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+ | === PAGE 32 === | ||
+ | * " | ||
+ | |||
+ | 149. The New York Times published on 25 July 2010: | ||
+ | |||
+ | * "The Times and other news organizations agreed at the outset that we would not disclose -- either in our articles or any of our online supplementary material -- anything that was likely to put lives at risk or jeopardize military or antiterrorist operations. We have, for example, withheld any names of operatives in the field and informants cited in the reports. We have avoided anything that might compromised American or allied intelligence-gathering methods such as communications intercepts. We have not linked to the archives of raw material. At the request of the White House, The Times also urged WikiLeaks to withhold any harmful material from its Web site." | ||
+ | |||
+ | 150. The New York Times magazine published on 26 January 2011: | ||
+ | |||
+ | * " | ||
+ | |||
+ | https:// | ||
+ | |||
+ | https:// | ||
+ | |||
+ | === PAGE 33 === | ||
+ | |||
+ | * "As for the risks posed by these releases, they are real. WikiLeaks' | ||
+ | |||
+ | 151. The aforegoing contrasts the actions of the defendant with those of reputable media outlets. He is described as a source. He was warned not to publish the names of informants and others in danger if they were identified. He, according to his former media partners, deliberately chose to do so (in contradistinction to what any self-respecting and professional journalist would do). | ||
+ | |||
+ | ==== C. Abuse of Process - Zakrzewski ==== | ||
+ | |||
+ | 152. If it is alleged that the particulars contained in an extradition request are materially inaccurate, the Supreme Court has accepted it may amount to an abuse of process. However, even this narrow area of discretion operates so as to preclude the extradition Court from adjudicating upon disputed matters of fact going to the conduct alleged in the requesting state. | ||
+ | |||
+ | 153. Thus, in Zakrzewski v. Regional Court in Lodz, Poland [2013] 1 W.L.R 324 the Supreme Court (per Lord Sumption at §13, emphasis added) set out the conditions in which the Court' | ||
+ | * 153.1 Firstly, the jurisdiction "is exceptional" | ||
+ | * 153.2 Secondly, the true facts required to correct the error or omission "must be clear and beyond legitimate dispute" | ||
+ | * 153.3 Thirdly, the error or omission must be material to the operation of the statutory scheme. | ||
+ | * 153.4 Fourthly, the sole juridical basis for the inquiry into the accuracy of the particulars in the [warrant] Request is abuse of process. The materiality of the error in the warrant will be of critical importance. | ||
+ | |||
+ | 154. There appear to be three areas of potential Zakrzewski abuse: | ||
+ | |||
+ | === PAGE 34 === | ||
+ | |||
+ | === PAGE 35 === | ||
+ | |||
+ | === PAGE 36 === | ||
+ | |||
+ | |||
+ | 168. Such acts are " | ||
+ | |||
+ | 169. The defendant' | ||
+ | password hash [§166], in order to obtain unauthorised access to an account in a which | ||
+ | would have allowed Manning to log onto a classified DOD account in a manner which | ||
+ | would make it more difficult for investigators to identify her [§168, 171]. | ||
+ | |||
+ | 170. The superseding indictment is brought on the basis of the rule of law and not to prosecute the defendant for his political opinions. A motion for selective prosecution (which could be brought on the basis that the prosecution was brought for a discriminatory purpose) may be filed if the defendant wishes to challenge this [§l 7, §68]. | ||
+ | |||
+ | 171. lf extradited, the defendant may challenge the charge against him at first instance with one appeal as of right, and further discretionary appeals as far as the Supreme Court [§67]. | ||
+ | |||
+ | 172. lf extradited, the defendant may challenge the indictment on the basis that his conduct | ||
+ | was protected by the free speech provisions of the First Amendment, or that the charges | ||
+ | are “void for vagueness”, | ||
+ | |||
+ | I73. Bias among potential jurors is remedied by a robust jury selection process (far more | ||
+ | rigorous than that which would be afforded to the defendant in England) and by the large | ||
+ | Size of the Jury pool in Northern Virginia [§§72-81]. | ||
+ | |||
+ | 174. After the guilty pleas of Ms. Manning, a " | ||
+ | |||
+ | 175. Mr. Boyle’s assertions to the continued incarceration of Ms. Manning and the nature of | ||
+ | her summons before the grand jury are disputed and have already been litigated unsuccessfully, | ||
+ | |||
+ | 176. Even if, therefore it were perrmissible litigate an alternative construction of the US law | ||
+ | under which the defendant is indicted, the scope of American criminal law in this case is not clear beyond legitimate dispute and could not therefore amount to a __Zakrzewski__ abuse. | ||
+ | |||
+ | 177. The first head of __Zakrzewski__ abuse identified by the defendant must fail because, **first** | ||
+ | this court should not entertain rival constructions of US law under the heading of abuse | ||
+ | of process and, **second**, because the facts relied on by the defendant are not clear beyond | ||
+ | legitimate dispute. | ||
+ | |||
+ | 2. **Most Wanted** | ||
+ | |||
+ | === PAGE 37 === | ||
+ | |||
+ | 178. As to the most wanted lists, the defence contention is a simple evidential dispute, of a | ||
+ | type that the extradition courts should not, indeed cannot, entertain. | ||
+ | |||
+ | 179. The defendant submits that the allegation that Ms Manning’s disclosure was given in | ||
+ | response to the Wikileaks “most wanted" | ||
+ | |||
+ | 180. This assumes that the US prosecution is somehow bound to accept the account given by Ms Manning in her own defence or mitigation. As need hardly be said, this is not the | ||
+ | position. After Ms Manning' | ||
+ | that the plea was voluntary and grounded in fact. This was a limited enquiry into the facts | ||
+ | which Ms Manning had chosen to admit and she was not subjected to exhaustive | ||
+ | questioning about the offences or surrounding circumstances [Kromberg l §§142-3]. | ||
+ | Thereafter Ms. Manning refused to testify before a grand jury and has been found to be | ||
+ | in contempt [§§145—156]. | ||
+ | |||
+ | 181. The second affidavit of Gordon Kromberg (§§12 and 13) maintains the factual position | ||
+ | of the prosecution Ms. Manning __is__ alleged to have responded to requests made in the | ||
+ | most wanted list. | ||
+ | |||
+ | 182. Therefore: | ||
+ | |||
+ | 182.1 The defendant’s submissions as to this issue amount to an evidential dispute of the | ||
+ | kind that is irrelevant in extradition proceedings. | ||
+ | |||
+ | 182.2 Because the defendant’s submissions represent an evidential dispute there is no | ||
+ | matter of fact relied on by the defendant in furtherance of the abuse argument | ||
+ | which is clear beyond legitimate dispute (Zakrzewski [supra]). | ||
+ | |||
+ | 3. **Other areas** | ||
+ | |||
+ | 183. The final area of Zakrzewski abuse identified in the SOI is that there are “other areas” | ||
+ | which could be “undermined by hard evidence”. These are not identified and so cannot | ||
+ | be responded to with precision; however, it will be noted by the Court that the mere | ||
+ | assertion that prosecution allegations can be “undermined” is a formulation of the sort of | ||
+ | evidential dispute which the extradition courts cannot consider. | ||
+ | |||
+ | 4. **Eller** | ||
+ | |||
+ | 184. Should the defendant seek to rely on the witness statement of Mr. Eller (and his exhibits) to argue that an extradition offence is not made out or in furtherance of a __Zakrzewski__ abuse argument, any such argument must also fail. For the reasons set out below, Mr. Eller’s statement and exhibits are relevant, if at all, to evidential dispute at trial. This precisely the sort of evidence Lord Sumption warned the Court not to consider in __Zakrzewski__ [§13]. | ||
+ | |||
+ | === PAGE 38 === | ||
+ | |||
+ | ==== VI. CONCLUSION ==== | ||
+ | |||
+ | 185., No issue of abuse or Zakrzewski abuse arises. | ||
+ | |||
+ | ==== VII. ANONYMOUS WlTNESSES ==== | ||
+ | |||
+ | 186. lf the Court agrees that the allegations about surveillance in the Embassy are incapable of constituting an abuse of the Court' | ||
+ | |||
+ | 187. There does not appear to be any application in the files nor any witness statement explaining the basis upon they seek anonymity. All that appears in the evidence is that: | ||
+ | |||
+ | 188. [3] "After being made aware of the evidence outlined below lawyers acting for Mr Assange in Spain, Baltasar Garozon Real and Aitor Martinez took a number of steps towards alerting Spanish prosecuting authorities. __Those steps involved establishing protection for witnesses involved__, and the confidentiality necessary if arrests and search warrants were thereafter to be ordered by a court. That confidentiality has been maintained by Mr Assange' | ||
+ | |||
+ | 189. [5] "... In addition the Central Investigative Court No. 5 has agreed a set of proceedings, | ||
+ | |||
+ | 190. [6] "To avoid unnecessary interference with the Article 8 ECHR rights and/or the privacy, confidentiality and Data Protection rights concerning third parties whose confidential or private data appears in the material before the court I have taken a selective approach to what I have included of the attachments but can confirm that all the attachments mentioned in the exhibited Criminal Complaint were filed with the court in Spain."; | ||
+ | |||
+ | 191. (pg.66) "Third Additional Pleading: It is requested the adoption of protection measures for the witnesses who are cited in the body of this statement of complain and whose statements are provided in copy of notarial deed in sealed envelope to prevent their knowledge until it has been adopted the measure that, respectfully, | ||
+ | (Central Examining Magistrate Number 5. | ||
+ | |||
+ | 192. "With this affidavit I make myself available to the justice system, with the aim of cooperating openly in relation to some events that I have information about and by their | ||
+ | |||
+ | === PAGE 39 === | ||
+ | |||
+ | contents may reveal unlawful activities. I wish to express that at no point have I intended | ||
+ | to commit nor am I aware of having committed any unlawful activities myself. That is | ||
+ | why I wish to make myself available to the justice system to ask it for protection and be | ||
+ | granted the status of a protected witness given that, with this decision which I have taken | ||
+ | freely, my family and I are put at risk with the information and documentation I am | ||
+ | providing.” __Witness 1__ | ||
+ | |||
+ | 193. “I have made this affidavit so that it can be presented before the judiciary. I intend that | ||
+ | my explanation of facts be put before the authorities and I understand that it may contain | ||
+ | activities that are considered to be illicit. I never participated in illicit acts, nor did I intend | ||
+ | to participate in such acts nor was I aware of them. That is why, despite being subjected | ||
+ | to a confidentiality agreement, I am now putting these facts. before the justice system. | ||
+ | However, as a prior necessity I require the status of a protected witness, given that with | ||
+ | this information, | ||
+ | be put at risk.” __Witness 2__ | ||
+ | |||
+ | 194. The Court cannot grant an application for anonymity unless it is satisfied that there is a genuine cause for anonymity, __generally a justified fear for the safety of the witness or others which cannot otherwise be protected__, | ||
+ | |||
+ | 195. It is noted that the identity of Witnesses 1 and 2 must be known to any accused persons in Spain. It is wholly unclear what possible basis they could have for submitting that they have a justified fear for their safety in these proceedings. Any application that their evidence remains anonymous would fall at the first hurdle given that there is simply no evidence about this. | ||
+ | |||
+ | James Lewis QC | ||
+ | |||
+ | Clair Dobbin | ||
+ | |||
+ | Joel Smith | ||
+ | |||
+ | 17 February 2020 |