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 https://www.theguardian.com/media/2011/sep/02/wikileaks-publishes-cache-unredacted-cables https://www.theguardian.com/media/2011/sep/02/wikileaks-publishes-cache-unredacted-cables
  
 +=== PAGE 32 ===
  
 +  * "WikiLeaks has published its full archive of 251,000 secret US diplomatic cables, without redactions, potentially exposing thousands of individuals named in the documents to detention, harm or putting their lives in danger. The move has been strongly condemned by the five previous media partners -- the Guardian, New York Times, El Pais, Der Spiegel and Le Monde -- who have worked with WikiLeaks publishing carefully selected and redacted documents. 'We deplore the decision of WikiLeaks to publish the unredacted state department cables, which may put sources at risk,' the organisations said in a joint statement. 'Our previous dealings with WikiLeaks were on the clear basis that we would only publish cables which had been subjected to a thorough joint editing and clearance process. We will continue to defend our previous collaborative publishing endeavour. We cannot defend the needless publication of the complete data -- indeed, we are united in condemning it. The decision to publish by Julian Assange was his, and his alone.' Diplomats, governments, human rights charities and media organisations had urged WikiLeaks' founder, Assange, not to publish the full cache of cables without careful source protection. The newly published archive contains more than 1,000 cables identifying individual activists; several thousand labelled with a tag used by the US to mark sources it believes could be placed in danger; and more than 150 specifically mentioning whistleblowers. The cables also contain references to people persecuted by their governments, victims of sex offences, and locations of sensitive government installations and infrastructure."
 +
 +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:
 +
 +  * "Assange was openly contemptuous of the American government and certain that he was a hunted man. He told the reporters that he had prepared a kind of doomsday option. He had, he said, distributed highly encrypted copies of his entire secret archive to a multitude of supporters, and if WikiLeaks was shut down, or if he was arrested, he would disseminate the key to make the information public. While we assumed we had little or no ability to influence what WikiLeaks did, let alone what would happen once this material was loosed in the eco chamber of the blogosphere, that did not free us from the need to exercise care in our own journalism. From the beginning, we agreed that in our articles and in any documents we published from the secret archive, we would excise material that could put lives at risk. Guided by reporters with extensive experience in the field, we redacted the names of ordinary citizens, local officials, activists, academics and others who had spoken to American soldiers or diplomats. We edited out any details that might reveal ongoing military intelligence gathering operations, military tactics or locations of material that could be used to fashion terrorist weapons. He was angry that we declined to link our online coverage of the War Logs to the WikiLeaks Web site, a decision we made because we feared -- rightly, as it turned out -- that its trove would contain the names of low-level informants and make them Taliban targets."
 +
 +https://www.nytimes.com/2010/07/26/world/26editors-note.html
 +
 +https://www.nytimes.com/2011/01/30/magazine/30WikiLeaks-t.html
 +
 +=== PAGE 33 ===
 +
 +  * "As for the risks posed by these releases, they are real. WikiLeaks' first data dump, the publication of the Afghanistan War Logs, included the names of scores of Afghans that The times and other news organizations had carefully purged from our own coverage. Several news organizations, including ours, reported this dangerous lapse, and months later a Taliban spokesman claimed that Afghan insurgents had been perusing the WikiLeaks site and making a list. I anticipate, with dread, the day we learn that someone identified in those documents has been killed. As for our relationship with WikiLeaks, Julian Assange has been heard to boast that he served as a kind of puppet master, recruiting several news organizations, forcing them to work in concert and choreographing their work. This is characteristic braggadocio -- or, as my Guardian colleagues would say, bollocks. Throughout this experience we have treated Assange as a source."
 +
 +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's abuse jurisdiction may be invoked in relation to the description of the conduct:
 +  * 153.1 Firstly, the jurisdiction "is exceptional". The statements in the [warrant] Request must comprise "statutory particulars which are wrong or incomplete in some respect which is misleading (though not necessarily intentionally)".
 +  * 153.2 Secondly, the true facts required to correct the error or omission "must be clear and beyond legitimate dispute". The abuse of process jurisdiction "is not therefore to be used as an indirect way of mounting a contentious challenge to the factual or evidential basis for the conduct alleged in the warrant, this being a matter for the requesting court".
 +  * 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 ===
 +
 +  * (i) Firstly, in relation to the "passcode hash allegation", it is said that illegality only arises if the publisher actually participated in illegally obtaining the material. This is said to be "flatly contradictory to Manning's unchallenged evidence before her Court Martial".
 +  * (ii) Secondly, there is said to be evidence that Ms. Manning's disclosures were not linked to the Wikileaks "most wanted" lists.
 +  * (iii) Thirdly (in the SOI) there are said to be further areas which could be undermined by the "hard evidence".
 +
 +155. Each of these arguments is an impermissible attempt to litigate matters of US law and/or evidence, and to reverse the fundamental basis upon which extradition operates- that the Court is not concerned with foreign law when assessing dual criminality, through the "back door" of an abuse argument. 
 +
 +**1. Passcode hash**
 +
 +156. As to the passcode hash, as a matter of English law, conspiracy under either the Computer Misuse Act or the Official Secrets Act is illegal at the point of agreement. It does not require participation in "illegally obtaining the material"
 +
 +157. If submissions are to be made to the effect that, as a matter of US law, illegality would only arise upon the publisher participating in illegally obtaining material, the submissions are misplaced. 
 +
 +158. It is not the function of the extradition court to resolve conflict of opinion as to the meaning of foreign law. Such a dispute, even if legitimate, cannot give rise to a Zakrzewski abuse in this jurisdiction. 
 +
 +159. It is well established that the Court should not undertake analysis of foreign law for the purposes of determining whether the conduct alleged amounts to an offence in the foreign jurisdiction (see Dabas v. Spain [2007] 2 A.C. 31 §55, Cando Armas v. Belgium [2005] UKFIL 67 at §16 and Norris v. USA [2008] UKHL 16 §§85 and 89).
 +
 +160. This approach is consistent with other areas which fall to be considered under the 2003 Act: 
 +
 +161. In relation to s.12A of the 2003 Act "It is no part of the function of the extradition court to embark upon an investigation of the legal niceties in the jurisdiction of the requesting judicial authority. It should not seek to resolve apparent conflicts of opinion about the meaning of foreign law.": [Puceviciene v. Lithuania [2016] 1 W.L.R. 4937 at §62].
 +
 +162. In relation to limitation periods:
 +
 +=== PAGE 35 ===
 +
 +  * "this kind of debate should only be entered by the courts of the requested state in the most exceptional of circumstances when there is the clearest possible evidence of the engagement in abuse by the prosecuting authorities of the requesting state... the domestic courts should be extremely reluctant to engage in evaluating the competing arguments about the local law of limitation in the requesting state. It is always wise never to say 'never,' but the circumstances when it is justified must surely be truly exceptional." (Villota v. Spain [2014] EWHC 2623 (Admin) at §35 and §40)
 +
 +163. In relation to abuse of process also predicated on the contention that a limitation period had expired:
 +
 +  * "... the prior question is whether this court should become involved in adjudicating upon these inconsistent interpretations of Italian law. For my part, it seems to me fundamental that in a European Arrest Warrant case it is wholly inappropriate for this court to proceed to adjudicate upon rival interpretations of Italian law. All this is a matter for the Italian courts in accordance with the principle expounded by Lord Brown in Gomes. Quite simply, we should not get involved." (Battistini v. Italy [2009] EWHC 3536 (Admin) §15)
 +
 +164. In relation to abuse of process predicated on the contention that the requesting authority had failed to comply with its own legal procedure:
 +
 +  * "... though Lord Hope couches his language in terms that the judge 'need not concern himself' with the criminal law of the requesting state, the thrust is that he should not do so, except in true abuse of extradition process cases, and should not do so, not as a matter of discretion, but as a matter of jurisdiction. Such inquiry is simply not his task. The effect of the Framework Decision, and the interpretation of the 2003 Act Part I, go further than the traditional assumption of good faith between sovereign states and a need to accommodate different national legal processes. 52. The circumstances of this appeal illustrate the point, and the way in which the contrary view would undermine the legislative intention. The context is an extradition case, pursuant to what is intended to be a simplified decision-making process in an area of mutual recognition of judicial decisions in criminal matters. There is a disagreement among the Greek lawyers about what the Greek Code of Criminal Procedure requires. It would be quite extraordinary for the District Judge to hear evidence from competing experts on Greek law, including the Prosecutor of the requesting state, so as to rule as a matter of fact on what Greek law was, then to find whether in fact the actions of the Prosecutor had breached whatever the law was found to be, then to rule on the effect on the validity of the warrant of a breach of its Code, each of which might be quite uncertain in Greek law, and then to rule on whether that caused the EAW to be invalid as a matter of English law implementing the Framework Decision. And if extradition then ensued, the matter would be dealt with by the Greek Courts who would be unlikely to regard the views of the English Courts on Greek law as of more than passing interest. If it did not ensue, the Greek Courts would never have the chance to put it right." [Symeou v. Greece [2009] 1 W.L.R. 2384, §§52-3]
 +
 +165. It is, fundamentally, not the rule of this court to enquire into whether the conduct alleged amounts to an offence as a matter of US law. The request and further information assert that it does. This is the end of the matter. The defendant's argument is, in reality, an attempt to litigate dual criminality by reference to the provisions of US law under which the defendant is indicted. This does not go to an abuse of process.
 +
 +166. A further, insurmountable hurdle is that the factual contentions of the defendant are manifestly not "clear beyond legitimate dispute". The request and further Affidavit of Gordon D. Kromberg assert:
 +
 +167. The defendant's extradition is requested in relation to an "agreement to obtain classified information through computer hacking" [§6] and publishing classified documents containing the unredacted names of innocent people [§6].
 +
 +=== PAGE 36 ===
 +
 +168. Such acts are "illegal and not protected by the constitution” [§§7-9].
 +
 +169. The defendant's extradition is requested for agreeing to assist Manning in cracking a 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 [§17, §68].
 +
 +171. If 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. If 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”, although the US prosecutors are of the view that such arguments would have no merit [§69-71].
 +
 +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 "providence enquiry" was initiated to ensure that the plea was voluntary and grounded in fact. This was a limited enquiry into the facts which Manning had chosen to admit and Manning was not subjected to exhaustive questioning about the offences or surrounding circumstances [§§ 142-3]. Thereafter, Mrs. Manning refused to testify before a grand jury and has as a consequence been incarcerated [§§ 145-156].
 +
 +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, in America [§§157-165].
 +
 +176. Even if, therefore, it were permissible to 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" lists is contradictory to the evidence given in Ms Manning‘s Court Martial.
 +
 +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's guilty pleas, a “providence enquiry” was initiated to ensure 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 is 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. If the Court agrees that the allegations about surveillance in the Embassy are incapable of constituting an abuse of the Court's process, then the evidence of Witnesses 1 and 2 is irrelevant. Submissions as to their  evidence being anonymous are set out here for fullness.
 +
 +187. There does not appear to be any application in the files nor any witness statement explaining the basis upon [which] 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's lawyers both in Spain and in the UK, all of whom have been made aware of the likely progression of steps being taken." [Ms Peirce - Statement 1]
 +
 +189. [5] "... In addition the Central Investigative Court No. 5 has agreed a set of proceedings, __including the protection of former workers as protected witnesses__, and the taking of the statement of Julian Assange as a witness, through a European Order of Investigation sent to the British authorities, as a victim of the alleged crimes being investigated." Jimenez Statement 1 (19 October 2019)
 +
 +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."; Jimenez Statement 2 (18 December 2019).
 +
 +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[t] 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, is requested, at certain risk to their personal integrity and security, therefore ..." Complaint to the Spanish Court (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, as well as the documentation that I am providing, my family and I will 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__, and that justice requires that the evidence be given. Per R. (on the application of B) v Westminster Magistrates' Court [2014] UKSC 59; [2015] A.C. 1195, Lord Hughes gave the following explanation of the correct approach to the test in the context of extradition proceedings (at [73]).
 +
 +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
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