Tag Archives: whistleblowing

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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The Confused Russian Hacking Debate, Trump Victory, and U.S. Global State

18 Dec

 

 

The U.S. Government, with the collaboration of a disturbingly compliant media, seems to have discovered a deeply rusted version of The Golden Rule: “Do not permit others to do unto you, what you have repeatedly done.” Everybody in the slightest degree attentive to the way world works, knows that espionage and covert meddling in foreign elections has long been a standard weapon in the arsenal of geopolitical diplomacy. The U.S. proudly thwarted the electoral success of Communist Parties in Europe after World War II, not to mention countless interferences large and small, overt and covert, in elections throughout the Global South, with an especially dark record in Latin America (“so far from God, so close to the United States”). Beyond that, if the outcome of democratic elections should produce leaders that pursue policies that disturb Washington such as nationalization of resources, adoption of leftist policies, friendship with U.S. adversaries, more than meddling is likely to follow. Such a government can depend vary degrees of delegitimation, destabilization, sanctions, and eventually even military intervention. This pattern has been frequently relied upon in the past, and there are several current instances. (Iran 1953, Guatemala 1954, Chile 1973, to name a few instance of reversing political outcomes that our elected leaders deplore); Iran, Venezuela are examples of present instances. [On Chile see authoritative article by Ariel Dorfman, “Now Americans Know How Chile Felt,” NY Times, Dec. 17, 2016.]

 

The mainstream media in the West has focused relentless outrage on claims of Russian hacking of the American electoral process without even taking note of relevant American practices. The establishment’s most trustworthy public voice of imperial reason, Thomas Friedman, refers to Russian behavior as an ‘act of war.’ The very slippery ex-CIA Deputy Director, Michael Morel, uses even more inflammatory language, describing Russian hacking as ‘the political equivalent of 9/11.’ There are numerous raucous calls for a ‘proportionate response’ by the United States including even such provocative and punitive acts as equipping the Ukraine with offensive weaponry. What is extraordinary, even for those familiar with the geopolitical dimensions of world politics, is for this debate and discourse on alleged Russian hacking to proceed with no questions asked about the thick dossier of comparable American electoral meddling all over the world over the course of decades, including taking much more direct forms via bribery, assassination, and assorted other consequential interferences than anything the Russians have done.

 

When we think further about what has been hacked, the hullabaloo is comedic. Wikileaks is accused only of leaking the awkward disclosures of internal Democratic National Committee documents that revealed embarrassing Democratic staff concerns about the way Hillary Clinton was handling her emails and confirming that the DNC actively worked to undermine the primary prospects of Bernie Sanders. If another Snowden had done the original hacking, it would be treated as another case of whistleblowing with ambiguous consequences. The disclosures would be an admittedly controversial status, especially objections to the intrusions on the privacy, really secrecy, relating to the way political parties manipulate the American electoral process. At the same time the emails allowed citizens to know parts of shabby goings on behind the scenes of party politics. Is this truly an interference with American democracy of a magnitude that warrants dangerously escalating international tensions? Barack Obama, while reacting with calm language, goes along with these exaggerated reactions, falsely implying by silence an American innocence of undertaking similar to, and often far worse than what the Russians, under Putin’s direction, are alleged (without even some supportive evidence) to have done.

 

What is more fundamentally at stake is a challenge directed at the one-sided prerogatives of the United States as the first aspiring ‘global state’ in all of history. The Russians violated the First Law of Geopolitics as implemented by the United States in its role as global state: “You are prohibited from doing to us, what we are doing to you and others.” The Second Law: “You will be severely punished if you violate the Fist Law.” The Third Law: “You are forbidden to object to, or even mention, the First and Second Laws of Geopolitics.” The Fourth Law: “The public media is expected to express outrage when the First Law is violated, call for the implementation of the Second Law, while remaining quiet about the presence of double standards and moral hypocrisy.

 

This way of interpreting right and wrong, or the application of law, inverts normal understanding and expectations. What we expect is that all states are either subject to a legal constraint or that it doesn’t exist. We do not expect some to be subject to constraints and one or more others to be entitled to have discretion to act as it wishes, and do so with impunity. Yet international society has long formally and informally allowed power to take precedence over law and the legal ethos of equality. Even the United Nations Charter in establishing the Security Council embedded geopolitics in the formal structure of the world organization by granting the five winners in World War Two with permanent membership (P-5) and the right of veto. This combination means effectively that for these five states compliance with international law is completely voluntary and only those decisions that meet the approval of the P-5 become mandatory. Put more vividly, the UN was able to act decisively in Libya (2011) because there was no veto, while in relation to Syria over the course of the last five years there has been no capacity for the UN to act due to the right of veto threatened and exercised by Russia and China. Another example–Israel has been consistently shielded from UN censure by the Security Council over the years due to U.S. reliance on its veto power.

 

The geopolitics of the global state are similarly structured, although less explicitly. Standards of criminal accountability apply effectively only to losers of major wars (Germany, Japan after World War Two) or countries in the Global South. The United States has exempted itself from any prospect of accountability except by symbolic actions resulting from civil society initiatives. For instance, during the Iraq War of 2003, there took place a series of legal inquiries conducted under civil society auspices. These culminating in a session of the Iraq War Tribunal in 2005 that reached conclusions through its jury of conscience that the United States and the United Kingdom, and their leaders and collaborators, were guilty of aggressive war and violations of the laws of war. The Western press in the liberal democracies upheld the 4th Law of Geopolitics by maintaining a steadfast silence about these proceedings, although the Iraq War Tribunal proceedings carefully documented its findings and enjoyed the participation of some of the world’s leading jurists.  

The same pattern with minor variations applies across the board with respect to global security issues. The nuclear weapons regime is a prime example, with the United States, in particular, using the instrument of ‘counter-proliferation’ to justify aggressive war and to ignore completely the reciprocal legal duties imposed by the Nonproliferation Treaty. Iraq was invaded, Iran and North Korea repeatedly threatened, because of the geopolitical resolve to avoid Iraqi acquisition and possession of nuclear weaponry despite credible security arguments that such weapons were needed to deter hostile adversaries. As is certainly relevant to the hacking debate, prior to the Iraq War the intelligence community was similarly unified in supporting the false contention that Iraq possessed stockpiles of weapons of mass destruction and was actively pursuing the development of the capability to produce nuclear weapons. The head of the CIA at the time notoriously reinforced this intelligence consensus by calling it ‘a slam dunk.’

 

The nuclear weapons states, as part of the nonproliferation bargain to induce other states to forgo the weaponry, promised back in 1968 to engage in good faith negotiations to achieve nuclear disarmament along the way to demilitarization and general and complete disarmament. Although the International Court of Justice in 1996 unanimously upheld this interpretation of the treaty obligations of the nuclear weapons states there has been no movement in the direction of compliance. In fact, Barack Obama, awarded the Nobel Peace Prize partly because of his anti-nuclear posture, approved of a $1 trillion dollar modernization and development program for the American nuclear arsenal over the next thirty years and for the eight years of his presidency has never called upon the United States and other nuclear weapons states to implement their clear NPT treaty obligation.

 

The same geopolitical structure is present with respect to ‘humanitarian intervention’ and general standards of compliance across the spectrum of human rights violations, ranging from torture to judicially enforced racism. The West under American leadership operates as if it enjoys a right of intervention, preferably to be exercised with UN backing, and a corollary tacit right to be free from reciprocal claims even to correct its most flagrant human rights abuses. When the George W. Bush presidency overtly relied on and justified interrogation practices widely viewed as torture, there was no call for the implementation of the international legal disallowance of torture and related abuses of human rights. For the United States to renew a reliance on waterboarding is, at best, a matter of policy, while for other countries such practices would be regarded as a matter of law.

 

My friend and colleague, Rich Appelbaum, raises an important point. Granted this kind of interference has been used a major foreign policy instrument of the United States, what Russia apparently did with respect to hacking and possibly even tilting the election in Trump’s favor is clearly undesirable, and should be treated as unacceptable. Yet even here the context is complex. First of all, to retaliate against Russia without even acknowledging that the U.S. Government has habitually interfered in foreign elections creates a false consciousness among the American people and invites accusations of hypocrisy.

 

There is also a deeper problem associated with security in a state-centric world with a weak UN. If our leaders were confronted by a foreign election in a major state in which one of the candidates was a warmongering extremist and the opponent a moderate, would it not be rational, and in the national, and even the global interest, to do all that could be done to tilt the election away from the extremist. From the Kremlin’s perspective, Hillary Clinton was perceived as hostile and militarist, while Donald Trump was evidently regarded as friendly and supportive of a lower American military profiles, especially in the Middle East. I think these perceptions are faulty overall, but all the evidence suggests that such views are widely believed in Russia and sincere.

 

Regulating the use of cyberspace is decidedly a gray area. International law and the UN Charter give little guidance beyond the vague directive to respect territorial sovereignty. This Russian hacking incident may serve to provide the political impetus for a lawmaking treaty binding all countries to a framework that at least establishes guidelines for governments of sovereign states to follow. Even if such a framework can be agreed upon, a big if, there are many areas of doubt as to what is best considering the present structure of world order. A first question is whether to keep cyberspace as a playground for geopolitics, and a second is whether it is desirable to prohibit all forms of meddling in foreign societies, and their elections and internal politics, no matter how dangerous and malevolent we perceive foreign developments to be. In a globalizing, interdependent, and nuclear armed world it would be playing with species suicide to decree by law, morality, and practice detachment from developments in foreign societies that pose deep threats beyond territorial borders.

 

In the end, perhaps, the best solution is to treat such hacking incidents and related disclosures the same way as espionage. Our spies are heroes, rewarded and honored in various ways, their spies are notorious intruders subject to the harshest punishments that criminal law can impose. Espionage goes on by every conceivable means, including increasingly reliance on the best tools that innovative technology possesses. The ‘game’ played is to defend our ‘secrets’ against foreign spies and domestic whistleblowers by all available means, but to do everything possible to learn their secrets. We can hope for prudence, but little more, in this double game, and maybe this is the way to handle hacking intrusions in our political space: scream about violation of our electoral process, while doing our best to exert control over theirs, but not succumb to the sort of outrage that raises international tensions in dangerous ways. We should take account of the fact that sometimes espionage provides information about adversaries that is reassuring, and discredits domestic hawks calling for dangerously adventurous policies.

 

I am someone who fervently wished, despite strong reservations about Clinton’s foreign policy inclinations and past record, that Clinton has won the election by norms of the electoral college as well as a result of the popular vote. I regret deeply the Russian role in hacking the DNC, their failure to disclose the RNC hacks, and deplore their profoundly flawed judgment in believing that they and the world would be better off with a Trump presidency.

 

In conclusion, I have long opposed American interferences in the political life of foreign countries, believe in accepting the outcome of the dynamics of self-determination, and have long thought the United States and the rest of the world would be better off if the government accepted the discipline of international law as setting limits on foreign policy options. In my view, such a realization is the unlearned lesson of the Vietnam War. I would repudiate the four laws of geopolitics, and opt instead for a global leadership role for Washington based on the rule of law.

 

Of course, we should not embrace international law, or any law, with illusions.

Law can be twisted in contradictory ways by legal experts. Law often is an instrument of geopolitics. Nevertheless, with eyes wide open, international law, diligently applied in accordance with a culture of human rights and peacemindedness, is a better guide for the national and global future than geopolitics.