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Decision in Julian Assange Extradition Appeal Postponed: Sweden Created This Standoff, Says Assange Lawyer

10:34 am in Uncategorized by Kevin Gosztola

A decision in WikiLeaks editor-in-chief Julian Assange’s extradition appeal hearing is not expected for three weeks, as the court has reserved judgment whether he should be extradited to Sweden to be questioned for allegedly committing sex crimes. The postponement came as the hearing wrapped up after being in session for two days.

Assange’s appeal hearing challenged a lower court ruling, where a judge decided he should be extradited to Sweden. The process itself is part of the European arrest warrant (EAW) system, which is an “adopted framework” under the European Union that was developed to simplify and speed up extradition among member states. The allegations of sex crimes are part of the extradition process but not necessarily dependent or relevant to whether Assange is eventually extradited.

The Guardian, in its blow-by-blow documentation of hearing on its website, reports Clare Montgomery, appearing on behalf of Swedish authorities, argued “public prosecutors have long issued arrest warrants that were processed by UK courts as grounds for extradition” and it doesn’t matter if Assange is wanted for questioning and not for charges. Assange’s legal team, however, suggested there existed “more proportionate” ways to handle this situation than using the EAW system.

The judge said, “We are not concerned with whether this is a good case or a bad case but whether what is charged amounts to a crime.” Mark Summers, an attorney for Assange, said, “The prosecutor has never sought to explain why she has not engaged all other mechanisms [ie other than extradition] to progress this investigation … The reason there is a stand-off is entirely of Sweden’s making. What a waste of time.”

Yesterday, Assange’s legal team made claims that the European arrest warrant, which led to the hearing, contained “fundamental misstatements.” The team argued he had consensual sex with the two women who claim they were raped or sexually violated. And, the team argued Swedish authorities could use other means to investigate and pursue Assange that were not as “disproportionate.”

Assange had a new legal strategy and team for this hearing. Tom Hayden for The Nation wrote in June, “Until now, the Assange defense team has disparaged the Swedish assault charges and suggested that once in Swedish hands, the WikiLeaks founder might face extradition to the United States on conspiracy charges carrying a life sentence.” Gareth Peirce, a “renowned British human rights advocate who has defended Guantanamo detainees and Irish republicans in previous decades,” was brought on along with Ben Emmerson, “also a respected human rights attorney who has served as a United Nations Special Rapporteur on human rights and counterterrorism.”

Peirce told Hayden before the extradition appeal hearing:

The history of this case is as unfortunate as it is possible to imagine, in which encounters, undoubtedly believed by all parties at the time to be private, became inappropriately the subject of publicity and thereafter in consequence no doubt the more difficult to resolve. Each of the human beings involved deserves respect and consideration. It is hoped that whatever steps as are required to be taken in the future will be taken thoughtfully, with sensitivity and with such respect.

[*Note: Peirce has previously come out strongly against the United States on the issue of extradition. Read her article, which was published in the London Review of Books in May 2010.]

The change in legal team and strategy may explain why Assange did not give any speeches on either day of the appeal hearing.

Assange’s extradition case has called attention to irregularities and unjust aspects of the EAW system. A parliamentary committee, the Joint Committee on Human Rights, singled out the case of hacker Gary McKinnon, who has spent nine years fighting extradition to America, and urged that Britons not be sent overseas for offenses “committed wholly or mainly inside the UK” or for cases “without any evidence against them.”

EU Justice Commissioner Viviane Reding spoke out in April and said, according to The Guardian, “crossborder pursuits of bicycle thieves, piglet rustlers and those accused of trivial offences was damaging the authority of the European arrest warrant (EAW).” The EU Commission planned legislation to address some of the problems that have stemmed from the process.

Duncan Campbell, for The Guardian, detailed in June how the EAW has been a “very blunt instrument.”

The EAW was first introduced at the beginning of 2004 as a way of expediting the extradition across European borders of wanted criminals and those who had fled countries rather than stand trial for serious offences. That was its intention, anyway, and it is fair to say that, on many occasions, it has been very helpful in the speedy capture of violent and dangerous people who have sought to avoid a country’s justice by hiding abroad…

… While there can be no argument on behalf of some of those who have had their collar felt in some foreign land, the warrant has been too readily used in cases that were very minor, flimsy or nonexistent. It is time to rework it, so that the warrant is only employed when there is a clear, credible case against an alleged offender and when a speedy trial and proper legal representation is assured.

On June 9th,  the European Parliament held a debate on the EAW system. Gerard Batten MEP detailed how the EAW was being used to oppress political dissidents, like Assange and said, “There are many irregularities in the case against him.”

He listed the irregularities: failure of prosecutor to interview witnesses that could clear Assange, allegations against Assange would not constitute “rape” in England, complainants’ lawyer has stated the ladies in question cannot tell if what happened constitutes “rape” because they are not lawyers, Assange was in Sweden for five weeks but was not questioned, etc. And, he went on to provide context for an argument that the EAW is being used to suppress the efforts of Assange and WikiLeaks and is feeding into US efforts to investigate and go after Assange for espionage.

Assange has not hid his fear that he might be extradited from Sweden to the United States. The legal team may not be describing this possibility in court or publicly to fuel support for Assange’s case, but it is widely known that Assange finds it possible he could end up in US custody.

In a chat with Swedish newspaper Aftonbladet in February explained why he thinks Sweden would extradite him to the US:

This is an interesting question that few people have looked at with any depth. Onwards extradition – to the United States – entirely a matter of politics. The Swedish Prime Minister has refused to block such an extradition, saying, falsely, that it is a matter entirely for the judiciary, while at the same time pathetically pandering with his other commentary on the case. Infact, he has the power, in the Swedish extradition relationship with the US, to disqualify my extradition. He refuses. According to what I have been told of the protocol between Sweden and the UK, and the US and the UK, the Home Secretary of the UK, simiarly has such power to politically veto such an extradition. The British government, thus far, has refused to do so. Now, while it is convention that an extradition from the UK or Sweden to the US would require the US to agree to not execute or torture me or other european based WikiLeaks staff, any such diplomatic guarentee would be meaningless. Sweden went through that formalism with its CIA assisted extraditions to Egypt, which were immediately ignored. In the US many senior politicians have called for our assassination or life imprisonment. There are three bills before Congress and the Senate to do such things as declare us a “transnational threat”, so all our staff can be treated like al-Quada – as “enemy combatants” and shipped off to Bagram or Guantanamo, etc. Nothing Sweden can politely ask for can stop this legislative risk.

Tom Hayden, in another article on Assange’s case, explained, “If American authorities eventually indict Assange and demand his extradition, the proceedings could raise a firestorm of protest. But any extradition from Sweden would have to be approved by both Stockholm and London—under extradition law, an individual may not be extradited on one charge from nation A to nation B, and then extradited to nation C on a different charge. The prosecutors will be faced with strong opposition from the United States, the United Kingdom and Sweden.”

The postponement of a decision naturally invites speculation. Why couldn’t the court give an immediate decision? The public does not know the backroom conversations and power politics, which might be playing out. But, read Peirce’s article published in the London Review of Books and one can assume there are power politics involved in most extradition cases.

If Assange loses his appeal, he will have one more avenue for appeal and could take his case to the UK Supreme Court. The Swedish authorities, of course, could also end their pursuit of an extradition and use the other avenues the Assange legal team has outlined to give the women, who allege sex crimes, justice.

Obama Has Decriminalized Torture: Do Americans Care?

7:07 am in Uncategorized by Kevin Gosztola

From President Barack Obama’s inauguration to now, he has treated the issue of torture and the legalization of this supreme violation of human rights as an inconvenience. Obama has kept the possibility of holding former Bush Administration officials accountable for torture shrouded in remarks that contain platitudes on nobody being above the rule of law, yet, in those same remarks, he has shifted the responsibility to people like Attorney General Eric J. Holder to prosecute Bush officials, effectively freeing him of any obligation or liability that might stem from having to launch an investigation.

A new report from Human Rights Watch, “Getting Away with Torture: The Bush Administration and Mistreatment of Detainees,” provides opportunity to reflect on the reality that Bush Administration officials committed and effectively legalized torture and the Obama Administration, in its failure to hold these officials accountable, has in a way decriminalized torture.

As a number of news organizations and blogs have noted, the critical thing about the report is that it appears to give up on any possibility of a thorough investigation being launched by the Obama Administration. It encourages “judicial systems in foreign states to pursue investigations” and prosecute “under the doctrines of ‘universal jurisdiction’ and ‘passive personality’ jurisdiction. Under the principle of international that states have an interest in bringing to justice “perpetrators of particular crimes of international concern.” And, it notes that under the Geneva Conventions of 1949, which the US has ratified, “grave breaches” including “willful killing; torture or inhuman treatment; willfully causing great suffering, or serious injury to body or health; and willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial” puts an obligation on countries that have signed to search for those alleged to have committed “grave breaches” and even push for extradition of officials suspected of violations.

While urging foreign countries to prosecute may show human rights groups are desperate, that human rights groups are now pursuing this as an option says a lot about America’s contempt for the rule of law. Kenneth Roth of Human Rights Watch explained on Democracy Now! torture is the “intentional infliction of severe pain and suffering, whether physical or mental.” Mock executions, like waterboarding, have been prosecuted by the US previously. But, the political class and establishment lawyers argue that prosecuting violations under the law will “politicize criminal law.” Or, they display as much interest in addressing the misconduct as those who know the war in Libya is a downright illegal war.

Those who were opposed to Bush Administration policies of torture, like human rights groups and lawyers, have been understandably disappointed with the Obama Administration. It has failed to close Guantanamo, indicated support for indefinite detention of terror suspects without a trial, bowed to the rancor of neoconservatives and decided to prosecute terror suspects with military commissions, refused to release “torture photos” and chosen to not charge any former CIA officials with the destruction of interrogation tapes.

Human rights groups have been very patient with the administration. Not only has the Obama Administration failed to uphold its duty to investigate and prosecute Bush officials under signed treaties like the Convention against Torture but it has let Bush officials tour around with their memoirs—books which contain prideful admissions of torture.

When Osama bin Laden was killed in a targeted operation, the administration put up with people like former Vice President Dick Cheney, who suggested torture had likely helped the Obama Administration kill him. And, with the news that the Justice Department was dropping ninety-nine of the one hundred and one cases against the CIA for abuse and torture, Bush officials were effectively absolved of any real threat of prosecution from the Obama Administration.

Jeff Kaye draws attention to how the “fight for transparency” makes this renewed push for prosecutions important. Kaye highlights how the Department of Defense is now considering a new policy for unclassified information that would enable less openness and more secrecy. This proposal is to be expected from an administration that has derailed torture lawsuits by invoking “states secrets” privileges. For example, in Mohamed v. Jeppesen Dataplan, Inc., in a suit brought by five survivors of the CIA’s rendition program, the ACLU reports, the Obama Administration argued against a lower court ruling, claimed the “case could not be litigated without the disclosure of state secrets.”

What’s more striking is how this report further demonstrates the US has no culture of accountability for those in power who do not commit crimes that involve sexual misbehavior. Probe after probe and investigation after investigation can produce pages of evidence that would fill an entire room. Recommendations on what to do and blueprints for moving forward can be drafted. Nobody in Washington wants to be bothered with the business of correcting injustice.

Today, President Obama could call for a criminal investigation into US government detention practices, as recommended in the HRW report. But, in America, those guilty of crimes in the national security establishment are permitted to commit crimes so long as it appears it happened while trying to protect America from terrorism. They can trash people’s civil liberties, torture people and violate treaties that are law and get away with it just like bank executives on Wall Street can get away with collapsing the US economy.

The effect of not investigating and prosecuting torture is not only that laws are violated but that torture becomes normalized. A rot spreads throughout the American population as Americans find power should be granted the benefit of the doubt and be allowed to torture terror suspects. Ignoring the number of people detained by the US, who are innocent and have no relationship to any terror group, they remember the mythology of 9/11 that has been seared into their brain by leaders like President Bush and President Obama, who countlessly retell the story of 9/11 in war speeches, and see no problem dehumanizing people.

Torture legalized as a tool for those carrying out “counterterrorism operations” becomes legitimate for use throughout America. Guards in Abu Ghraib, Bagram and Guantanamo Bay, who tortured detainees, can come home and become guards at prisons like the Pelican Bay prison and torture prisoners by subjecting them to solitary confinement in a prison-within-the-prison called the Security Housing Unit or the SHU. They can get away with using interrogation techniques, which are tantamount to torture, on political prisoners like Bradley Manning, the alleged military whistleblower to WikiLeaks.

As reported yesterday, the UN Special Rapporteur on Torture Juan Mendez has been restricted from having access to detainees in the US so he can conduct inquiries into torture or inhumane treatment. Mendez reports:

I am assured by the US Government that Mr. Manning’s prison regime and confinement is markedly better than it was when he was in Quantico. However, in addition to obtaining first hand information on my own about his new conditions of confinement, I need to ascertain whether the conditions he was subjected to for several months in Quantico amounted to torture or cruel, inhuman or degrading treatment or punishment. For that, it is imperative that I talk to Mr. Manning under conditions where I can be assured that he is being absolutely candid.

The US Department of Defense has said they would allow Mendez to visit but that he would not be able to have an unmonitored visit, violating “long-standing rules that the UN applies to prison visits.” Mendez reluctantly agreed to a monitored visit, but Manning declined to agree to speaking to Mendez while under close watch by any agents or guards. Now, Mendez concludes the US may no longer wish to allow him to visit detainees in any US prisons if he makes a country visit to the United States.

This prevention of access is not unique to the Obama Administration, as the Bush Administration also put unacceptable conditions on UN visits to Guantanamo Bay. This is part of the “new normal,” an era where officials who commit crimes are shielded from accountability for engaging in warrantless wiretapping, torture, or rendition; state secrets are invoked to prevent transparency; detainees are denied habeas corpus; prisons like Guantanamo and Bagram (along with black prison sites that likely still exist) continue to hold detainees perhaps indefinitely; navy ships hold prisoners that can no longer be sent to Guantanamo because there will be public outrage; the right to target and kill U.S. civilians and bypass due process is asserted; and military commissions or “kangaroo courts” force detainees into Kafkaesque proceedings that make it nearly impossible to not be found guilty.

America purports to have moral authority in the world to push for prosecutions for crimes in Third World countries. It condemns Middle Eastern and African countries (excluding Israel), which do not allow access to their countries for investigations of human rights violations. But, it does not investigate and prosecute its own officials, who are responsible for committing and legalizing torture.

The country appears to care little when it is suggested that what happened under Bush could happen again because all too many fail to see how shopping around for legal arguments to create justification for torture or “enhanced interrogation techniques” was wrong. The idea of moving forward instead of looking backward to hold Bush officials accountable enchants the population. And so, the population presses on without collectively confronting the system that has been put in place over the past ten years.

A Congress Unwilling to Exercise Its War Powers

10:09 am in Government by Kevin Gosztola

Dueling resolutions from Republican Speaker of the House John Boehner and Democratic House Representative Dennis Kucinich sparked a debate in Congress. The debate centered around the War Powers Act, the US Constitution and whether President Obama had violated the law by taking the United States into a war in Libya.

The Kucinich Resolution (H.R. Con. Res. 251) aimed to direct the president, pursuant to the War Powers Act, to remove all troops from Libya within fifteen days after the resolution was adopted. It was an attempt to force Congress to exercise the authority that it has under the Constitution to decide when and where troops are deployed for wars and whether or not wars should be launched.

In contrast, the Boehner Resolution (H.R. Con. Res. 292) was offered by Speaker Boehner to take the wind out of the sails of the growing bipartisan movement, consisting of anti-war Democrats and anti-interventionist Republicans, who were ready to assert Congress’ legislative authority and oppose the further expansion of the Executive by the Obama Administration that has taken place as a result of the Libya War.

The resolution brought by Rep. Kucinich failed 148-265. Speaker Boehner’s resolution passed 268-145.

The passage effectively stymied Rep. Kucinich’s genuine attempt to bring an end to the shirking of constitutional responsibilities in matters of war and peace in Congress. It aimed to halt the operations that had been initiated by the Obama Administration without congressional approval. But, as evidenced by the debate, despite the near unanimous recognition that seventy-seven days into the war the Obama Administration has the US embroiled in an illegal war and Congress has abdicated its responsibility, the majority of representatives in the House were reluctant to actually exercise the authority, which the Constitution grants them.

Representatives, who understood the weight of the moment, attempted to reason and convince a servile and overwhelmingly deferential majority that there needed to be action. They called out Speaker Boehner for offering a resolution that sidestepped the responsibility Congress is supposed to uphold.
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Pakistan Papers: US Drones Violate Sovereignty, Fuel Anti-American Sentiment

10:07 pm in Uncategorized by Kevin Gosztola

ImageA new batch of US State Embassy cables released specifically dealing with the US relationship with Pakistan draw attention to a number of Pakistani political issues, the military aid the US has been giving Pakistan, the deployment of US troops in Pakistan and the growing conflict between India and Pakistan, which the US appears to be gaming to advance its own foreign policy.

The release is the product of a partnership between the Dawn Media Group and WikiLeaks that began in the last week of April of this year. Around 4,000 cables are to be released over the next few weeks.

There are numerous ways to begin to examine the cables. This post covers the use of drone technology in Pakistan.

Kayani Asks US to Loan Pakistan Unmanned Air Vehicles (UAVs)

The cable getting attention is 08ISLAMABAD609 sent out by Anne W. Patterson on February 11, 2008. It details a meeting between Pakistan General Ashfaq Kayani, Chief of Army Staff, and US CENTCOM Commander and Admiral William J. Fallon on January 22. During the meeting, the two discuss expanding military assistance and training along with improving cooperation in Afghanistan.

Kayani asks Fallon to assist in providing “continuous Predator coverage of the conflict area.” Fallon is unable to offer the “assets to support his request” but offers Joint Tactical Aircraft Controller (JTAC) support for Pakistani aircraft. Kayani does not find this offer politically acceptable.

Fallon offers JTAC training for Pakistani troops. A brief discussion on the complexities of “building a night-capable, air-to-ground capability in the Pakistan army” ends with Kayani conceding such a “big project” could not be undertaken. But, during the meeting, Kayani does emphasize the need for tactical SIGINT capability for Pakistan’s military aircraft. Though not interested in Predator drones, he would like to procure Unmanned Air Vehicles (UAVs) and asks if the US could “grant or loan them to Pakistan.”

In December 2009, just as US President Barack Obama delivered a speech on sending 30,000 more troops to Afghanistan, US officials also began to commit to more use of drones in Pakistan. The New York Times’s Scott Shane covered this development reporting officials were “talking with Pakistan about the possibility of striking in Baluchistan for the first time—a controversial move since it is outside the tribal areas.”

(Note, the controversy was not that covert military operations were being considered in a country where war powers had not been authorized with congressional approval. The issue was that an area outside of areas where strikes had been much more acceptable was being considered. The Timesalso uses the CIA as a cover for military actions like drone strikes. See the headline for this quote, “CIA to Expand Use of Drones in Pakistan.” But this isn’t covert. The US is committing military personnel to the country. This is obvious in the cables.)

Zardari Welcomes “Acquisition of Modern Technology”

A cable on a congressional delegation led by US Senator Patrick Leahy (09ISLAMABAD1123) reveals President Asif Ali Zardari in May of 2009 requested the US use drone technology so his forces could take out the militants. He “welcome the acquisition of modern technology” believing having drones would make it more difficult for media or anyone else to criticize the actions the Army might take to protect Pakistan’s sovereignty.

Another cable (08ISLAMABAD3677) focuses on the reaction in Pakistan in the immediate aftermath of what was believed to be the first such attack in the settled areas of the Northwest Frontier Province, outside of the tribal areas. Prime Minister Yousaf Raza Gilani sharply condemned the strike within “Pakistan proper,” which US diplomat Anne Patterson describes as a “watershed event.”

The strikes were “intolerable” to Gilani. In Pakistani Parliament. Pakistan Muslim League-N (PML-N) Opposition Leader Chaudhry Nisar Ali Khan criticized the Pakistan government’s “inability to stop alleged U.S. incursion and asked that the matter be taken to the United Nations.”

PML-N leader Ahsan Iqbal cited the Bannu attack as evidence that the GOP must have a secret agreement with the US. Other parliamentarians claimed that they have seen drones hovering over Swat, and warned that future attacks could spread to Peshawar and Islamabad.

Jamiat Ulema-e-Islam leader Maulana Fazlur Rehman also made an impassioned speech during the Assembly session against alleged U.S. action in Bannu calling it “U.S. aggression and violation of Pakistan’s territorial integrity.” Rehman’s party will hold a secret meeting to discuss their future actions in response to the continued drone strikes, according to contacts within the party. The Bannu attack is particularly significant for Fazlur because he represents the Bannu district.

Interestingly, “vehemently secular” Muttahida Quami Movement (MQM) Deputy Parliamentary Leader Haider Rizvi claimed he would not be able to handle the growing popular and political pressure from these attacks and declared the Pakistan people “had not made their peace with drone attacks in the tribal areas and a shift into mainland Pakistan was even more inflammatory.”

“Friendly countries are being asked to help Pakistan in convincing the US to respect Pakistan’s sovereignty,” said Chairman of the Joint Committee Raza Rabbani. UN Secretary General Ban Ki-Moon was “concerned” about the US attacks but didn’t intervene because he found it to be a “bilateral issue.”

Pakistani Prime Minister: “We Will Hit Targets Ourselves”

Gilani denies there is a secret government agreement between the US and Pakistan, which may be mostly true. Right after the election of Obama, one of the released cables (08ISLAMABAD3586) shows Gilani pressed the US government to “share all credible, actionable threat information.” He declared, “We will hit the targets ourselves,”

…Gilani added that drone strikes not only violated Pakistani sovereignty, but also fed anti-U.S. sentiment, making harder his own public case that the struggle against extremists was “Pakistan’s war.” Instead, there was popular pressure on elected officials like himself to forcefully respond to alleged U.S. border incursions, which were “an embarrassment” for the GOP. The “trust gap” should be filled with joint actions, he argued, and, while he might be criticized for such bilateral cooperation, he believed he could effectively convince the public that those targeted were responsible for Benazir Bhutto’s assassination and the killing of innocents at schools.

Months later, in June 2009 cable09ISLAMABAD1438, Gilani again expressed his frustration while meeting with National Security Advisor James Jones:

[Gilani] thanked the U.S. for its assistance while stating he needed “a battalion of helicopters” to fight the extremists now, and in the future. He also made repeated pleas for drones to be “put in Pakistan’s hands” so that Pakistan would own the issue and drone attacks (including collateral damage) would not provoke anti-americanism. Zardari said the technology behind them was not cutting-edge and said he has raised the issue with the Chairman of the Joint Chiefs of Staff.

Inter Services Public Relations spokesman in Pakistan said right in the immediate aftermath of the cable release, “There has only been sharing of technical intelligence in some areas” and “no armed drone attack support has ever been asked for operations which have been conducted using own resources.”

“American Image” Reaching a New Low

Consistent with current US operations in Pakistan, a US drone strike destroyed a vehicle in Pakistan in the North Waziristan district on the Afghan border, an area believed to be occupied by Taliban. Local officials said “six suspected militants” were killed.

A Washington Pew Research Center survey conducted recently shows that 11 percent of Pakistanis view the US and President Obama favorably. The survey, taken a week prior to the killing of Osama bin Laden, is likely a bit higher than the country’s current approval rating especially since that and multiple drone strikes have taken place in Pakistan since the assassination.

Dawn Media Group concludes the “American image” is reaching new lows but that has never bothered Washington. The media organization notes US congressman would like a review of the US commitment to providing aid in the “war on terror” before more aid is given to the country, which has received at least $20 billion so far.

Shyema Sajjad for Dawn writes, “What’s the most stirring thing about the revelations WikiLeaks has brought to us today? Nothing? Or everything? For starters, quite a few people reading the cables right now must be gloating and inwardly thinking or outwardly bragging. ‘Hah! I knew it all along!’ Of course you did. Didn’t we all?”

Sajjad finds the key travesty revealed in the cables to be the fact that Pakistani leaders and the military have “more faith in the American government than they do in themselves.” He adds, “Talk of sovereignty today is a farce. Sovereignty is not sacred and whether it’s Kayani who pretends to uphold it or whether it is Gilani, fact remains that we are secretly (well, not so much anymore) selling it every single day.”

A United Nations report in June 2010 on “Extrajudicial Executions” suggested the drones targeting militants “violate straightforward legal rules.”

The refusal by States who conduct targeted killings to provide transparency about their policy violates the international framework that limits the unlawful use of legal force against individuals. A lack of disclosure gives States a virtual and impermissible licence to kill.

At the time of the release, 134 drone attacks had been conducted.

A study published in February 2010 by Peter Bergen and Katherin Tiedemann on behalf of the New America Foundation detailed US drone strikes in Pakistan from 2004-2010. The study found “114 reported drone strikes in northwest Pakistan from 2004 to the present have killed between 830 and 1,210 individuals, of whom around 550 to 850 were described as militants in reliable press accounts.” This means the “true civilian fatality rate since 2004” was 32 percent.

The study concluded “US drone strikes don’t seem to have had any great effect on the Taliban’s ability to mount operations in Pakistan or Afghanistan or to deter potential Western recruits, and they no longer have the element of surprise.” And, “their unpopularity with the Pakistani public and their value as a recruiting tool for extremist groups may have ultimately increased the appeal of the Taliban and al Qaeda, undermining the Pakistani state. This is more disturbing than almost anything that could happen in Afghanistan, given that Pakistan has dozens of nuclear weapons and about six times the population.

 

FBI Documents Show US Citizens Targeted for Interest in US Foreign Policy

9:12 am in Uncategorized by Kevin Gosztola

Antiwar and international solidarity activists, subjects of a federal grand jury investigation that alleges they may have provided “material support for terrorism,” uncovered documents on FBI guidelines and investigation practices left behind in an activist’s home that was raided in September of last year. The documents illuminate how the FBI has conducted surveillance of the activists being targeted in the investigation and further prove the grand jury is being used as a tool to go after political groups.

On September 24 of last year, the home of Lindon Gawboy and Mick Kelly, an activist who helped to organize a mass demonstration outside the Republican National Convention in 2008, was raided and subpoenaed. Gawboy was awoken by FBI pounding on her door. She came to the door and asked for a search warrant. The FBI ignored her request for a warrant and proceeded to use a battering ram, which took the door off its hinges and shattered a nearby fish tank.

The agents raiding Gawboy and Kelly’s home emptied file cabinets and desks and stacked files around the apartments. They set up and went through individual documents taking files away that were of interest to them. At some point during this process, an agent’s papers on the investigation became mixed in with Kelly’s files. And, presumably by chance, Gawboy found the revealed documents just weeks ago.

The documents show the investigation was “predicated on the activities of Meredith Aby and Jessica Rae Sundin in support of the Revolutionary Armed Forces of Colombia, a U.S. State Department designated foreign terrorist organization (FTO), to include their travel to FARC controlled territory.” Bruce Nestor, an attorney advising individuals that have been issued subpoenas in this investigation, explains “predicate” is a word that typically connotes “what’s necessary to begin an investigation into protected First Amendment activity.”

Current FBI guidelines, according to Nestor, actually do not require a predicate to begin a preliminary question. This means the FBI can send agents and law enforcement officers into public meetings undercover to gather publicly available information and store that information about activists in perpetuity.

Sundin, a founding member of the Twin Cities-based Anti-War Committee, says she traveled to Colombia to witness peace talks between the FARC and the Colombia government. She flew into Colombia on an airplane owned by the Colombia military. Sundin was interested in what it would take to end a decades-long conflict in a country that is the biggest recipient of US military aid in Latin America.

“What I find disturbing about the line of questions is its attempt to stir up a kind of 1950s Red Scare within the antiwar movement,” declares Sundin. In particular, the questions indicate the FBI was interested in information on the Freedom Road Socialist Organization.

“It’s true some of us are socialists, but that’s not against the law. A lot of us have grievances with capitalism,” explains Sundin. “The government has no right to dictate to the antiwar movement who can and cannot be in our movement.”
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New US International Cybersecurity Strategy: Using the Language of Open Internet Advocates to Expand Power

12:15 pm in Uncategorized by Kevin Gosztola

WikiLeaks Omitted from the US International Cybersecurity Strategy

The United States officially launched its international cybersecurity strategy in a White House event on Monday, May 16. Secretary of State Hillary Clinton joined by the following administration officials: John Brennan, the president’s counterterrorism and homeland security adviser; Howard Schmidt, White House cybersecurity coordinator; Attorney General Eric Holder; Secretaries Janet Napolitano of Homeland Security and Gary Locke of Commerce; and Defense Deputy Secretary William Lynn.

The presentation of the cyber security presented several principles, outlined the approach the US intends to take in the further development of cyber security protections, and indicated how the US might use the Internet to preserve its status as a superpower in the world.

Featured during the presentation were seven principles, which appear in the framework: economic engagement, protecting networks, law enforcement, military cooperation, multi-stakeholder Internet governance, international development and Internet freedom. Within the presentation, Clinton sought to explain that cyber crime, Internet freedom and network security could no longer be “disparate stovepipe discussions.”

At no time during the launch of the strategy was WikiLeaks mentioned. Not even Clinton bothered to mention it, despite the fact that she heads a State Department that had their department’s classified information leaked and published by media organizations and continue to have new information published each day.

Yochai Benkler, faculty co-director of the Berkman Center for Internet and Society, has detailed the following:
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Behind the Blogger Who Made the WikiLeaks Confidentiality Agreement a Top Story

9:39 pm in Uncategorized by Kevin Gosztola

David Allen Green, legal correspondent for the New Statesman out of the UK, has spent the last few days calling attention to a leaked WikiLeaks confidentiality or non-disclosure agreement (NDA), which he revealed in a blog post on May 11. Green has posted a second post on the agreement on his blog, Jack of Kent, and will be posting a summary to the New Statesmanwebsite on May 16, which last time I checked, he intends to glibly title, “NDAs for Dummies.”

I published an initial analysis of the leaked agreement on WL Central. The analysis was featured as a “Best Opinion” in an “Irony Alert” blog post on the agreement on The Week‘s website.

Green, who is the blogger who was the first to draw attention to the agreement, called it a “draconian and extraordinary legal gag that WikiLeaks imposes on its own staff” and, in particular, focused on Clause 5 of the agreement that “imposes a penalty of ‘£12,000,000 – twelve million pounds sterling’ on anyone who breaches this legal gag.”

In his follow-up post, which cites the analysis I wrote, he groups me with others who “sought to explain the document away: to normalize it and to contend that it is somehow unexceptional.” That is true. That is what I did.

He adds:

It may be well that for WikiLeaks partisans (like “the Birthers” in the United States), nothing – not even a disclosed document- will shift their adherence to their cause.

If so, that would present quite a paradox, as one claim for the WikiLeaks enterprise is that publishing original documents can undermine artificial and self-serving narratives.

So for WikiLeaks and its partisans, and for anyone else who is interested, what follows is a technical legal analysis of this extraordinary document.

This is the pejorative framing for Green’s legal analysis: others and myself are so fervently supportive of WikiLeaks that we are blind to the contents of this agreement. In fact, we are so biased that we are like the racist faction of people in the United States, who fought to get President Barack Obama to produce his birth certificate to prove he was American–a campaign that made some recall the days when the US government required African-Americans to take literacy tests in order to vote.

What about Green’s opinions on WikiLeaks? If one looks at each of his posts on WikiLeaks, it becomes apparent that Green is an iconoclast when it comes to WikiLeaks. He is a denouncer or skeptic, who only ever has something critical to say of WikiLeaks, and, while he will say something good about WikiLeaks here and there, he only does it to buffer the tartness of his posts on WikiLeaks.
Read the rest of this entry →

Grand Jury Investigation Into WikiLeaks Just Another Government ‘Fishing Expedition’

7:28 am in Uncategorized by Kevin Gosztola

A federal grand jury was scheduled to meet at 11 am EST in Alexandria, Virginia. The grand jury is being employed to “build” a case against Julian Assange, the WikiLeaks founder who just won a gold medal for peace and justice from the Sydney Peace Foundation.

“The WikiLeaks case is part of a much broader campaign by the Obama administration to crack down on leakers,” writes Carrie Johnson of NPR. Johnson is one of a few reporters in the US press who has published a report today on this stirring development in the United States. She finds “national security experts” cannot “remember a time when the Justice Department has pursued so many criminal cases based on leaks of government secrets.”

The number of people subpoenaed to appear before the grand jury is unclear (and not in any of the few news articles published on the grand jury so far). What is known is that at least one individual from Cambridge was issued a subpoena seeking to compel him to testify before a Grand Jury. Glenn Greenwald of Salon.com reported the individual served had a public link to the WikiLeaks case and it was “highly likely” the subpoena was connected to the WikiLeaks Grand Jury investigation.

There are two other federal Grand Juries that are ongoing in the country. In San Jose, California, a Grand Jury has been empanelled to investigate the “hacktivist” group, Anonymous. Another Grand Jury in Chicago has been empanelled to target antiwar, labor and international solidarity activists for their political action.

The last news reports on the Grand Jury investigating Anonymous came in the beginning of February. Then the Grand Jury began to review “evidence” in multistate raids that took place on January 27. The “evidence” includes “computers and mobile phones seized from suspected leaders” and was to be used to investigate the “denial-of-service attacks” the group launched in December against MasterCard, Visa, PayPal and the UK-based Moneybookers.com.

There are not many details known. What is evident is those who are serving on the Grand Jury are working to piece together all the information that they have on Anonymous so the government might have a case, which could then lead to indictments.

Much further along in the grand jury process is the Grand Jury in Chicago. In fact, just days ago one of the activists, Hatem Abudayyeh, had his and his wife’s bank accounts frozen by the US Treasury Department. He and twenty-three activists from Chicago, Minneapolis and the greater Midwest have been subpoenaed to testify before a Grand Jury on suspicions of providing material support to foreign terrorist groups, Abudayyeh and thirteen other activists had their homes raided by the FBI back in September of last year. The activists were called to appear before a Grand Jury in October. More activists were raided and subpoenaed, bringing the total number of activists facing investigation to twenty-three by the end of the year. The activists were called to appear before the Grand Jury in Chicago on January 25 of this year. They all refused to testify.

The activists subpoenaed consider the Grand Jury investigation to be a “fishing expedition.” That, in fact, may be how Julian Assange and staff members of Wikileaks view the WikiLeaks Grand Jury investigation.

A statement on “Grand Juries” posted on the Coalition to Stop FBI Repression website explains the nature and processes of a federal grand jury.

A grand jury is a panel of jurors who hear evidence from a prosecutor and decide whether or not to charge someone with a crime. The grand jury can subpoena pretty much anyone they want and ask about anything, and people can be jailed for contempt if they do not answer questions. The jurors are hand-picked by prosecutors with no screen for bias. All evidence is presented by a prosecutor in a cloak of secrecy. The prosecutor has no responsibility to present evidence that favors those being investigated. Grand jury witnesses have no right to have a lawyer in the room to object to how the prosecutor is conducting the proceedings.

The grand jury process “dates back to the Nixon administration’s attack on the social movements of the 1970s.” One can surmise from the statement that Anonymous, WikiLeaks and antiwar, labor and international solidarity activists have become ensnared in a grand jury process that is “neither fair nor even handed, no matter who is in charge.”

A more detailed explanation of the grand jury process can be found in the archives of Firedoglake.com. User Masoninblue explains typically 17 to 23 citizens serve on the grand jury and meet once per week for about 18 months to hear witness testimony, review evidence and vote on the issuing of indictments. The Fifth Amendment requires all federal felony prosecutions to be by grand jury indictment “unless a defendant waives his right to be prosecuted by indictment and agrees to be prosecuted by information.”

A grand jury’s chief task is to vote on whether the government has “presented sufficient evidence to establish probable cause that the defendant(s) have committed crime(s) charged. Twelve members vote to approve the indictment. A “foreperson” of the grand jury hands down the indictment to a District Court Clerk’s Office.

Grand juries do not typically decline to issue indictments. All twenty-three of the subpoenaed activists are currently bracing themselves for indictments and have launched a “Pledge of Resistance” campaign to organize support for when they are indicted.

It is likely those subpoenaed in investigations of WikiLeaks and Anonymous will in the end be indicted too.

In case the process does not yet sound unfair or unjust, like something that can be used as “a tool for political repression,” consider the following:

Grand juries meet in secret and its members take an oath never to discuss what happens inside the grand jury room. The only other people present in the room when the grand jury is in session are a court reporter who transcribes the proceedings, a federal prosecutor who presents the government’s case, the case agent who is the law enforcement officer in charge of the investigation, and the witness who is testifying. Witnesses may appear with counsel, but their attorney must wait outside the grand jury room while the witness is testifying. The witness must answer all questions truthfully under penalty of perjury. The witness can request a recess in response to a question in order to consult with counsel outside the grand jury room. The witness may refuse to answer any question on the ground that a truthful answer might tend to incriminate the witness, or lead to the discovery of evidence that might tend to incriminate the witness. Since the Fifth Amendment protects this privilege to refuse to answer, no witness can be punished for refusing to answer a question on the basis of asserting the Fifth Amendment. Properly subpoenaed witnesses who refuse to appear before the grand jury, or who appear but refuse to answer questions without asserting the Fifth Amendment, may be held in contempt of the grand jury and jailed until such time as they agree to answer the question, or the grand jury term expires, whichever happens first.

These details can all be confirmed by Tom Burke, one of the twenty-three activists subpoenaed to appear before the Grand Jury in Chicago:

As an activist or any citizen, you’re called to face a grand jury where there’s no judge in the proceedings. There’s only the US prosecutor. It’s like a preemptive trial. So the US prosecutor gets to pick the 23 jurors. There’s no one from your side in the room. The US prosecutor guides the 23 through the process. They tend to want to help and identify with the prosecutor. They just hear one side of the story. When you enter the room, your lawyer is not allowed to be with you. You have to excuse yourself and go to the hallway to talk. Media is not allowed to watch it and you can’t have your family or friends support you in the room either.

The shady nature of the grand jury process has led all twenty-three activists being investigated to refuse to testify. They stand in solidarity and may face jail time. They know there may be consequences for not providing testimony, but they are convinced the Grand Jury they are being called to appear before is part of a new McCarthyism in America.

This is a choice those subpoenaed to testify in Alexandria can make. Those asked to speak on WikiLeaks’ operations can refuse to give testimony. If individuals subponeaed know the others who are being called before the grand jury, they can stand together united against a “fishing expedition” that seeks to conjure up a case.

It is not obvious or clear that any crime has been committed, but the government feels a burden, perhaps because of the political climate soured by Republican politicians, to prosecute and hold responsible at least someone they can claim was involved in recent WikiLeaks releases.

The government is likely to use information obtained through an order for Twitter user data from the accounts of three individuals linked to WikiLeaks: member of Icelandic Parliament, Birgitta Jonsdottir, Rop Gonggrijp, founder of Internet service provider XS4ALL, and Jacob Appelbaum, a computer programmer. Legal questions surrounding the obtaining of this data for investigating WikiLeaks may be all the more reason for those subpoenaed to testify to refuse to appear before the grand jury.

WikiLeaks has urged those seeking protection to contact the Center for Constitutional Rights.

US Hosts World Press Freedom Day in the Midst of Prosecuting WikiLeaks

9:49 am in Uncategorized by Kevin Gosztola

Today, the United States hosts World Press Freedom Day. The day, which was proclaimed to be May 3 by the UN General Assembly in 1993, is supposed to be an occasion for informing citizens of violations of press freedom. The day is to serve as a reminder “in dozens of countries around the world, publications are censored, fined, suspended and closed down, while journalists, editors and publishers are harassed, attacked, detained and even murdered.”

When it was announced in December 2010 the US would be hosting World Press Freedom Day, WikiLeaks had just partnered with a few media organizations to release the US State Embassy Cables. The release known as “Cablegate” led to calls from elected politicians to prosecute members of the WikiLeaks media organization. While no specific newspapers were condemned or targeted (only the New York Times was publishing cables), the calls for prosecution were in effect attacks on press freedom from those in power.

The prosecution of WikiLeaks escalated last week as federal prosecutors stepped up its investigation into WikiLeaks by delivering a letter and a subpoena to an individual in Boston, someone whom a Grand Jury in Alexandria, Virginia, would like to press for details on WikiLeaks. The letter makes it clear the Grand Jury is interested in prosecuting WikiLeaks under the Espionage Act and would like to find out if individuals working for or with WikiLeaks conspired with the leaker of the information to get information.

Without evidence of conspiracy, there can be no prosecution of WikiLeaks that would not effectively be an attack on the press freedom of well-established newspapers like the New York Times or any other news organization in the United States.

Additionally, there exists two other significant dangers to press freedom: (1) the intimidation of those individuals and organizations in the press who are not deferential to power and (2) the placement of restraints on arenas in the private and public sphere so that the reading of what used to be classified information in newspapers or on news websites is discouraged if not strictly prohibited under threat of penalty.

At a fundraiser in San Francisco for President Barack Obama, a group of supporters upset with Obama’s handling of Pfc. Bradley Manning, the individual alleged to have leaked classified information to WikiLeaks, interrupted the fundraiser and sang a song in support of Manning. Following the interruption, a few directly questioned President Obama on the arrest and detention of Manning. President Obama, allegedly not realizing a camera phone was recording, said the following:

I can’t conduct diplomacy on an open source. That’s not how…the world works. If you’re in the military, and — I have to abide by certain classified information. If I was to release stuff that I’m not authorized to release, I’m breaking the law…We’re a nation of laws. We don’t individually make our own decisions about how the laws operate… He broke the law.”

The San Francisco Chronicle’s Carla Marinucci was there to cover the protest. She shot video of protesters interrupting the fundraiser with her own camera phone. There as a part of a “print pool,” Marinucci and the Chronicle were informed after she posted video online that she had been banished from covering presidential visits to the Bay Area because she used something more than a pen and a pad to cover the fundraiser.

A strong editorial by Editor at Large Phil Bronstein was published by the Chronicle condemning the White House’s censorship and attempt at banishment. Bronstein writes:

…more than a few journalists familiar with this story are aware of some implied threats from the White House of additional and wider punishment if Carla’s spanking became public. Really? That’s a heavy hand usually reserved for places other than the land of the free.

But bravery is a challenge, in particular for White House correspondents, most of whom are seasoned and capable journalists. They live a little bit in a gilded cage where they have access to the most powerful man in the world but must obey the rules whether they make sense or not.

Bronstein acknowledges the reality that “powerful people and institutions want to control their image and their message. That’s part of their job, to create a mythology that allows them to continue being powerful.” But, he adds, “Part of the press’ job is to do the opposite, to strip away the cloaks and veneers.” Banning Marinucci, he concludes, does not just put a reporter “in a cage” but into something “more like one of those stifling pens reserved for calves on their way to being veal.”

White House spokesperson Jay Carney denied after the Chronicle published the aforementioned editorial that Marinucci had been banned, which led Chronicle editor Ward Bushee to react: “Sadly, we expected the White House to respond in this manner based on our experiences yesterday. It is not a truthful response. It follows a day of off-the-record exchanges with key people in the White House communications office who told us they would remove our reporter, then threatened retaliation to Chronicle and Hearst reporters if we reported on the ban, and then recanted to say our reporter might not be removed after all.”

Juxtapose that with what happened last week just days after Manning was flown from Quantico Marine Brig to Ft. Leavenworth, Kansas. The Department of Defense unusually chose to give a group of approved reporters a tour of Leavenworth. Col. Tom Collins, an Army spokesman, said of the tour, “We don’t anticipate doing this again. It is highly unusual that we allow media into a correctional facility run by the Department of Defense…Then again, we think it’s important that the public understand the conditions of confinement here.”

KCUR reported, “The Army wanted reporters to see the physical layout of the prison to which he was moved earlier this month from the U.S. Marine Corps Brig at Quantico, Virginia.” No cell phones or video was allowed (and nobody would violate that rule as they feared being singled out like Marinucci).

The government’s management and control of the press in the US was on display. The message was clear: If you want to cover Manning’s detention, the US government will effectively manage how you cover it. Like with the wars in Iraq and Afghanistan and the Republican National Convention in St. Paul in 2008, if you wish to cover, you will embed with power. You won’t cover power but be given quotes that make it impossible for you to not cover for power.

Former and estranged WikiLeaks media partner New York Times has helped reinforce the US government’s desire to have a lapdog press by consulting with the Pentagon on its coverage of the Guantanamo Files and the State Department on its coverage of the US State Embassy Cables. It has further cemented the subservient relationship between press and government by choosing to regard WikiLeaks as a “source” and not a publishing media organization. In seeking to cast WikiLeaks as a “source” to possibly insulate itself from prosecution, the Times may not simply be protecting itself but also promoting a climate that threatens less established members of what Yochai Benkler calls “the networked fourth estate.” Denying membership to “the club” effectively puts other journalists at “greater risks than fringe journalists have been in the United States for almost a century.”

On the placement of prohibitions to access to the published material, the Justice Department informed Guantanamo defense lawyers last week that they would not be allowed to read the released files and use them in detainees’ cases. They are to treat the material as information that is still classified.

Scott Shane of the New York Times put this into context noting:

In December, Columbia University warned international relations students that commenting on the documents disclosed by WikiLeaks online or linking to them might endanger their chances of getting a government job. The same month, the United States Agency for International Development told workers that viewing the documents on an unclassified computer at work or home could violate security rules that govern their employment. In February, an Air Force unit cautioned that employees and even their family members could be prosecuted under the Espionage Act for looking at the WikiLeaks documents at home.

Some of those warnings were quickly modified or withdrawn after attracting public ridicule. But the general principle that the leaked files remain classified remains in effect, with varying consequences.

Some foreigners applying for asylum in the United States have attached diplomatic cables printed from the Internet that describe repression in their native countries — requiring the Department of Homeland Security to store their applications in special safes and to apply cumbersome security rules.

State Department employees have confided that they read leaked cables on newspaper Web sites at home rather than risk trouble by viewing them at work. A Times reporter who appeared with a State Department official on a recent panel was advised not to show leaked cables as slides — the official was prohibited from looking at them.

Seeking to prevent access to the material indirectly impacts press freedom. If organizations and agencies are not allowed to use the reports or news, those who can most benefit from the information will begin to not seek out such information. They will become conditioned to a press that does not provide material that can be useful to their jobs or careers. As more and more arenas are controlled, more and more in the citizenry will prefer to read less controversial stories just so their livelihood is not threatened. And, if people do not wish to consume journalism that checks power, what business sense does it make to publish investigative reporting? Why invest in watchdog journalism?

Trevor Timm, who operates the Twitter account @WLLegal, explains the prosecution and isolation of WikiLeaks does not mean “nobody is going to report on national security anymore or that nobody is going to leak.” It does mean the press “will increasingly give the government discretion to go after the papers that report critically on them and not go after the papers that report favorably to them.” Because, “if somebody leaked information that made [the government] look bad, [the government] could essentially go after a paper and essentially put it out of business.”

Given the collapse in journalism and the rise of “new media,” Timm further notes, “The government can bring charges and cause a news organization to spend millions and millions of dollars they don’t have on legal defenses.” He adds, “Back when Nixon Administration started subpoenaing reporters, they fought them tooth and nail,” but suggests that if the Obama Administration went after reporters today like Nixon did they would not be able to afford taking a stand for press freedom.

WikiLeaks is a publisher. It should be afforded the same protections and rights as any blogger, journalist or media professional. Yet, the US continues its prosecution of WikiLeaks. The State Department could at least pay lip service to arguments that the targeting of WikiLeaks and those associated is unwarranted. It could make an honest assessment of the way government has chilled whistleblowing through threats of prosecution to whistleblowers. It should go beyond discussing press freedom in the context of simply ensuring bloggers and journalists should be allowed to report on tyrannical regimes in the Middle East like Iran.

There exists an opportunity for the US to not make a mockery of press freedom. A wider conversation could be had. Unfortunately, there is little indication that anyone with the ability to influence power will be moved to address the hypocrisy of the US hosting a World Press Freedom Day when those running the US are largely incapable and unwilling of upholding the universal principle of freedom of the press.

President Obama Condemns Bradley Manning’s Contempt for the Rule of Law

7:07 am in Uncategorized by Kevin Gosztola

Obama on Manning: “He Broke the Law”

At a fundraiser for President Barack Obama at the St. Regis Hotel in San Francisco, a group of progressive supporters of Bradley Manning paid tens of thousands of dollars to attend and disrupt the event. Oakland activist Naomi Pitcairn personally paid for tickets so people from her group could attend . The group sang a song with lyrics they wrote expressing their disgust with the way the Obama Administration has responded to Manning’s inhumane treatment.

Someone with the group also managed to confront President Obama on Manning. Obama’s handlers may have been preoccupied because in this clip that runs about a minute Obama opens up about what he thinks about what Manning did.

“People can have philosophical ideas about certain things,” President Obama explains. “But, look, I can’t conduct diplomacy on open source.” He then goes on to add that he has to abide by certain classified information rules or law and if he had released material like Manning did he’d be breaking the law.

Now, here is the remark that deserves the most attention: “We’re a nation of laws. We don’t individually make our decisions about how the laws operate.” He adds, “He broke the law.” Finally, before removing himself from the conversation, he says Manning “dumped” information and “it wasn’t the same thing” as what Daniel Ellsberg did because what Ellsberg leaked “wasn’t classified in the same way.”

First, President Obama says Bradley Manning did it. It is not entirely clear that he did it unless you solely rely on the chat logs published by <em>Wired</em> magazine. Manning is the alleged whistleblower in the case. And, displaying this attitude that he is guilty before he actually is put on trial and convicted may prejudice Manning’s case. In the same way that criminal and civil liberties lawyer Alan Dershowitz suggested former President George W. Bush was prejudicing the legal process against WikiLeaks founder Julian Assange when he declared he’s “willfully and repeatedly done great harm” and refused to participate in an event with Assange, Obama was making it hard for Manning to get a fair military trial.

Because consider this: if the Commander-in-Chief openly says a soldier is guilty of a crime, then what are the chance the military hands down a sentence that runs contrary to the Commander-in-Chief?

Second, President Obama’s suggestion that supporters of Manning’s alleged action want the government to have “open source” diplomacy plays to the dominant narrative. Nobody thus far has suggested that all diplomacy be conducted out in the open. Why a number of people support the disclosure of the “Collateral Murder” video, the Afghanistan and Iraq War Logs and the US State Embassy Cables is because of the extent of corruption, human rights abuses, backroom deals, lobbying for US corporations, spying, manipulation of justice, etc.

Finally, the suggestion that the US is a nation of laws and people don’t get to make decisions about how the laws operate demands clarification. He may be right in the sense that the majority of US citizens do not get to make decisions about how laws operate. But, President Obama can make such decisions and has made such decisions. He can wield the power of the unitary executive and outright skirt the law. He can promote a culture of overriding the laws of this country as well.

President Obama can defy a judge’s order, as the San Francisco Chronicle did February 28, 2009, when it filed papers refusing to allow lawyers for an Islamic organization to review classified surveillance documents related to their case. Obama can have his administration file a brief essentially saying, “This decision is committed to the discretion of the Executive Branch and is not subject to judicial review. Moreover, the Court does not have independent power” to grant counsel access to classified information “when the Executive Branch has denied them such access.”

President Obama can continue to allow warrantless wiretapping in the country that explicitly violates laws. He can choose to not oppose the notion that a President can ignore Congressional restrictions on domestic eavesdropping and violate FISA by eavesdropping on US citizens without a warrant.

President Obama can take the US to war in Libya and embrace lawlessness. He can embrace the idea that the President is the “sole organ for the Nation in foreign affairs,” continue the “ideology of lawlessness” promoted by former Bush Administration officials like John Yoo and commit to the pursuit of a mission even if Congress chooses to pass a resolution restricting or outright opposing the mission.

President Obama can refuse to follow a court order and not release photos showing torture.

President Obama can choose to not take apart the legal architecture the Bush Administration set up to give them the authority to militarily detain without charge or trial detainees at Guantanamo Bay.

His administration can cite “state secrets” privileges and prevent torture victims from obtaining justice or compensation in US courts. It can push a “targeted killing” program that could potentially be used to kill US citizens suspected of terrorism, without giving attention to the legal questions raised by such a program. It can prevent investigations of officials who likely violated the law by pushing policies of torture and abuse in prisons.

Most importantly, he can have his administration aggressively pursue whistleblowers and fine tune the law so that individuals like Thomas Drake, who allegedly leaked information about waste and incomepetence at the National Security Agency (NSA) and Bradley Manning, become examples of what happens to citizens that choose to act out against government power and expose the system.

Contrary to what he suggests, if he thinks he can manipulate the law like the Bush Administration, than he can probably release classified information selectively to the media like Julian Assange and WikiLeaks has done as well. Former vice president Dick Cheney asserted in 2006 that he could declassify whatever information he wanted because of an executive order that granted the president and him “classification authority.” Chances are the Obama Administration would be willing to suggest this order still gave them the power to release material (if necessary).

Ideally, the US is a nation of laws but in reality it is not. The Executive Branch led by the President of the United States can choose what legal restrictions to abide by and what not to and it can choose what violations of the law to prosecute and what not to prosecute.

Thus, Manning can become a captive of the American system while soldiers who committed the act shown in the “Collateral Murder” video walk free, while the superiors who promote a culture of inhumanity that leads to incidents like what is seen in the “Collateral Murder” video aren’t held accountable and while former Bush Administration officials that engaged in lawless activity go unprosecuted.