Tag Archives: Nuremberg Obligation

Julian Assange: Criminal or Benefactor?

14 Apr

Julian Assange: Criminal or Benefactor?

 

I suppose it is of interest that Donald Trump and Hillary Clinton have found something to agree about—the criminal indictment of Julian Assange.  Trump is acutely vulnerable to the exposure of truth and Clinton blames her electoral defeat in 2016 partly on what WikiLeaks disclosed about her improper use of a government computer to send private emails. Such are the perverse ways of the deeply unjust.

 

The liberal media is not happy with this indictment, although it also wants to distance itself from justifications for Assange’s claims of journalistic privilege, viewing him as a lone wolf with rogue traits. There are solemn assessments evaluating the narrowly framed government indictment charging cyber-crime, that is, publishing illicitly obtained classified documents from a digital source, apparently an apolitical everyday occurrence for government employees. What is apparently at legal issue is deciding whether or not Assange should be protected by reference to freedom of expression or prosecuted as a cyber-criminal without reference to his motivation.

 

A few commentators have noted that the main reason to go after Assange is to discourage whistleblowing of the sort most prominently associated with the disclosures of Daniel Ellsberg and Edward Snowden. Here Assange is accused of conspiring with another heroic American whistleblower, Chelsea Manning, in obtaining the documents that featured 800 Guantanamo Bay ‘detainee assessment briefs’ and more than 400,000 cables and documents relating to the wars in Afghanistan and Iraq. A particularly damaging document was a video showing deliberate bombing of civilians in Iraq by American pilots, clear evidence of a serious war crime.

 

WikiLeaks, co-founded by Julian Assange in 2006, has been dedicated all along to the ideal of transparency in state/society relations as promoted by civil society initiatives. As such, it can be viewed as a service institution of robust democracy, a needed contemporary check on gross misuses of governmental secrecy. We know from a reading of the Pentagon Papers that what made publication so provocative was the degree to which the truths about the Vietnam War were being hidden from the American people through the misuse of classification protocols. There was little in the original twelve volumes of the Pentagon Papers that the Vietnamese ‘enemy’ did not know already. The inflammatory message of the Papers was how and why the war in Vietnam was going badly while the government was disseminating to the world a rosy picture of how well things were proceeding, which had the political effect of extending an unlawful war by years at the cost of tens of thousands American and Vietnamese lives. I remember hearing George Ball speak off the record a few days after he resigned as LBJ’s Under Secretary of State for Economic and Agricultural Affairs in the late 1960s about why he dissented from the Vietnam policies. He started his talk by saying “I only began to understand the Vietnam War when I stopped reading the cables from Saigon.” In other words, the patterns of deception were withinthe government as well as betweenthe government and the public.

 

We are up against a basic challenge posed by the digital age where the government operates as a citadel of surveillance, collecting meta-data on its own citizenry as well as on masses of foreigners, threatening dissent, privacy, and theessence of freedom itself. It was these concerns that led Snowden to do what he did a few years ago, and yet be pursued around the world as if a dangerous criminal, and not at first by the Trumpist right, but by the moderate center that was in political control of the government during the Obama presidency.

 

The republican idea of governance, that is, the founding principles of the American system of constitutional governance, relied on ‘checks and balances’ and ‘separation of powers’ to restrain excesses and abuses of power by the state. Such governance was reinforced by the first ten amendments to the U.S. Constitution that conferred an array of rights on the citizenry both as protection against an overreaching state and as protection against various manifestations of ‘the tyranny of the majority.’

 

The WikiLeaks role is especially important in the war/peace context as war-mongering governments tend to exaggerate, if not lie, to mobilize public support. This vital dimension of republicanism, designed to distinguish the American political undertaking from monarchies where war was often regarded as ‘the sport of kings,’ was entrusted to Congress, the legislative branch of government most directly connected with the people. The modern security state has moved away from restraints on war making as Congress has virtually abandoned its initially vital constitutional role of authorizing recourse to war. To revitalize this kind of republican democracy requires new instruments of transparency and validation of truth telling public servants. Otherwise, as in the Trump era, democratic constitutionalism can succumb to pre-fascist demagoguery.

 

A reinforcing observation in the American context arises from the corporatization of the media, as well as an appreciation of the unseemly recent closeness of the media to the intelligence and security governmental establishment. This has definitely weakened the independent and watchman role of journalism, especially TV, as part of the checks and balances framework in relation to the war/peace agenda, including the most trusted media outlets. Listeners of CNN, let alone FOX, know too well how debate on controversial foreign policy issues is almost exclusively entrusted to ex-generals,  admirals, CIA officials, and think tank hawks. It is rare to have the opportunity to hear the views of a civil society progressive or an articulate critic of global militarism, American style.

 

In contrast, WikiLeaks is independent of corporations, media, and governments, and has since its inception been devoted to the publication of materials incriminating governments and their private sector allies. We need to affirm WikiLeaks and whistleblowing as part of the legitimate architecture of constitutional democracy in the digital age. By criminalizing anti-war or human rights whistleblowing the political system is ratifying the suicide of substantive democracy.

 

Admittedly, this generalized endorsement of such transparency assumes that the government or the private sector have no legitimate secrets. I think there should be protection of legitimate state secrets wherein the criminality of unauthorized disclosures would require the government to sustain a burden of truth beyond a reasonable doubt that the material released was not in the public interest. This is bound to be a controversial line to draw conceptually and in practice. In quite different circumstances the release of the full Mueller Report tests whether transparency will lose out to those anti-democratic forces trying to hide, or at least obscure by redaction, the extent of wrongdoing by the Trump administration.

 

In the background should be the realization that whistleblowers rarely, if ever, act without a deeply felt sense that information crucial for the public to know about is being wrongfully withheld. Even without legal repercussions there are often high costs incurred by whistleblowers in relation to career and reputation. You are forever feared as the opposite of ‘a team player,’ so important for the morale and standard operating procedures of almost all bureaucracies, but especially those of government. I know this the personal experience of friends. Dan Ellsberg and Tony Russo, the Pentagon Papers whistleblowers were forever non-legally tainted by their brave acts of true patriotism. They realized at the time that they were taking big risks of prison and would in any event pay a high price though informal dynamics of exclusion, and yet acted out of their profound feelings of loyalty to America’s professed values. And it is true that Ellsberg, in particular, has been ‘compensated’ by being lionized in civil society as an offset to being permanently invalidated as a high-level civil servant.

 

What is mainly forgotten in relation to these whistleblowing incidents is the truly incriminating content of the disclosures. In each of these prominent instances the material released there was exposed criminal conduct by the government of a kind that threatens millions of lives and confirms the most shocking suspicions about government conduct in war zones or through malicious encroachments on public liberty.

 

It seems apt to recall President Franklin Roosevelt’s 1944 message on German war crimes directed at the German people in the midst of World War II: “Hitler is committing war crimes in the name of the German people. I ask every German and every man everywhere under German domination to show the world by his action that in his heart he does not share these insane criminal desires. Let him hide the victims, help them to get over their borders, and do what they can to save them from the Nazi hangman. I ask him also to keep watch and to record the evidence that will one day be used to convict the guilty.” (emphasis added) Is this not precisely what Chelsea Manning and Julian Assange have been doing?

 

As the U.S. Chief Prosecutor at Nuremberg, Justice Robert H. Jackson, reminded the world in his opening statement at the trials, if prosecution,  conviction, and punishment of the defendants is “to serve a useful purpose” it must in the future condemn similar lawlessness by others “including those who sit in here in judgment.” In effect, if the rule of law is to govern human behavior with respect to war crimes and crimes against humanity, the sort of ‘victors’ justice’ applied to the German and Japanese losers must in the future be replaced by ‘justice,’ that is, the application of law to all who violate it. Of course, this Nuremberg Promise has been repaeatedly broken in spirit and substance, and most defiantly by the Trump/Bolton attacks on the very existence of the International Criminal Court.

 

The UN Membership unanimously affirmed that the Nuremberg Judgment was a desirable development of international law in General Assembly Resolution 95(I). In addition, the International Law Commission, the most authoritative body entrusted with the codification and development of international law formulated

The Nuremberg Principles in 1946 to formalize the impact of the trials on international criminal law. Of particular relevance is final Principle VII: “Complicity in the commission of a crime against the peace, a war

crime, or a crime against humanity..is a crime under international law.” Fairly read, this proposition would suggest that the U.S. Government moves to prosecute Assange are themselves crimes, while the acts of Assange are commendable efforts to prevent international crimes from continuing.

 

Such reasoning should also be relevant to the British judicial response to the formal American request for extradition. Of course, extradition should be denied because ‘political crimes’ are by treaty arrangement not extraditable, and if there ever was a political crime it is this apparently failed attempt by Assange to hack the password of a government computer so as to hide the identity of the whistleblower, Chelsea Manning.

 

In the context of antiwar activism during the Vietnam War I made the argument that there existed a ‘Nuremberg Obligation’ that had moral, if not legal authority. In effect, the Nuremberg Obligation in light of the material discussed above means that every person has the rightand is subject to the dutyto contribute to the exposure of violations of international criminal law in war/peace and human rights contexts. Additionally, this moral right/duty could be reasonably construed as a legal obligation.

 

Julian Assange should be judged against this background. This applies not only to the underlying criminal charge, but to withdrawal of asylum status by the government of Ecuador that led to Assange’s unseemly arrest London and to the judicial treatment of the extradition request by the British judiciary.

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Celebrating the Life and Legacy of Daniel Berrigan

10 May

Remembering Daniel Berrigan

 

I was privileged to know Daniel Berrigan in the last stages of the Vietnam War, not well, but well enough to appreciate his quality of moral radiance and to admire the spiritual dedication that he exhibited in opposing the Vietnam War, and later nuclearism. I also knew Dan’s brother, Phil, who shared these remarkable qualities, although Phil exuded an earthy embrace of life while Dan seem to keep his distance from quotidian pursuits by living a meditative life as a poet and devoted member of the Jesuit order, as well as being inspirational anti-war activist. In contrast, Phil gave up the priesthood to marry Elizabeth McAlister, herself a former nun and a deeply committed lifelong partner with respect to social and political engagement. Together they established Jonah House (community nonviolence center) in Baltimore that continues to serve the poor and stand for peace and justice in our society and in the world. Despite leaving the Church in a formal sense, Phil never departed from his religious vocation and Christian commitment, to help the poor and struggle against abuses of state power. As I recall when I was in contact with them, because of their parental and community responsibilities, Phil and Liz took turns engaging in the kind of political actions likely to land them in prison, both exhibiting this extraordinary willingness to sacrifice their freedom to exhibit the seriousness and depth of their engagement in the struggle against injustice and evil.

 

Actually, I knew Liz socially before she and Phil were publically together, finding her an astonishingly lively, warmly challenging, and playfully serious personality; Eqbal Ahmed was our close common cherished friend responsible for our initial meetings, and Eqbal and Liz were both Harrisburg defendants being accused of dreaming up the kidnapping caper, which was a fanciful caper that was taken seriously only by our paranoid government security services that had planted an informer in Phil’s prison cell and then proceeded to act as if phantasy was plot. At the same time, it was not so fanciful if international law was taken as seriously as it deserves to be, and the dangers of allowing Henry Kissinger to remain at large were as understood as they ought to be.

 

It is perverse how our government continues to prosecute as criminals those who are its most loyal patriots (for instance, Edward Snowden, Chelsea Manning) and rewards with the highest offices of the land and the greatest honors those who degrade the nation by rampant militarism responsible for massive suffering in distant lands.

 

My contact with Dan, Phil, and Liz, as well as other Catholic anti-war activists, resulted from my participation in several criminal trials, acting on their behalf as an expert witness. Two trials stand out in my mind—the Harrisburg 7 trial in 1971 held in Harrisburg Pennsylvania of seven defendants, including Phil and Liz (Dan was noted in the government complaint as an unindicted co-conspirator); and the Plowshares 8 case in the early 1980s that resulted from an action damaging the nose cones of the Mark 12A missile and pouring blood on documents while trespassing on the General Electric Nuclear Re-entry Division, located at King of Prussia, Pennsylvania. My main contribution was to visit Ramsey Clark in his Washington office, shortly after he had resigned at Attorney General, and persuade him to represent the Harrisburg defendants, which he did in an effective and deeply committed manner that changed him forever.

 

I also testified in both trials. My line of testimony was along two major lines: first, that it was reasonable to believe that the conduct of the Vietnam War and the development of nuclear weapons were contrary to international law; and secondly, since the Nuremberg Judgment against surviving Nazi leaders after World War II it was reasonable for individuals to believe that they had a right, and possibly, a duty, to act nonviolently in an effort to oppose internationally unlawful behavior on the part of the government.

 

It was apparent to me that the motivation for the actions undertaken by the Berrigans derived from their profound devotion to pre-Constantine Christian ethics, and was coupled with an ambivalence toward institutionalized Christianity. At the same time I felt that both Dan and Phil, in their separate styles, welcomed the legal reinforcement that my testimony attempted to provide. It overcame the widely voiced liberal objection that such disruptive behavior as burning draft cards or damaging potential nuclear weapons was unacceptable in a democratic society as it claimed the right to take the law into one’s own hands, and thus warranted indictment, prosecution, and punishment, and at best, represented ‘civil disobedience’ in the Thoreau sense of exposing the immorality of the law on the books but at the same time backing the governmental responsibility to uphold the law as it existed.

 

Reliance on international law and what I called ‘the Nuremberg obligation’ offered an objective platform upon which to rest such symbolic challenges to lawlessness on the part of the state. In effect, the defense rested on the necessity of such exceptional acts of obstruction as part of a wider effort to halt this lawlessness in view of the failure of governmental institutions to uphold what they believed the law required with respect to war and peace. In this regard, what the Berrigans did was more radical than civil obedience, contending that the government and political leaders were engaged in criminal activities that needed to be stopped by all possible nonviolent means. In this fundamental sense, what the Berrigans di should not be confused with the challenge to the morality of law mounted by Thoreau. The Nuremberg tradition provides a normative foundation for engaged citizenship, and claims that the sovereign state is itself constrained by law, which if it disobeys in matters of war and peace should politically empower citizens to act as enforcers of this higher law.

 

In a manner similar to whistleblowing, these kinds of anti-war actions undertaken by citizens should be appreciated as a populist check on war making and criminality by the state. We the people should support such defiance with gratitude and celebrate its occurrence as signs of democratic vitality and vigilance. This post-modern supplement to republican constitutionalism, distinguished by its reliance on checks and balances, seems currently more necessary than ever given the failure of Congress to fulfill its constitutional responsibility to agree upon a declaration of war as a prerequisite to lawful war making and even more so, given the regulation of recourse to war that is part of contemporary international law and is the core undertaking of the UN Charter, an international treaty, that by virtue of Article VI of the US Constitution is ‘the supreme law of the land.’ In this respect, what Dan and Phil believed with their whole being was the sacred importance of repudiating aggressive war making and reliance on weapons of mass destruction, and holding the state and its representatives, including in relation to their own country, fully accountable if they fail to uphold and respect obligations under international law. This is their moral, political, and legal legacy that should be reminding all of us that passivity in a constitutional democracy should be condemned as a form of lethal complicity in the nuclear age. That such a message seems ‘radical’ is itself a sign of democratic entropy and fatigue. The degree to which the citizenry of this country has been pacified at the very moment when it desperately needs to be awake and vigilant should alarm us all.

 

In these respects, honoring our remembrance of Daniel Berrigan, including being attentive to his poetry that was an organic dimension of his moral and spiritual witnessing, is both a gift and a challenge. What I find most enduring about the lives of the Berrigan brothers is its call to all of us to act as engaged citizens if we want to save our planet from depravities of war, injustice, and avoidable ecological collapse.

 

By highlighting the significance of Dan’s personal resistance to abuses of state power, I would not want to leave the impression that this signified all that made him special. Even aside from such public contributions, it was apparent to all whom Dan touched in the course of his long life that he was an exceptional human being, transparent in moral and spiritual coherence, mindful in his attentiveness to the suffering and wellbeing of others, a powerful and unforgettably vivid and loving presence, a challenge to our daily complacency. In the end, I will keep remembering Dan and Phil as an inspiration and as a challenge, as well as appreciating Liz for all that she continues to achieve by way of spiritual community.