differentiated in law from espionage so clearly.
Yeah, I mean it's a shame that none of those people were going to actually get to testify.
They do have written testimony, which I would encourage everybody to read, but yeah.
You know, I just found this, Trevor.
It's AssangeCourt.report, and they're keeping the, apparently, although 404, this page does not exist, bad link there.
I clicked on witness statement Tim, and there's nothing there, but I'll try again.
We'll see if we can get that worked out, and then I'm actually really happy to see this here, and it makes me think I can run Coburn's testimony and yours and Ellsberg's and whoever at antiwar.com as standalone articles, too.
Or, you know, your initial statements there.
Yeah, definitely.
My statement's somewhere.
I'll find it for you.
Unfortunately, I have to run because I have another interview to hit, but it was awesome talking to you.
Okay, great.
Well, thanks again for doing the show, Trevor.
Really appreciate it a lot.
Yeah, no problem.
Talk to you soon.
