Julian Assange’s Grand Inquisitor

The prosecution lawyers in the High Court seeking to ensure Julian’s extradition to the U.S. rely almost exclusively on the judicial opinions of Gordon Kromberg, a highly controversial U.S. attorney.

Kangaroo Courtship - by Mr. Fish

LONDON — The prosecution for the U.S., which is seeking to deny Julian Assange’s appeal of an extradition order, begun by the Trump administration and embraced by the Biden administration, grounded its arguments on Wednesday in the dubious affidavits filed by a U.S. federal prosecutor in the Eastern District of Virginia, Gordon Kromberg.

The charges articulated by Kromberg — often false — to make the case for extradition did not fly with the two High Court judges, Jeremy Johnson and Dame Victoria Sharp, who are overseeing Julian’s final appeal in the British courts.

The prosecuting attorneys, under questioning from the judges, were knocked off balance when challenged about the veracity of several of the claims which Kromberg made in support of the indictment against Julian. This was especially the case when the attorneys argued that the classified documents Julian released in 2010 — known as the Iraq and Afghan war logs — were not redacted. These unredacted documents, they told the court, jeopardized the lives of those named in the documents and caused some to “disappear.” 

As defense lawyers Edward Fitzgerald KC and Mark Summers KC made clear, and the judges seemed to acknowledge, the documents were indeed redacted by Julian as he worked with media partners, such as The Guardian and The New York Times, when WikiLeaks published classified military documents concerning the Afghanistan and Iraq wars, along with U.S. State Department cables. The unredacted versions were first published by the website Cryptome after two reporters from The Guardian published a book with the passcode to the documents, leading to their publication by other online organizations. 

Julian contacted the US government, as Summers told the court, and spoke to them at length, in an attempt to prevent the unredacted cables from being published. In the end, the U.S. State Department chose not to act. U.S. officials have sheepishly admitted they have no evidence of anyone named in the documents being harmed. Other allegations  — such as that Julian tried to help Chelsea Manning, who leaked the documents, decode a password hash to access documents or protect her identity, or that he sought to conspire with computer hackers — have also been debunked. 

A report provided to Judge Baraitser by a U.S. military forensic expert found that even if Manning was able to decode the password hash (which neither she nor anyone at WikiLeaks ever did) it would not have provided access to documents, it would not have provided her with anonymity and it would not have given her access to documents which she did not already have. The expert also described that someone with Manning’s technical knowledge, skill and experience, as well as her lawful access to Top Secret materials, would have known this. But these Kromberg-inspired canards are all the U.S. has, so it uses them.

By the end of the day, it seemed likely that, probably by April, since requested written briefs have to be turned into the judges in March, the two judges will permit an appeal on at least a few of the points. This will, conveniently for the Biden administration — which I expect does not want to take on the contentious issue of extraditing Julian while fueling the genocide in Gaza — mean that any extradition would occur after the election.  

The two-day hearing was Julian’s last chance to request an appeal of the extradition decision made in 2022 by the then British home secretary, Priti Patel and of many of the rulings of District Judge Vanessa Baraitser in 2021. If Julian is denied an appeal he can request the European Court of Human Rights (ECtHR) for a stay of execution under Rule 39, which is given in “exceptional circumstances” and “only where there is an imminent risk of irreparable harm.” But it is possible the British court could order Julian’s immediate extradition prior to a Rule 39 instruction or decide to ignore a request from the ECtHR to allow Julian to have his case heard by the court.

The CIA seeks Julian’s imprisonment in the U.S. because of the release of the documents known as Vault 7, which exposed hacking tools that permit the CIA to access our phones, computers and televisions, turning them — even when switched off — into monitoring and recording devices. The formal extradition request does not include charges based on the release of the Vault 7 files, but the U.S. request also only came after the release of the Vault 7 material. The CIA usually gets what it wants. But for the near future I expect Julian to continue to rot in HM Prison Belmarsh, where he has been imprisoned for nearly five years as he deteriorates physically and psychologically. This slow motion execution is intentional. 

It is hard to call any court ruling, other than the dropping of the charges against him, a victory, but the longer he stays out of U.S. hands, the more hope he has of regaining his freedom for carrying out the most important investigative journalism of our generation.    

Prosecution attorney Clair Dobbin KC, her long blonde hair spilling out from under her official curled blonde court wig, clung to the Kromberg affidavit like the holy grail, reading sections of it to the court. 

“It is not part of the ordinary responsibilities of journalists to actively solicit and publish classified information,” she told the court, in one of her most obtuse statements.

The core charges, she said, echoing Kromberg, were “complicity in illegal acts to obtain or receive voluminous databases of classified information;” the attempt to “obtain classified information through computer hacking” and “publishing certain documents that contained the un-redacted names of innocent people who risked their safety and freedom to provide information to the United States and its allies, including local Afghans and Iraqis, journalists, religious leaders, human rights advocates, and political dissidents from repressive regimes.”

Of course, as Julian’s defense pointed out, many of these people were informants, aiding and abetting U.S. war crimes, but the phrase “war crimes” was never mentioned by the prosecution, magically erased from the case.

The prosecution, relying on Kromberg, insisted Julian was not a journalist, that what he published was “not in the public interest” and that the U.S. was not seeking his extradition on political grounds. They charged that “hostile foreign governments, terrorist groups, and criminal organizations have exploited WikiLeaks disclosures in order to gain intelligence to be used against the United States and to be used against foreign nationals who provided assistance to the United States.” They said that Osama bin Laden had requested the material posted by WikiLeaks and that the Taliban used the documents to identify informants.  

I first encountered Kromberg — a fervent Zionist with ties to Israel’s far-right settler movement in the occupied West Bank — when in the wake of the attacks of 9/11, the U.S. government began imprisoning leading Palestinian activists as “terrorists” and shutting down Palestinian charities such as The Holy Land Foundation. 

Kromberg served as the Grand Inquisitor in these witch hunts, going after numerous Muslims including Ahmed Abu Ali, as well as my friend, the Palestinian professor and activist Dr. Sami al-Arian.

Al-Arian endured a six-month show trial in Florida – not unlike Julian’s – that saw the government’s case collapse in a mass of contradictions and innuendo. During the trial the government called 80 witnesses and subjected the jury to hundreds of hours of often inane phone transcriptions and recordings, made over a 10-year period, which the jury dismissed as “gossip.” Out of the 94 charges made against the four defendants, there were no convictions. Of the 17 charges against al-Arian — including “conspiracy to murder and maim persons abroad” — the jury acquitted him of eight and was hung on the rest. The jurors disagreed on the remaining charges by a count of 10 to 2, favoring his full acquittal. 

Following the acquittal, the Palestinian professor, under duress, accepted a plea bargain agreement that would spare him a second trial, saying in his agreement that he had helped people associated with Palestinian Islamic Jihad, the second largest resistance organization in Gaza and the West Bank, with immigration matters. He was sentenced to 57 months in prison. Al-Arian, while imprisoned, was ordered by Kromberg to testify in the grand jury investigation of the International Institute of Islamic Thought in Herndon, Virginia. 

When al-Arian’s lawyers asked Kromberg to delay the transfer of the professor to Virginia because of the Muslim holy month of Ramadan, Kromberg told them “if they can kill each other during Ramadan they can appear before the grand jury.” Kromberg, according to an affidavit signed by al-Arian’s attorney, Jack Fernandez, also said: “I am not going to put off Dr. al-Arian’s grand jury appearance just to assist in what is becoming the Islamization of America.” 

The government wasted $80 million trying to convict Dr. al-Arian, who refused Kromberg’s demand that he testify and was charged with contempt. He was eventually deported and lives in Turkey.

 “In 2017, Kromberg prosecuted the case of a D.C. police officer accused of buying gift cards in support of terrorism, charges that arose from a controversial sting operation,” The Intercept noted. “In court, Kromberg leveled eyebrow-raising allegations that the suspect was both a supporter of the jihadist group Islamic State as well as the World War II-era German Nazi Party on the grounds that he owned historical paraphernalia. Referring to an anonymous online commenter who had called the defendant “Muslim-Nazi scum,” Kromberg argued in court, “Whether or not that’s true, I don’t know the answer to that. But the point is that the Nazi stuff in this case is very much related to the, to the ISIS stuff.”

Kromberg has as deep an animus for Julian — and one suspects journalists — as he does for Muslims.

He raises the possibility, a possibility rather foolishly repeated by the prosecution’s representatives in London, that Julian, as a foreign national, could be denied First Amendment protections if tried in the U.S. This prompted the judges to ask if they had “any evidence that a foreign national is entitled to the same rights [under the First Amendment] as a U.S. citizen,” a question Dobbin, fumbling, was unable to answer.

At the same time, Kromberg has offered numerous assurances, repeated by the prosecution on Wednesday, that Julian will not be subjected to harsh prison conditions. He called the possibility that Julian will be housed in a highly restrictive supermax prison “purely speculative.” 

Kromberg subpoenaed Manning in 2019 to testify before a grand jury in an effort to get her to implicate Julian in “one count of conspiracy to commit computer intrusion,” a charge which was thoroughly debunked by expert testimony in 2020. Manning appeared before the grand jury but refused to answer questions posed to her. She was held in civil contempt and incarcerated. She was released after the grand jury expired. Kromberg then served her with a second subpoena to appear before another grand jury. Again she refused to testify, leading to another round of incarceration and fines of $500 a day that were raised to $1,000 a day after 60 days of noncompliance. In March of 2020 while being housed in a detention center in Alexandria, Virginia, she was hospitalized after she attempted to commit suicide. 

The effort to force Manning to implicate Assange is central to the U.S. case. If they can convince the court that Julian agreed to assist Manning in cracking a passcode to access a Department of Defense computer connected to the Secret Internet Protocol Network, used for classified documents and communications, it would allow the government to charge Julian with an actual crime. 

The fatal flaw in the case against Julian is that he did not commit a crime. He exposed the crimes of others. Those who ordered and carried out these crimes are determined, no matter how they have to deform the British and U.S. legal systems, to make him pay.