The Colorado Territorial Correctional Facility was constructed in the late 1800s when the state of Colorado was still a territory. It is the oldest prison in the state’s prison system. It is also is the site, where the first compilation album for Die Jim Crow Records was recorded.
Die Jim Crow is the first record label in the United States dedicated to incarcerated musicians. The label recorded seven musicians at Territorial in Cañon City in April 2018.
The tracks laid down during these sessions represented an array of genres—Americana, indigenous Nahuatl chant, blues, and hip hop, etc—and matched the diversity of the musicians, who were indigenous, Black, queer Jewish, and white. Some of these men are serving life sentences.
“In the 150 years since the prison’s construction, ‘TLAXIHUIQUI’ is the first recorded music to make it outside the forbidding walls of Territorial into the free world,” according to Die Jim Crow Records.
Shadowproof is honored to premiere “Battlecry” from “TLAXIHUIQUI.” It was created by Dane “Zealot” Newton, who is a Black musician at Territorial.
“It was like me writing something to rid myself of a certain past that I was carrying,” Newton said of “Battlecry” in an interview done by Die Jim Crow Records. “It was me trying to come to understand my past and where I was at that point.”
Newton shared, “Just me growing up the way I was, in an abusive environment and me not knowing how to deal with that, growing up in that environment.”
Opening up even more, Newton added, “My mom had me when she was 14. My father was 19. And he took off immediately, so you grow up in that kind of world where it’s watching your mom do drugs and come in and out of these abusive relationships.”
“I think you have to be honest about the brokenness in everybody, especially your own [self], before you can move forward. You gotta look yourself in the mirror.”
Newton’s first three years of incarceration were from 2007 to 2009. He felt everything stripped away from him. He questioned how he would deal with relationships moving forward, and he eventually learned to write and play music.
“I’ve always sang, but I was never really able to write my feelings, or play any instruments. So, the whole process of me writing music, and singing was me cleansing myself, ridding myself, confronting my past, confronting my failures, being willing to put it all out there.”
“Battlecry” centers on the struggle of asking forgiveness. “For the people I’ve harmed and the relationships I’ve damaged, I feel like even today, knowing who I am as a man, I still cannot reach back and ask them for forgiveness.”
“I feel like I would still be out of line, and out of place to ask anyone for forgiveness. Because now in my maturity, not just as a man, but as a human being, you realize just the devastation, the scars that you inflict on people.”
Die Jim Crow produced a video that Newton particularly liked because of its blooming flowers. He said it reflects a “person coming into, growing into, moving forward, or towards something.”
It’s been awhile since Newton was able to pick up a guitar at Territorial. “The funny part is, I’ll get this melody going and this rhythm, and I’ll start writing something. But my memory is bad so then I’m like, what was the melody? And if I start a beat on the wall in here, I don’t think these dudes would like that.”
Newton laughs and mentions that he sometimes waits in his cell until it is late at night. With everyone sleeping, he sits up and starts a rhythm.
*Watch or listen “Battlecry” by Dane “Zealot” Newton
This article was funded by paid subscribers of The Dissenter, a project of Shadowproof. Become a paid subscriber and help us expand our work.
Attorneys for WikiLeaks founder Julian Assange plan to appeal to the Supreme Court in the United Kingdom after the country’s appeals court overturned a decision that blocked the extradition of Assange to the United States.
The High Court of Justice was “satisfied” with diplomatic assurances offered by the U.S. government related to how Assange would be treated in jail or prison, and they stated, “There is no reason why this court should not accept the assurances as meaning what they say.”
“There is no basis for assuming that the U.S.A. has not given the assurances in good faith,” the High Court also insisted.More significantly, the High Court remitted the case back to the district court and instructed a district judge at this level to send the request to the Secretary of State in the Home Department for extradition. The Home Department previously allowed the extradition request to be considered by a district court.
The High Court decision came on Human Rights Day, a day marked by countries in the United Nations, and the decision was immediately condemned by press freedom and human rights groups, and various other civil society organizations throughout the world.
Assange is detained at Her Majesty’s Prison Belmarsh in London, a high-security prison where he has been held since he was expelled from the Ecuador Embassy on April 11, 2019. He faces 18 charges—17 of which are charges under the Espionage Act.
The Espionage Act is a U.S. law passed in 1917 that the Justice Department has increasingly wielded against media sources who share “classified” documents or talk about sensitive information with journalists.
Assange’s attorneys at Birnberg Peirce indicated their “appeal to the Supreme Court would relate to the question of the assurances. Appeals on other important questions, including questions of free speech and on the political motivation of the U.S. extradition request, have yet to be considered by an appeal court.” (They will likely be considered after an appeal of this decision.)
“This decision marks a disastrous turning point for journalists and journalism around the world,” declared Rebecca Vincent, the Reporters Without Borders director of international campaigns. “It falls on the very day when we should celebrate the presentation of the Nobel Peace Prize to two journalists and urge states to respect their commitments to press freedom, which they have just reaffirmed at the Summit for Democracy organized by United States.”
“We call on the U.S. government to truly lead by example and to close this case now, before it does any more damage. Julian Assange should be released immediately and steps should be taken so that no other journalist, editor, or source can be targeted in this way.”
“This is a travesty of justice. By allowing this appeal, the High Court has chosen to accept the deeply flawed diplomatic assurances given by the U.S. that Assange would not be held in solitary confinement in a maximum security prison,” said Amnesty International’s Europe director Nils Muižnieks. “The fact that the U.S. has reserved the right to change its mind at any time means that these assurances are not worth the paper they are written on.”
Stella Moris, who is Assange’s fiancé, called the ruling a “grave miscarriage of justice.” Outside the courthouse, she reacted, “Today is international Human Rights Day. What a shame. How cynical to have this decision on this day, to have the foremost publisher [and] journalist of the past 50 years in a U.K prison accused of publishing the truth about war crimes, about C.I.A. kill teams.” “In fact,” Moris continued, “every time we have a hearing, we know more about the abusive nature, the criminal nature of this case.”
The U.S. government offered diplomatic assurances after Judge Vanessa Baraitser denied the extradition request on January 4.
According to the assurances put forward, the U.S. government would not impose special administrative measures (SAMs) on Assange before trial or after he was convicted. However, it contained a major loophole. If Assange committed a “future act” that “met the test” for SAMs, the U.S. would designate him for such restrictive confinement conditions. They did not specify what type of acts might justify abandoning this assurance.
The U.S. government pledged that Assange would not be designated for ADX Florence, a supermax prison in Colorado. Yet similar to the assurance to not impose SAMs, they indicated if Assange commits a “future act” that meets the “test for such designation” he could still be confined in a maximum security prison.
Prosecutors pledged to allow Assange to apply for a prisoner transfer to Australia to serve his U.S. sentence under the Council of Europe Convention on the Transfer of Sentenced Persons.
WikiLeaks founder Julian Assange. Artwork by Paul Lacombe.
If Assange was extradited and held in a U.S. jail or prison, the U.S. pledged to ensure he received “clinical and psychological treatment” as recommended by a “qualified treating clinician employed or retained” by the facility where he is held. But if a facility lacked resources or the psychologist of staff did not conclude that Assange needed a higher level of care, he might not receive treatment.
“The first and fourth assurances wholly exclude the possibility of Mr. Assange being made subject to SAMs, or detained at the ADX, either pretrial or after conviction, unless, after entry of the assurances, he commits any future act which renders him liable to such conditions of detention,” according to the High Court decision. “It is difficult to see why extradition should be refused on the basis that Mr Assange might in future act in a way which exposes him to conditions he is anxious to avoid.”
Such a statement by the High Court accepts there are no political motives behind the extradition, and none of the U.S. officials involved in the prosecution intend to inflict harm on Assange.
The High Court determined the U.S. has “made its decision as to how it will respond to any request” for a prisoner transfer to Australia if Assange is convicted. They gave “as explicit an assurance as it can.”
“The reality is that this court is being invited to reject the U.S.A.’s assurances either on the basis that they are not offered in good faith or that they are for some other reason not capable of being accepted at face value,” according to the High Court. “That is a serious allegation,” especially since “the United Kingdom and the U.S.A. have a long history of cooperation in extradition matters, and the U.S.A. has in the past frequently provided and invariably fulfilled assurances.”
But journalist Richard Medhurst obtained documents related to the 2009 extradition of David Mendoza Herrarte from Spain to the U.S. Diplomatic assurances were given by the U.S. government to Spain, but the U.S. violated those assurances.
Mendoza was accused of drug trafficking. As the Assange legal team recounted in a filing submitted to the High Court, “The Spanish Court made Mendoza’s extradition conditional on prisoner transfer back to Spain to serve any sentence. In response, the U.S. provided the same assurance offered here to the Spanish Court.”
“Upon surrender, the prosecution did, as promised, consent to the application. It was then, however, refused by the [Justice Department]. When the Spanish court complained of the ‘clear breach’ of the assurance, the U.S.A. retorted that ‘the U.S. did not make and therefore could not and did not renege on a promise guaranteeing that Mendoza would comply with the sentence imposed in Spain.”
“The promise that was made at the time,” U.S. authorities claimed, was that Mendoza could apply for protection under the Treaty of the Council of Europe to serve his sentence in Spain.
Similarly, all the U.S. government is saying at this stage is that they will consent to an application from Assange for prisoner transfer, which is relatively meaningless, and they are not saying they would grant the application.
Amnesty International previously stated the so-called “assurances” upon which the U.S. government relies “leave Mr. Assange at risk of ill-treatment,” are “inherently unreliable,” and “should be rejected,” adding that they are “discredited by their admission that they reserved the right to reverse those guarantees.”
Though it did not persuade the court to uphold the district judge’s decision, the High Court concluded Baraitser did not make an error when she applied a test and determined extradition would be oppressive for health reasons.
“We bear in mind that the judge had to take into account the evidence of a witness called by Mr Assange, who considered the [Alexandria Detention Center] to be a very well-run jail, accepted that there had been no successful suicides at the ADC since its last inspection in 2017, and considered that the ADC had ‘a stellar record’ on preventing suicide.”
The High Court continued, “She had to take into account the evidence that Mr. Assange would be entitled to a speedy trial within 70 days, and that the suggested delays caused by pre-trial motions would not arise if he chose to take advantage of that speedy trial provision. She also had to take into account the possibility that Mr. Assange, who asserts that he has a complete defense to the charges against him, will be acquitted.”
“She had to consider carefully whether the required link between Mr. Assange’s mental condition was satisfied when the evidence was that he would pursue his intention to commit suicide with a ‘single-minded determination.’”
The High Court was sympathetic but ultimately rejected the ground for appeal that amounted to an attack on the professional reputation of Professor Michael Kopelman. He is a clinical psychiatrist who provided the most comprehensive assessment of Assange’s condition in 2019 during the immediate months following his arrest and expulsion from the Ecuador Embassy.
Declassified U.K. reported days before the announcement that Assange’s “fate” was in the hands of an appeal judge, Lord Chief Justice Ian Burnett, “who is a close friend of Sir Alan Duncan, the former foreign minister who called Assange a ‘miserable little worm’ in parliament.”
“The two have known each other since their student days at Oxford in the 1970s, when Duncan called Burnett ‘the Judge.’ Burnett and his wife attended Duncan’s birthday dinner at a members-only London club in 2017, when Burnett was a judge at the court of appeal.”
Duncan was “the key official in the U.K. government[’s] campaign to force Assange from the embassy,” according to Declassified U.K. Through a feed in an “operations room” in the U.K. Foreign Office, he watched the British police drag Assange from the embassy to a van. He could barely keep a smirk off his face and later traveled to Ecuador to personally thank President Lenín Moreno for expelling Assange.
Burnett was not present for the announcement of the decision. Lord Justice Timothy Holroyde announced the decision during proceedings that lasted a little more than ten minutes.
This article was funded by paid subscribers of The Dissenter, a project of Shadowproof. Become a paid subscriber and help us expand our work.
Prisoners and prison staff at Her Majesty’s Prison Edinburgh in Scotland, or Saughton Prison, faced a serious outbreak of COVID-19 at a time when inmates were explicitly discouraged from requesting COVID tests, according to diplomat-turned whistleblower Craig Murray.
“There was a major COVID outbreak in the prison in the last 6 weeks of my incarceration,” Murray recalled. While COVID was present in the prison throughout his stay there, Murray said that between October 20 and November 20, “there were more than 200 positive tests for COVID in the jail.”
“That’s 200 out of a population of 900,” he added, emphasizing that all of these prisoners would have been symptomatic. (Prisoners who weren’t symptomatic were not tested.)
While the Scottish government urged the entire population to test themselves with lateral flow tests more than twice a week, whether they had symptoms or not, it was difficult for prisoners to get a test.
On December 1, one day after his release from prison, Murray spoke in an exclusive interview to The Dissenter. He was the first journalist to be imprisoned for media contempt of court in Scotland in over 70 years, according to his defense team.
His conviction stemmed from his coverage of the sex assault trial of former Scottish First Minister Alex Salmond. Murray, a longtime supporter of Scottish independence, appears to have fallen foul of a split within the Scottish National Party (SNP) over how strongly the administration of the current First Minister Nicola Sturgeon is pushing for independence.
As the Omicron variant of the coronavirus spreads through Scotland and the wider United Kingdom, and authorities claim they are taking action to prevent outbreaks, Murray’s account of his time in prison once again focuses attention on a vulnerable prison population often neglected during the pandemic.
“When people started going down like flies all around me, I applied for a COVID test, which I did orally. I didn’t get a response so I put in the application in writing. Two weeks after that I became unwell and had some symptoms, largely upset stomach symptoms. And at that stage, because I was ill they gave me a COVID test, but in general, prisoners who didn’t have symptoms weren’t tested.”
Prisoners in the cells on each side of Murray became ill with COVID, though the cells themselves are not “hermetically sealed” and the window, which is separated by bars, cannot open to let in fresh air.
Murray said staff discouraged prisoners, even the symptomatic ones, from asking to be tested in an environment Murray described as “filthy” with rats scurrying around cells.
One prisoner Murray spoke to had symptoms, including a cough, tight chest, and difficulty breathing. They asked for a COVID test from a nurse. “The nurse had said to him, are you sure you want a COVID test? Because if you’re positive you’ll be banged up basically in solitary confinement for three weeks. So, are you sure you want one?”
Murray believes the combination of failing to mass test prisoners whilst also discouraging prisoners from getting tested, meant that authorities were in effect falsifying the COVID-19 figures within Saughton.
I Thought They Were ‘Attempting To Kill Me’
The Dissenter interviewed Murray at his office in his family home, which is situated within a quiet suburb of Scotland’s capital, Edinburgh.
His face was freshly smooth after his wife Nadira took him for a hot Turkish shave only a couple hours earlier, removing a beard which grew considerably during his incarceration.
“It’s a very unpleasant experience,” Murray stated in a manner that was relaxed but also introspective. “I was confined in a cell, which was 12 feet by 8 feet. I was confined in that for a minimum of 22 hours a day. For much of the period of 23 hours a day, with very little association with other prisoners,” he said.
He was “surrounded by the noise and antagonisms of a jail, which contains a lot of… percentage of the population who are violent or problematic in other ways. They may be suffering from drug addiction and withdrawal for example, but there’s an awful lot of noise clatter and apparent hostility in the background, sounds you hear as you’re locked in your cell.”
Murray, who is 62 years old and has heart and lung conditions that make him “highly vulnerable” to COVID-19, found he was surrounded by people catching the virus and falling ill. He considers it quite extraordinary that he was left in such a situation and did not contract the virus.
“It led me to have seriously paranoid thoughts whether they were attempting to kill me. It really was and is to me incredible that you would leave a highly vulnerable person deliberately exposed to COVID in that way,” Murray shared.
Campaign organizations and health experts in the U.K. have made repeated calls over the past two years urging that the rights of prisoners be protected during the pandemic; that they have the same healthcare access as the public and measures be taken to avoid prison outbreaks.
In May 2020, the heads of multiple United Nations organizations, as well as the head of the World Health Organization, signed a statement urging political leaders to “consider limiting the deprivation of liberty” to a measure of “last resort, particularly in the case of overcrowding, and to enhance efforts to resort to non-custodial measures,” including release mechanisms for those “at particular risk of COVID-19, such as older people and people with pre-existing health conditions, as well as other people who could be released without compromising public safety.”
The Scottish government released nonviolent prisoners early in order to reduce the risk of COVID outbreaks but ended that policy shortly before Murray would have benefited from it. It is unclear as to why the policy was terminated.
As Murray recounted, the majority of prison staff in his wing caught COVID and took time off work sick. Some of them were “quite seriously” ill.
“One of them was off for approximately six weeks, and when he came back he had lost a huge amount of weight, and he had trouble speaking. His voice was just totally different. He plainly had been very ill indeed.”
“Prison staff did their very best in very difficult circumstances”, Murray contended, “displaying extraordinary courage” as they took meals into each cell and dirty dishes out every day with only very rudimentary personal protective equipment (PPE).
But staff were “spreaders of the illness as they went around from cell-to-cell administering to the prisoners who were locked in.”
The Central Intelligence Agency’s record of retaliation against WikiLeaks founder Julian Assange, including reported plans to kidnap or assassinate him, was focused on during the second day of the United States government’s appeal hearing.
It was part of the Assange legal team’s effort to convince the High Court of Justice in the United Kingdom of the gravity of the risks, which Assange would face if they overturn a district judge’s decision and allow extradition.
Mark Summers QC, one of Assange’s attorneys, contended this was the “first time the U.S. had sought the assistance of a U.K. court in obtaining jurisdiction” over a person that a U.S. government agency had planned to poison or assassinate.
“That is worthy of an investigation in relation to the assurances,” Summers added, referring to the pledges involving how they would treat Assange. The U.S. government offered these “assurances” with the hope of salvaging their case.
On January 4, District Judge Vanessa Baraitser concluded it would be “oppressive to extradite” Assange to the U.S. because of his mental health condition. However, she kept him detained at the Belmarsh high-security prison while the U.S. government pursued their appeal.
Assange was charged with 18 offenses, 17 of which are under the Espionage Act. The law passed in 1917 has increasingly been wielded by the Justice Department against media sources, who disclose “classified” documents or talk about sensitive information with journalists.
After two days of proceedings, the High Court indicated it would take some time to fully consider all the arguments and issue a decision. But whatever they decide, there will still be a cross-appeal that the defense has indicated they plan to submit to challenge the parts of Baraitser’s decision that are particularly threatening to press freedom.
Also, both the U.S. government and the Assange legal team are likely to appeal to the U.K. Supreme Court, if they are unsatisfied with the judgement of the High Court.
The assurances now offered are as follows: the U.S. government will not designate Assange for special administrative measures (SAMs); the U.S. government will not send Assange to ADX Florence, a super-maximum prison in Colorado if he is convicted; Assange will receive “clinical and psychological treatment as is recommended” by the prison clinician; and if convicted, the U.S. government will allow Assange to apply for a prisoner transfer to serve his sentence in Australia.
Both the assurances involving SAMs and ADX Florence contained an important stipulation. The U.S. government “retains the power” to designate Assange for either SAMs or ADX Florence if he commits “any future act” that meets the “test for such designation”; for example, if officials deem they must prevent a “breach of national security.”
Can The High Court Trust The U.S. Government?
Altogether, the assurances from the U.S. government turn on the “trustworthiness” of them. The defense would start from the basis that they were offered in good faith, but if the High Court allows them, Assange’s attorneys would like to hold a hearing where they can call witnesses and submit evidence in order to determine the reliability of these assurances.
The defense noted in their submission to the High Court, “One agency with power to recommend SAMs to the attorney general (on the basis of some unspecified ‘act’ they perceive Mr. Assange to have committed) is the CIA—the very same agency whose criminal acts Mr Assange has sought to expose, and who are under active investigation in Spain for plotting to kill him.”
“These issues are stark. And not capable of being grappled with properly by this court without knowledge of the alarming evidence adduced below.”
Assange’s legal team was referring to a Yahoo! News report published in September published under the headline, “Kidnapping, assassination and a London shoot-out: Inside the CIA’s secret war plans against WikiLeaks.”
It revealed the “legal significance” of CIA Director Mike Pompeo redefining WikiLeaks as a “non-state hostile intelligence agency” in the first speech he gave as the agency’s director in April 2017.
Pompeo became obsessed with Assange and WikiLeaks after the publication of “Vault 7” materials that exposed the CIA’s cyber warfare capabilities. He oversaw agents who escalated a disruption campaign against WikiLeaks and permitted hacking into the personal devices of staff and individuals viewed as associates of the media organization.
The agency was allowed to paralyze WikiLeaks’ “digital infrastructure,” provoke “internal disputes within the organization by planting damaging information,” and even though there are no “members” of WikiLeaks, they could try to steal “WikiLeaks members’ electronic devices.”
Plotting against Assange led to proposals for kidnapping him in the summer of 2017. They discussed breaking into the Ecuador embassy, where he was living under political asylum, in order to put him on a rendition flight.
“Agency executives requested and received ‘sketches’ of plans for killing Assange and other Europe-based WikiLeaks members who had access to Vault 7 materials, said a former intelligence official. There were discussions ‘on whether killing Assange was possible and whether it was legal,’ the former official said,” the Yahoo! News report further revealed.
As Summers contextualized the damning nature of this report, he linked it to the evidence that was put before the district judge involving UC Global, a Spanish security company that the Yahoo! News story largely confirmed had passed audio and video footage from cameras, which were spying on the embassy, to the CIA.
What we are talking about with the Spanish evidence is “potentially the tip of the iceberg,” Summers added.
In trying to convince the High Court of the threat the CIA poses to Assange, Summers also noted Joshua Schulte, the “gentleman alleged to be [Assange’s] source for Vault 7, is currently two years into SAMs.”
Defending A Distinguished Psychiatrist Attacked By Prosecutors
During the morning’s argument, Assange attorney Edward Fitzgerald QC defended neuropsychiatrist Professor Michael Kopelman, who Lewis sought to discredit during the first day of the hearing.
The U.S. government would like Kopelman’s expert testimony, which concluded that there was a “very high risk” Assange would commit suicide if extradited, to be ruled inadmissible.
To get it thrown out, the prosecution claims Kopelman failed in his duty to the court when he withheld the fact that Stella Moris was Assange’s partner at the time, and that she was the mother of his two young children, which were conceived while he was living in the Ecuador embassy.
At the time, Kopelman became aware of revelations of extreme and unlawful surveillance of Assange, his family, and his legal team. But he still wanted to adhere to his obligations to the court, Fitzgerald said.
Kopelman testified in 2020 that “he was concerned about the privacy and safety of someone who had expressed a wish for their privacy to be respected.” Twenty-four hours before he submitted his initial report to the judge, he sought legal advice from experienced human rights lawyer Gareth Peirce, the head of the solicitor’s firm representing Assange.
But Peirce was herself facing “a mass” of documents, which had to be served on the court at that time, including submissions that related to surveillance, attempts by CIA to obtain their children’s nappy to compare its DNA to that of Assange, and plans to kidnap or poison Julian.
Peirce was “simply overwhelmed” with issues to be addressed. She was not able to secure legal advice to Kopelman about his query before his initial report was due.
Far from being the actions of a dishonest actor, Baraitser determined that Kopelman’s omission, though misleading, had not misled the court. She was already aware of Moris’ identity before she read Kopelman’s initial report.
What Kopelman did was a “very human response” under all of the circumstances, Baraitser wrote in her decision.
Prosecutors tried to make light of the phrase “a very human response,” treating it as meaningless. However, Fitzgerald noted that within the context he described that involved UC Global spying, it made perfect sense.
To defend the professional reputation of Kopelman, the opinion of Professor Keith Rix, a recognized expert on the ethical duties of psychiatric experts, was shared with the High Court.
According to Rix, Kopelman “acted ‘professionally’; ‘responsibly’ and he ‘exercised appropriate and reasonable caution” in not disclosing the full position in his initial report.
(Photo by Mohamed Elmaazi, NUJ Member)
Assange Informed US Medical Expert of His Relationship With Moris
Fitzgerald challenged the U.S. government’s claims that they were “shocked” to discover Moris was in a relationship with Assange, especially because Assange informed Dr. Nigel Blackwood, one of the U.S. government’s preferred doctors, that he was in a relationship with Moris. He told him about their children two days before applying for bail in March 2020.
Moris provided a statement in support of Assange’s bail application on the basis that having a partner in a committed relationship with Mr Assange, who is also the mother of two of his children, would help reassure the court that he would abide by bail conditions.
Yet, Lewis mocked the idea that Moris and their two children’s safety was of any real concern, precisely because she opened up her identity to potentially being discovered by supporting bail for Assange.
Lewis also contended Assange had actually informed Blackwood of his relationship with Moris because he knew the information would become public anyway due to the bail application (something which was not guaranteed, since they sought an anonymity order to protect her privacy).
These remarks ignored the obvious point that Assange and his family were engaged in balancing their desire to protect their privacy and safety with the understandable objective of freeing Assange from what at the time was seven-plus years of confinement (first in the Ecuador embassy, then at Belmarsh).
In fact, Lewis told the court when Moris pursued the anonymity order that the prosecution was “neutral” and took no position on whether it should be granted.
‘The True Crime Is Journalism’
Assange’s defense characterized him as the “CIA’s most prominent critic,” especially because the information that is the subject of this prosecution included details of war crimes, torture, and atrocities against civilians by the U.S. government and the CIA in particular.
He is a witness against the CIA in criminal cases that are unfolding against their conduct in Spain, Germany, and before the International Criminal Court (ICC).
The CIA views Assange as a “hostile” “enemy” of the United States, who poses “very real threats.” His attorneys assert there is no reason to believe that vengeful attitude will not be reflected in his treatment should the High Court allow him to be placed in U.S. custody.
Outside of the Royal Courts of Justice, where over a hundred supporters gathered, WikiLeakseditor-in-Chief, award-winning Icelandic investigative journalist Kristinn Hrafnsson, sought to remind the crowd what this case is “all about.”
“This is a political persecution of a journalist who exposed war crimes and the secrets of the United States. We’re here because a journalist is being prosecuted for doing his job,” Hrafnson told a cheering crowd.
The Crown Prosecution Service, which represents the United States government, went before the British High Court of Justice and bashed the work of the district judge, who blocked the extradition of WikiLeaks founder Julian Assange in January.
James Lewis QC argued Judge Vanessa Baraitser approached the extradition law incorrectly when she focused on predicting “future uncertain events,” which might result in a deterioration of his mental health. Baraitser wrongly assessed Assange’s risk of suicide, and “she should have weighed crucial factors in the psychiatric evidence significantly differently.”
He said the High Court should accept the appeal on the basis that the U.S. government offered “assurances” that Assange won’t be subjected to Special Administrative Measures (SAMs) or incarcerated in ADX Florence, a super-maximum prison in Colorado. Plus, key medical testimony offered by defense experts and accepted by the district judge should in fact have been rejected.
According to Lewis, if the law and facts had been “properly” construed by the district judge, there would only have been one outcome. The extradition of Assange would have been granted.
But Edward Fitzgerald QC, who is part of the Assange legal team, maintained it was inappropriate to scoff at the district judge’s decision. The district judge issued a “carefully reasoned” and “carefully thought out judgment.”
“I just wonder some time if my learned friend’s reading the same judgment as we are,” Fitzgerald added, prodding Lewis.
Baraitser concluded it would be “oppressive to extradite” Assange to the U.S. because of his mental health condition. However, she kept him detained at the Belmarsh high-security prison while the U.S. government pursued their appeal.
Assange faces 18 charges, 17 of which are offenses under the Espionage Act. The law passed in 1917 has increasingly been wielded by the Justice Department against media sources, who disclose “classified” documents or talk about sensitive information with journalists, even if what they reveal is in the public interest.
During the court proceedings, Fitzgerald informed the High Court that Assange was not feeling well due to his medication. Yet close to an hour into the hearing, Assange appeared in a room at Belmarsh. He was wearing a white dress shirt and black necktie. He looked very tired and rested his head on his hand.
Later, Stella Moris, Assange’s partner, claimed the court denied him permission to attend proceedings in person.Chief Justice Lord Burnett of Maldon and Lord Justice Timothy Holroyde presided over the appeal hearing.
Lewis presented the following “grounds for appeal“: the district judge improperly applied the United Kingdom’s extradition law; the district judge should have sought assurances from the U.S. government after she decided to deny the request; the district judge ought to have disqualified a key psychiatric expert; the district judge erred when considering evidence of suicide risk; and the U.K. government was issued a package of assurances that address the problems the district judge detailed in her decision.
The prosecutor contended the U.S. government was allowed under the law to offer assurances at any time, and that it was standard in extradition cases. In fact, he insisted assurances are “binding” and to be trusted.
It is unclear how the U.S. government would be bound to abide by its pledges or what the consequences would be if they abandoned them.
Fanciful Pronouncements From Prosecutors
In advancing the assurance that Assange would not be designated for SAMs or imprisoned at ADX Florence, Lewis mentioned the Communications Management Units (CMUs) at Federal Correctional Institution Terre Haute in Indiana and the U.S. Penitentiary in Marion, Illinois, where drone whistleblower Daniel Hale, who pled guilty to violating the Espionage Act, was sent in early October.
Seeking to assure the High Court that CMUs would respect Assange’s human rights, Lewis read from a declaration submitted by Gordon Kromberg, the Assistant U.S. Attorney in the Eastern District of Virginia who was the lead prosecutor in the Hale case. (Note: Kromberg has been the chief representative for the Justice Department’s effort to secure extradition.)
“CMU inmates are afforded the same opportunities to communicate with individuals outside of prison as regular inmates,” Kromberg stated. “Their communications may be more extensively monitored, however, or the BOP [Bureau of Prisons] may impose certain limitations, as noted in the Bureau Program Statement, to prevent them from engaging in additional criminal conduct.”
When the BOP imposes “certain limitations,” prisoners no longer have the same opportunities to communicate as “regular inmates.” So Kromberg’s characterization is misleading.
If Assange was in a CMU, he would likely be limited to two scheduled 15-minute phone calls per week. Those calls could be restricted to immediate family, and the prison could deny him a call if an FBI agent was not available to monitor his conversation.
The visitation policy for a prisoner in a CMU is harsher than the policy for SAMs. Contact visits are not allowed, meaning Moris and his children, Gabriel and Max, would not be able to hug or kiss him.
(Photo: Mohamed Elmaazi, NUJ member)
In spite of the assurance related to SAMs, Lewis still told the judges the U.S. government must be allowed to hold Assange in these restrictive conditions if they fear he could be responsible for a “breach” of “national security.” Otherwise, he would have a “blank check to do whatever he liked, and those conditions could not be imposed.”
The lead prosecutor raised the issue of sentencing, complaining that Assange’s attorneys had supposedly exaggerated the potential sentence he could face if convicted. He touted the 45-month sentence against Hale and the 63-month sentence against NSA whistleblower Reality Winner as “lenient” and proof that Assange would not face a sentence that would effectively imprison him for the rest of his life. (Assange is 50 years-old.)
When one of the justices presiding over the hearing said it was possible he would not be sentenced at all if acquitted, Lewis put forward a rosy but unrealistic scenario, where Assange’s legal team could apply for a “speedy trial,” challenge the prosecution on First Amendment grounds, and then Assange would prevail and go free.
A number of defendants charged with Espionage Act violations have tried to challenge the constitutionality of using this law to punish unauthorized disclosures of information. There is little reason to believe Assange would succeed, where others have failed.
Additionally, someone charged with violating the Espionage Act does not apply for a “speedy trial” and move the government to expedite the case. Cumbersome classified information procedures must be followed. It could take one to two years to prepare all the evidence and witnesses for a trial.
The only way Assange would have his “speedy trial” rights respected is if he pleaded guilty to the charges or accepted some kind of a plea deal that would include prison time, but avoid a trial. That presumes the prosecutors would bargain with him.
Attempts To Discredit A Key Psychiatrist
During the extradition hearing in September 2020, Professor Michael Kopelman, the section head of neuropsychiatry at King’s College London, advised the district judge that there was a “very high” risk Assange would attempt or commit suicide should he be extradited.
The district judge accepted Kopelman’s assessment as credible and reliable, and it formed a key part of her decision. Thus, Lewis focused a substantial amount of his argument on discrediting his analysis.
In Kopelman’s initial report, the neuropsychiatrist failed to note that Moris—whom Kopelman interviewed as part of his assessment for the court—was also Assange’s partner and mother of two of his young children.
Although he ultimately noted this fact in his final report to the court, Kopelman was “actively misleading” when he omitted that crucial information, Lewis repeatedly stated.
“In our respectful submission this was not an honest statement of truth,” Lewis said, referring to the declaration that all expert witnesses must sign in their reports. He argued that the district judge made a crucial error in “not taking that firmly into account” when considering Kopelman’s psychiatric evidence.
Since Kopelman did not disclose the relationship to the district judge, Lewis argued she should have given his entire medical testimony “little to no weight.” Then Baraitser would have had no alternative but to rely upon U.S. medical experts, who were not as confident of Assange’s suicide risk.
Throughout his oral submissions at the High Court, Lewis characterized Kopelman as a combative, even deceitful, figure who violated his oath to the court. He also described Baraitser as a judge, who inexplicably accepted and preferred Kopelman’s (and autism expert Dr. Quinton Deeley’s) findings over those of the U.S. experts.
The two senior High Court judges seemed sympathetic to the arguments, with one of them remarking that it appeared that the district judge may have considered the obligation of honesty owed by experts to be flexible.
However, Fitzgerald painted a very different picture during the brief time he had to respond to the prosecution.
The idea that Kopelman is “a lone wolf is absolute nonsense,” Fitzgerald replied.
Fitzgerald noted Kopelman’s conclusions were supported by Deeley and “to a large extent” things he said were also supported by U.S.. expert Professor Fazel.
Moris made a similar point to The Dissenter. “It isn’t true that there is real divergence between the doctors. They all accepted autistic traits, but the autism expert concluded and diagnosed [Autism Spectrum Disorder],” she explained.
“The U.S. doctors also accepted [that Assange] suffers from a major depressive disorder,” the point of divergence between the experts was a “matter of degree,” she said.
The district judge took the position that, although Kopelman’s failure to identify Moris as Assange’s partner was misleading, she was already aware of Moris’s identity at the time of reading the preliminary report and was not misled.
Baraitser concluded that it was a “very human response” to the predicament of being asked by Assange and Moris not to disclose the information to safeguard their privacy and their safety, given the witness testimony detailing the Spanish security company UC Global’s espionage operation against Assange.
Kopelman took the matter of withholding Moris’ relationship seriously and was waiting for legal advice on the subject, Fitzgerald told the High Court.
The district judge “reasonably and justifiably concluded that Kopelman’s expert evidence was independent and impartial,” a finding that she was “fully entitled to make,” according to Assange’s lawyers.
In essence, Fitzgerald added, the U.S. government was re-litigating the case at the High Court before judges who have not had the benefit of 18 months of evidence, legal arguments, and extensive cross-examination of witnesses.
On October 28, Assange’s lawyers will have most of the day to fully respond to the U.S. government’s attempt to overturn the district judge’s decision.
[Editor’s Note: I expect to be credentialed to remotely cover the Assange appeal hearing on October 27-28 and will have live updates on proceedings that can be followed on Twitter from @kgosztola]
On October 27, the High Court of Justice in the United Kingdom will hear the Crown Prosecution Service argue on behalf of the United States government that a lower court improperly blocked the U.S. from extraditing WikiLeaks founder Julian Assange.
The proceedings in London are expected to last two days and will involve five grounds for appeal that were previously approved by the High Court of Justice. (Two were reinstated by the court after a hearing on August 11.)
District Court Judge Vanessa Baraitser ruled on January 4 that Assange’s mental health was such that it would be “oppressive to extradite him” to the U.S. But two days later, she accepted the U.S. government’s objections and ordered him to remain in jail while her decision was appealed.
Assange is detained at Her Majesty’s Prison Belmarsh in London, a high-security prison where he has been held since he was expelled from the Ecuador Embassy on April 11, 2019. He faces 18 charges—17 of which are charges under the Espionage Act.
The Espionage Act is a U.S. law passed in 1917 that the Justice Department has increasingly wielded against media sources who share “classified” documents or talk about sensitive information with journalists.
Because Assange is the first publisher to be charged under the law, press freedom organizations around the world have roundly condemned the political prosecution. It also is part of a troubling development where the U.S. government increasingly seeks to impose its domestic laws on foreign nationals. Assange is an Australian citizen and has no ties whatsoever to the United States.
Each of the charges, aside from a conspiracy to commit a computer crime offense, solely relate to the documents that were submitted by U.S. Army whistleblower Chelsea Manning to WikiLeaks in 2010: the Iraq and Afghanistan War Logs, the U.S. State Embassy cables, and the Guantanamo Files.
The general allegations in the indictment against Assange directly criminalize the publication of information.
Corruption has marred the case at every stage. Yahoo! News reported in late September that CIA Director Mike Pompeo obsessed over Assange after WikiLeaks released CIA files in 2017 exposing the agency’s cyber warfare capabilities. Agents sketched out plans to kidnap or even kill Assange.
The CIA backed an espionage operation against the Ecuador embassy that was conducted by Undercover Global. They collected legally-privileged conversations among attorneys and broke into the personal devices of guests visiting Assange.
The FBI worked with an informant named Siggi Thordarson, a serial liar and sociopath who embezzled funds from the WikiLeaks store and sexually preyed on underage boys. He fabricated allegations against Assange that were later retracted in an interview with an Icelandic reporter. Icelandic authorities jailed Thordarson on September 24 to stop him from perpetrating additional financial fraud schemes.
Assange’s personal archive, confidential medical data, and legally privileged materials were seized from the embassy following his arrest and handed over to the FBI.
Nevertheless, President Joe Biden’s administration has pressed onward with the case against Assange, refusing to answer questions from reporters about why they will not drop the charges.
***
The following is a guide to each of the grounds for the U.S. appeal that the Crown Prosecution Service will present to the High Court of Justice. Assange’s legal team will have an opportunity to respond to each argument. It is based on the submissions to the appeals court from the Crown Prosecution Service and Assange’s legal team.
From the United States Justice Department’s own website and in the public domain
Ground 1: The judge improperly applied the UK’s extradition law
Under section 91 of the Extradition Act passed in 2003 in the United Kingdom, the “physical or mental health of the requested person may act as a bar to extradition, if it is such as to render extradition oppressive or unjust.” If a judge concludes it would be oppressive, the judge may discharge that person, as happened in this case (although Assange was ordered to remain in jail during the appeal).
Prosecutors assert Judge Baraitser failed to correctly apply something called the Turner test, which stems from a 2012 case where a test for discharging a person on mental health grounds was set out.
According to that case, the court forms a judgment based on the facts. A “high threshold” must be reached to satisfy the court that a “person’s physical or mental condition is such that it would be unjust or oppressive to extradite him.” The court must determine there is a “substantial risk” the person would attempt to commit suicide.
The person must lack the capacity to “resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act, which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.”
There must be evidence that the person may succeed in committing suicide. The prison system of the country requesting extradition must lack the ability to manage the person’s mental condition and risk of suicide. And, finally, treaty obligations must be weighed in the decision.
In response to the Crown Prosecution Service, Assange’s legal team meticulously shows how the test was applied appropriately by the judge. One is an “overall value judgment.”
Like the case against activist and computer scientist Lauri Love, the judge focused on the degree of Assange’s mental disorder, the extent of his risk of suicide, and the extent to which U.S. prison conditions would result in a deterioration of health. Assange’s attorneys contend, “Her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety.”
As to the “high threshold” and whether there is a “substantial risk,” Baraitser noted Assange faces the “bleak prospect of severely restrictive detention conditions designed to remove physical contact and reduce social interaction and contact with the outside world to a bare minimum. He faces these prospects as someone with a diagnosis of clinical depression and persistent thoughts of suicide.”
Assange was designated for the care planning process for prisoners identified at risk of suicide or self-harm when he arrived at Her Majesty’s Prison Belmarsh and largely has remained under care aimed at dealing with his health and risk of suicide, Baraitser acknowledged. He takes medication and is afraid for his future, putting him at a “very real” risk of attempting to end his life.
Baraitser engaged the question of whether a suicide attempt would be impulsive or the result of a voluntary act. She accepted the findings of Professor Michael Kopelman, who was the only psychiatrist who gave testimony who assessed Assange between May and December 2019.
“Professor Kopelman gave his clear and unequivocal view that Mr. Assange’s suicidal impulses will come from his psychiatric condition rather than his own voluntary act,” she determined.
Whether the procedures in place in a U.S. jail or prison would prevent Assange from succeeding in suicide or attempting suicide were considered and deemed insufficient. “Assange undoubtedly has the intellect to circumvent these suicide preventative measures; in order to avoid suicide watch or increased isolation at HMP Belmarsh, he has already adopted a strategy of disguising his suicidal thoughts,” Baraitser added.
“I accept that oppression as a bar to extradition requires a high threshold,” Baraitser stated. “I also accept that there is a strong public interest in giving effect to treaty obligations and that this is an important factor to have in mind. However, I am satisfied that, in these harsh conditions, Mr. Assange’s mental health would deteriorate causing him to commit suicide with the ‘single minded determination’ of his autism spectrum disorder.”
Along with the Turner test, Assange’s team contends she incorporated what they call the Lauri Love approach. Like Love, Assange has been diagnosed with depression and autistic spectrum disorder. Both were considered by psychiatrists to have the determination to take their lives “irrespective of precautionary measures.”
Baraitser recognized once transferred from Belmarsh to a U.S. facility he will lose many of the “protections” that have helped his health stabilize. He will likely lose access to support of family and friends. He will no longer have the Samaritans phone line, a suicide prevention service. And he will likely lose the “trusting relationship” he has built up with the psychologist, who has been treating him.
Westminster Magistrates Court in the United Kingdom, where Julian Assange’s extradition hearing was held. (Photo by Ludhi85)
Ground 2: The judge should have let the US offer assurances if she was going to deny the request
The U.S. procedurally objects to Judge Vanessa Baraitser not asking for assurances before denying the extradition request. It points out the U.S. did not agree with Julian Assange’s legal team that he was likely to be designated for special administrative measures (SAMS) and if convicted incarcerated at ADX Florence, a super-maximum prison in Colorado.
Assange’s legal team counters that the judge was under “no duty to invite the prosecution to address concerns about prison conditions by offering them an opportunity to provide assurances.” In fact, his attorneys add the Crown Prosecution Service never requested the judge seek assurances if the judge was concerned about potential prison conditions as a factor that could contribute to suicide risk.
Baraitser concluded the evidence put forward by defense attorneys was persuasive enough to conclude if Assange was subject to the “extreme conditions of SAMs,” his mental health would “deteriorate to the point” where he committed suicide.
In the Lauri Love case, the High Court of Justice quashed his extradition over possible prison conditions that could have resulted in his death due to his “difficult mental conditions, Asperger’s syndrome and depression” and physical conditions, “notably eczema, which would be exacerbated by stress.”
Assange’s legal team points out the U.S. did not suggest in the case against Love that the High Court of Justice had a duty to seek assurances before denying the extradition request.
Ground 3: The judge ought to have disqualified a key psychiatric expert
Prosecutors maintain Judge Vanessa Baraitser should have disqualified psychiatrist Professor Michael Kopelman because he withheld his knowledge that Assange was in an undisclosed relationship with Stella Moris and fathered two children while he was in the Ecuador embassy in London.
Clair Dobbin QC, who is with the Crown Prosecution Service, accused Baraitser of not appreciating the “significance of the fact that Kopelman was willing to mislead” the court.
However, Baraitser acknowledged that Kopelman’s decision to “conceal their relationship was misleading and inappropriate in the context of his obligations to the court” as an impartial witness. She contextualized what Kopelman did as an “understandable human response” to Moris’ predicament.
Moris was concerned about the risk to her family if it became known that she was in a relationship with Assange, especially given the Spanish private security company Undercover Global’s espionage operation against Assange, his legal team, and all visitors while he was living in the Ecuador embassy.
“[Kopelman] explained that her relationship with Mr. Assange was not yet in the public domain and that she was very concerned about her privacy. After their relationship became public, he had disclosed it in his August 2020 report. In fact, the court had become aware of the true position in April 2020, before it had read the medical evidence or heard evidence on this issue,” Baraitser recalled.
Baraitser made it clear the court was not misled by Kopelman’s initial omission. She assessed all the medical evidence while considering the fact that Assange’s new family could potentially diminish his risk of committing suicide.
Ground 4: The judge erred when considering evidence of suicide risk
The U.S. government would like to disqualify Professor Kopelman so the particular evidence from him on suicidal impulses no longer weighs so heavily against their extradition request. But if that fails, they argue Judge Vanessa Baraitser committed an error when assessing the evidence of suicide risk.
Prosecutors plainly accuse the judge of impropriety because she gave more weight to Kopelman and less to Professor Seena Fazel, a forensic psychiatrist who was one of their preferred doctors because he did not view “Assange’s risk factors to be strongly predictive of suicide and rejected Kopelman’s opinion.
“The district judge did not properly take this into account in her assessment of all the expert evidence before her. She regarded Professor Fazel’s analysis as ‘helpful’ but ‘preferred’ Professor Kopelman’s opinion that ‘statistics only take you so far,’” prosecutors argue. “This was a mischaracterization of Professor Fazel’s evidence. His evidence went to demonstrating that high risk of suicide did not mean a probable risk of suicide (far from it) and that it was not possible to predict a risk of suicide on the sort of long-term basis envisaged here.”
Assange’s defense counters, “The district judge rightly noted that Professor Fazel generally supported Professor Kopelman’s assessment of Mr Assange’s mental state.” She referred to Fazel’s evidence of what would constitute a high risk of suicide and how that did not necessarily mean a “high probability of suicide.”
However, Baraitser based her conclusions on the capacity Assange would have to resist suicidal impulses, and Kopelman, Fazel, and a third doctor, Dr. Quinton Deeley who “agreed that severe depression and isolation might reduce” his ability to resist suicide
Ground 5: The UK government was offered a package of ‘assurances’ to address the judge’s decision
The United States government offered assurances after Judge Vanessa Baraitser denied the extradition request.
The package included an assurance that the U.S. would not seek to impose special administrative measures (SAMs) on Assange before trial or after he was convicted. However, it contained a major loophole. If Assange committed a “future act” that “met the test” for SAMs, the U.S. would designate him for such restrictive confinement conditions. They did not specify what type of acts might justify abandoning this assurance.
Prosecutors pledged to allow Assange to apply for a prisoner transfer to Australia to serve his U.S. sentence under the Council of Europe Convention on the Transfer of Sentenced Persons. But that agreement was in force during and before the extradition hearing, and the Crown Prosecution Service never entered any evidence into the record during the extradition hearing that related to this agreement.
In fact, invoking the agreement is too clever by half, a way for the U.S. government to avoid scrutiny over the systematic abuses and due process violations that take place within the U.S. incarceration system, which are well-known to the world.
If Assange was extradited and held in a U.S. jail or prison, the U.S. pledged to ensure he received “clinical and psychological treatment” as recommended by a “qualified treating clinician employed or retained” by the facility where he is held. However, this assurance is as problematic as the SAMs assurance that contains a major loophole.
Should a psychologist assigned to the jail or prison decide Assange’s condition is not serious enough for care, he could be denied treatment. As reported in 2018 by The Marshall Project, the BOP’s own data showed—despite promising better care for prisoners with mental health issues—the number of prisoners “designated for higher care levels” decreased by more than 35 percent. The BOP lacked the staff necessary to provide increased care to prisoners’ with mental health problems. It incentivized staff to “downgrade inmates to lower care levels.”
The U.S. government pledged that Assange would not be designated for ADX Florence, the supermax prison. Yet similar to the assurance to not impose SAMs, they indicate if Assange commits a “future act” that meets the “test for such designation” he could still be confined in the maximum security prison.
Importantly, the assurance ignores the possibility that Assange would be confined in a Communications Management Unit (CMU) at Federal Correctional Institution Terre Haute in Indiana or U.S. Penitentiary Marion in Illinois.
In early October, the BOP designated Daniel Hale for a CMU, even though a federal judge, prosecutors, and defense attorneys had discussed sending him to Federal Medical Center Butner in North Carolina, a low-security facility where he could receive attention for post-traumatic stress. Hale pled guilty to violating the Espionage Act when he disclosed documents on the U.S. military’s drone program to Intercept co-founder Jeremy Scahill.
Joel Sickler, the head of a criminal defense litigation support firm, who testified as an expert on federal prisons during the extradition hearing, declared, “For any inmate, and many of my clients, the level of monitoring of their lives can—and often does—cause distress leading to significant levels of depression. In my experience, those inmates who are placed in CMUs experience this exponentially.”
The visitation policy for prisoners designated for a CMU is harsher than the policy for SAMs. All visits with his partner Stella Moris and his children, Gabriel and Max, would be non-contact visits where he could only speak with them through a partition. He would not be allowed to hug, kiss, or sit next to them the entire time that he was incarcerated.
Additionally, all of his phone calls would likely be restricted to immediate family, and he would only be allowed two scheduled 15-minute calls per week. (Regulation permits prison staff to restrict Assange to three 15-minute calls per month with “immediate family only.”)
Though Assange would have a bi-annual review to determine whether his CMU designation should continue, former USP Marion warden Maureen Baird testified that it is extremely rare for a prisoner to be transferred out of a CMU.
The problem with offering assurances for the first time during the appeal is articulated by Assange’s attorneys. It gives the U.S. government a “tactical advantage at the expense of fairness” and in a manner that prolongs Assange’s detention.
The Justice Departmant has “actively engaged in these proceedings for nearly two years, providing significant volumes of evidence, without making any suggestion assurances were being considered, though the offer of assurances at first instance is commonplace. This meant that none of the defense witnesses could comment on the assurances that are now produced.”
Assange’s legal team concludes, “The DOJ’s approach of not offering assurances in the court below gave them the further advantage that they could obtain extradition without providing any assurances if they could persuade the district judge of the correctness of their approach. Now that they have failed, they seek belatedly to bring forward these conditional and untested assurances in the High Court.”
[Editor’s Note: To mark the 20th anniversary of the rise of the American security state after the September 11th attacks, The Dissenter continues a retrospective on this transformation in policing and government.]
Mark Klein worked for over twenty years as a technician for the AT&T Corporation. He blew the whistle on the AT&T’s collaboration with the National Security Agency, which allowed for warrantless wiretapping of phone and internet communications.
In 2006, Klein came to the Electronic Frontier Foundation (EFF) with documents of AT&T’s involvement in the United States’ domestic spying program. His whistleblowing became the basis of the organization’s lawsuit against the NSA.
According to Kevin Bankston [PDF], who was an EFF staff attorney, Klein described the “technology behind AT&T’s participation in the program, whereby the NSA had been given complete access to the Internet traffic transiting through at least one, and probably more, AT&T Internet facilities.”
“A secret, NSA-controlled room in an AT&T office” was constructed and splitters copied light signals that were transferred across fiber-optic cables in order to give the government access to AT&T customers’ private data.
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or the PATRIOT Act, helped to create a security climate that encouraged this kind of public-private partnership between AT&T and the NSA.
It was signed into law by President George W. Bush on October 26, 2001. However, versions of the legislation, which gave the government expanded authority to engage in mass surveillance and data collection, including against American citizens, were passed earlier in October.
Only a few members of Congress raised the kind of objections which contemplated the types of abuses, which Klein and other whistleblowers exposed.
Debated In The ‘Most Undemocratic Way Possible,’ Opposed By Only One Senator
The PATRIOT Act was developed in 45 days. Several representatives admitted they had not read the bill. Open debate was largely forbidden and amendments to the legislation were discouraged.
Only one U.S. senator voted against the bill—Senator Russ Feingold of Wisconsin.
Feingold nobly attempted on October 11 to amend the PATRIOT Act to remove some of its worst elements. He tried to amend it so an anti-hacking provision was narrowed. He believed it could “allow universities, libraries, and employers to permit government surveillance of people who are permitted to use the computer facilities of those entities. Such surveillance would take place without a judicial order or probable cause to believe that a crime is being committed.”
A second amendment offered urged senators to a safeguard in the “roving wiretap authority” section of the bill. Feingold believed an order in the Foreign Intelligence Surveillance Act should have been required to “ascertain that the target of the surveillance [was] actually in the house that [was] bugged, or using the phone that [was] tapped.”
Yet another amendment involved section 215, which stated all business records could be compelled for production by the FBI, including medical records from a hospital or doctor, educational records, or records of books a person checked out from a library. Feingold tried to make sure this provision did not become “the platform or an excuse for a fishing expedition for damaging information on American citizens who are not the subjects of FISA surveillance.”
Feingold tried to warn senators of what would happen if terrorists were rewarded by the United States weakening freedoms. He also cautioned against the “mistreatment of Arab Americans, Muslim Americans, South Asians, or others” in the United States. “Already, one day after the attacks, we were hearing news reports that misguided anger against people of these backgrounds had led to harassment, violence, and even death.”
“Our national consciousness still bears the stain and the scars of those events: the Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans during World War II and the injustices perpetrated against German Americans and Italian-Americans, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King, Jr., during the Vietnam War.
“We must not allow this piece of our past to become prologue,” Feingold declared.
But the Senate did not heed his words of caution. All three of the amendments were defeated. In fact, Senate Majority Leader Tom Daschle, a Democrat from South Dakota, opposed the amendments on procedural grounds, claiming there was no time to delay passage of the PATRIOT Act.
In the House of Representatives, a small number of representatives objected.
Representative Bobby Scott contended the legislation was not “limited to terrorism.” It reduced standards for foreign intelligence wiretapping, allowed for a roving wiretap, and the ability to use information from a roving wiretap in a criminal investigation. This would allow the government to “conduct a criminal investigation without probable cause.”
Both Scott and Representative Sheila Jackson-Lee were concerned about provisions that could be used to permit the indefinite detention of Americans. Scott was bothered by the parts of the bill that would permit secret searches referred to as “sneak-and-peak.”
Representative Tom Udall protested the fact that members were not allowed to offer amendments. “At no point in the debate in this very profound set of issues have we had a procedure whereby the most democratic institution in our government, the House of Representatives, engages in democracy.”
“This bill, ironically, which has been given all of these high-flying acronyms, it is the PATRIOT bill, it is the U.S.A. bill, it is the stand up and sing the Star-Spangled Banner bill, has been debated in the most undemocratic way possible, and it is not worthy of this institution,” Udall added.
While Congress granted U.S. security agencies enormously expanded power, the FBI detained and questioned hundreds of Arabs, Muslims, or South Asians about the 9/11 attacks. They were held for months and not charged with any crimes. Under the pretext of “immigration violations,” Attorney General Ashcroft kept them in squalid jail conditions and then deported most of them.
Thomas Tamm, who was an attorney for the U.S. Justice Department (Screen shot from PBS FRONTLINE and fair use as it is included for the purpose of news commentary)
Exposing Warrantless Wiretapping By The Bush Administration
As journalist Michael Isikoff reported for Newsweek, Thomas Tamm, an attorney at the Justice Department, “stumbled upon the existence of a highly classified National Security Agency program” that involved spying on citizens. Special rules for the unit enabled the section to hide NSA activities from judges on the FISA court. (It was often referred to as “The Program.”)
Tamm contacted the New York Times and became a source for the Eric Lichtblau and James Risen report published in 2006, which revealed that Bush secretly authorized the NSA to engage in warrantless wiretapping through a program known as Stellar Wind.
“I asked a supervisor of mine if she knew what ‘The Program’ was about,” recalled Tamm during an interview for PBS FRONTLINE. “She told me that she just assumed that what we were doing was illegal and she didn’t want to ask any questions. That really ate away at me and bothered me, because I thought I had gone into law enforcement to enforce the law. I didn’t like the fact that I thought, or that a supervisor thought, that we might be doing something illegal.”
Tamm contacted someone with a top-secret security clearance on Capitol Hill, who he knew from working on a prior case. He asked her to find out what Congress knew and if representatives, especially those on the intelligence committees, understood what was being done. She did not really help him uncover any answers. He emailed and asked again for her assistance. When she said she could not help him, he said he would have to go the press.
“You know, Tom, whistleblowers frequently don’t end up very well,” Tamm’s contact replied.
At first, New York Times executive editor Bill Keller allowed the Bush White House to pressure the media organization into not publishing the story before Bush was re-elected in 2004. After Risen threatened to include it in his book, State of War: The Secret History of the CIA and the Bush Administration, the Times moved to publish in December 2005 before Risen’s book was released.
In retaliation for exposing this “separate track” in the government for authorizing secret and illegal surveillance, the FBI raided Tamm’s home on August 1, 2007. His family endured a lot of hardship. He believed he could be indicted by the Justice Department at any moment and turned to Isikoff to get his story out on what he did and why he did it.
Tamm was granted immunity in April 2011 to testify before a grand jury investigating leaks published by Risen from the CIA. He testified on details that were not previously agreed upon, but since he was not ashamed of what he did, Tamm felt no reason to hold back. And once that was over, the Justice Department indicated there would be no charges.
‘All The Lawyers Have Approved It. It’s Legal’
NSA whistleblower Thomas Drake spoke over the phone in October 2001 with one of the top lawyers in the NSA. He was concerned that Stellar Wind or “The Program,” which gathered the phone calls and Internet communications of millions of Americans, was illegal.
When asked about this conversation by PBS FRONTLINE, that lawyer, Vito Potenza, pretended not to remember the phone call. He also indicated he would have ignored Drake’s concerns.
“Don’t bother me with this. I mean, you know, the minute he said, if he did say you’re using this to violate the Constitution, I mean, I probably would have stopped the conversation at that point quite frankly. So, I mean, if that’s what he said he said, then anything after that I probably wasn’t listening to anyway,” Potenza told PBS FRONTLINE.
Drake said he “confronted” Potenza “directly in the most direct language possible,” accusing the NSA of “violating the Constitution.” Potenza knew the truth and “chose to go with ‘The Program.’ And anybody questioning ‘The Program’ was a threat.”
Along with NSA whistleblowers Bill Binney, Ed Loomis, and Kirk Wiebe, Drake found that a program called ThinThread no longer had its privacy protections when collecting data. The automatic encryption of U.S. person-related data was suspended. Instead, an algorithm called Mainway linked phone numbers together as data was collected. The agency then went to telecommunications companies like AT&T and requested “bulk-copy records” of Americans.
This convinced Binney, Loomis, and Wiebe to leave the NSA, but Drake remained and attempted to blow the whistle through “proper channels.”
In September 2002, Binney, Wiebe, and Diane Roark, who worked for the House Intelligence Committee, filed a “confidential complaint” with the Office of the Inspector General for the Department of Defense. They complained about a “billion dollar boondoggle” called Trailblazer and how officials all the way up to NSA chief Michael Hayden violated regulations by going with this project instead of ThinThread.
It was a felony to engage in this kind of warrantless surveillance, but the names of these individuals who worked for NSA were passed along to the Justice Department for investigation.
After the New York Times finally published the story from Risen and Lichtblau exposing the Bush wiretapping scandal, the FBI targeted them. They had their homes raided. Drake was prosecuted under the Espionage Act.
During that phone call, Drake attempted to warn the the NSA’s top lawyer that what the NSA was doing after the 9/11 attacks was illegal.
“The hair literally was up on the back of my neck, because he proceeded to tell me: ‘You don’t understand. All the lawyers have approved it. It’s legal. The White House has authorized NSA to serve as the executive agent for ‘the Program.’”
Stumbling Across More Warrantless Surveillance By ‘Major Telecom’
In 2008, Congress deliberated over legislation known as the FISA Amendments Act that included retroactive immunity for telecommunications corporations like AT&T, which were vulnerable to lawsuits following revelations from whistleblowers like Mark Klein and Thomas Tamm.
Babak Pasdar, an information technology security expert, came forward [PDF] in February 2008 with evidence that indicated a “major telecommunications giant” likely gave a U.S. government entity “access to every communication coming through that company’s infrastructure, including every email, internet use, document transmission, video, and text message, as well as the ability to listen in on any phone call.”
Members of Congress, including John Dingell, the chairman of the Energy and Commerce Committee, wrote in a “Dear Colleague” letter, described the “Quantico Circuit” that Pasdar observed.
“In the course of his work, he discovered that an unidentified third party had been given unfettered and unsecured access to all of the data transmissions it carried,” the letter added. “When Mr. Pasdar identified this security breach and made suggestions about how to correct the situation, representatives of the carrier reportedly refused to secure the network. Moreover, they refused to implement tracking programs to identify what data were accessed.”
According to Pasdar, the access to the carrier’s data center infrastructure included the carrier’s fraud detection system. That was not benign to him. The fraud detection system had the ability to “track all mobile devices by geography.”
Pasdar’s allegations echoed those from Klein, but one key issue for members of Congress was that the telecommunications companies that participated in wiretapping without any court orders or warrants were prohibited from talking to Congress. President George W. Bush would not let them.
Unfortunately, the whistleblowing of Klein and Pasdar was disregarded by Congress. The FISA Amendments Act, as the ACLU put it, legalized “mass, untargeted, and unwarranted spying” on international phone calls and emails. It restricted judicial oversight of surveillance by the FISA court and granted companies like AT&T retroactive immunity.
Senator Barack Obama made it clear during his presidential campaign that he would “support a filibuster of any bill that [included] retroactive immunity for telecommunications companies.” When it came time, he declined to filibuster, and he voted for the FISA Amendments Act, which passed 69-28 in the Senate.
First interview NSA whistleblower Edward Snowden did where he revealed he was behind the revelations around mass surveillance programs (Screen shot from Guardian and included for purposes of news commentary)
Former National Security Agency contractor Edward Snowden made the decision to become a whistleblower after he came across a classified 2009 inspector general’s report on the NSA’s warrantless wiretapping program developed under Bush.
“You can’t read something like that and not realize what it means for all of these systems we have,” Snowden declared in an interview with Risen in 2013. “If the highest officials in government can break the law without fearing punishment or even any repercussions at all, secret powers become tremendously dangerous.”
In 2013, Snowden provided numerous documents to journalists Glenn Greenwald and Laura Poitras that exposed NSA mass surveillance programs, especially those established after the 9/11 attacks, to unprecedented scrutiny.
The first major revelation from Snowden concerned a document that showed the NSA was collecting the phone records of millions of Verizon customers daily under section 215 of the PATRIOT Act. In 2015, the Second Circuit Court of Appeals determined [PDF] the collection was illegal and outside the scope of what Congress authorized.
Further revelations included (but were not limited to): a program called PRISM, which involved real-time collection of communications from companies like Facebook, Google, Microsoft, Skype, etc; the collection of email and chat contact lists from millions of people around the world; a “Dishfire” program that collected 200 million text messages per day that the NSA could use to mine contact information, location data, and credit card details; an NSA “loophole” that allowed agents to search U.S. citizens’ emails and phone calls without a warrant; and the targeting of messaging apps like Signal or WhatsApp or encryption tools like Tor.
What Snowden disclosed about surveillance, which was justified by the passage of the PATRIOT Act, showed U.S. security agencies were collecting all the data they could vacuum and copy on to their servers. It prompted a serious but rare conversation among lawmakers and the media about the powers the NSA abuses and the legal authorities the government claimed, which were never granted. Quite a number of programs that officials could not publicly defend were paused or discontinued.
Even a Drug Enforcement Administration program called USTO that harvested the records of billions of American’s international phone calls for more than two decades was ended by the Justice Department in September 2013 because of Snowden’s whistleblowing.
As the New York Times wrote in an editorial in January 2014, “Snowden told The Washington Post earlier this month that he did report his misgivings to two superiors at the agency, showing them the volume of data collected by the NSA, and that they took no action. (The NSA. says there is no evidence of this.) That’s almost certainly because the agency and its leaders don’t consider these collection programs to be an abuse and would never have acted on Mr. Snowden’s concerns.
“Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not.”
Despite the modest reforms embraced by lawmakers and the shift in public attitudes toward mass surveillance, Snowden continues to face charges under the Espionage Act and lives in exile under asylum in Russia.Obama reauthorized key provisions in the PATRIOT Act in 2012, but in 2020, the PATRIOT Act’s provisions mostly expired in 2020 when the House of Representatives failed to renew them.
This article was funded by paid subscribers of The Dissenter, a project of Shadowproof. Become a paid subscriber and help us expand our work.
Drone whistleblower Daniel Hale, who pled guilty to violating the Espionage Act, was transferred from a jail in Virginia to a communication management unit (CMU) at United States Penitentiary Marion in southern Illinois.
He is the first person convicted for an unauthorized disclosure of information to the press to be incarcerated in a CMU, which the Bureau of Prisons (BOP) claims is for terrorists and “high-risk inmates.”
The decision may effectively cut him off from his entire support network, including friends and fellow whistleblowers who were by his side as federal prosecutors aggressively pursued charges against him.
Hale was a signals intelligence analyst in the U.S. Air Force. He was deployed to Afghanistan and stationed at Bagram Air Base. He later worked as a contractor for a firm known as Leidos. His contracting job gave him access to documents on the drone program, and he shared copies with journalist Jeremy Scahill.
He pled guilty to one count of violating the Espionage Act on March 31. The Justice Department had him jailed at the Alexandria Detention Center after he pled guilty, and he was sentenced to 45 months in prison on July 27.
After sentencing, Hale was transferred to Northern Neck Regional Jail, where he expected to be held for two or three weeks until a bed opened at Federal Medical Center Butner in North Carolina, a facility that could offer him some form of mental health treatment.
But he was held at Northern Neck until October 1, when the BOP transported him to Marion. He arrived on October 6.
‘Another Draconian Move By The Government To Silence And Punish Whistleblowers’
Jesselyn Radack, who represented Hale as one of his lawyers, told the Dissenter, “It can only be seen as punitive that Daniel Hale, who has no criminal history and pled guilty to a nonviolent crime, got put in a secret, Kafkaesque, and isolated ‘terrorist unit’ with virtually no access to outsiders—or even other prisoners.”
“It’s another draconian move by the government to silence and punish whistleblowers,” Radack added.
On October 17, Radack shared that she had called the case management unit at Marion twice to seek some explanation but was routed to voicemail each time. “No one has returned my calls. It’s unprofessional, bordering on unconstitutional.”
“Our worst fear when we discovered that he was sent to Marion was that he would be placed at their notorious CMU,” declared Noor Mir, a close friend and member of his support team. “Daniel is a curious loving person, who craves contact with the outside world. It’s going to be really hard for him to not be able to call his support system.”
Mir spoke with Hale on October 14, however, Hale did not share any details about what happened between his arrival and their phone call. The support network believes he was placed in quarantine under COVID-19 protocol.
“We know he has a case manager, and that he has to submit contact lists and addresses for approval to mail, email, and call people,” Mir added. “He is able to go outside once a day and that makes him happy.”
According to Mir, Hale did not say anything more about the conditions at Marion—except that “it would be tough to not be able to talk” as much with his support team.Give a Gift Subscription
‘Political Prisons’ For Isolating Individuals Whose Ideas Are Deemed Dangerous By BOP
The Center for Constitutional Rights filed a federal lawsuit in 2010 against the Bureau of Prisons and officials involved in overseeing CMUs. They had oral argument before the D.C. Court of Appeals on October 18, where they urged the court to reverse a lower court’s decision and recognize the necessity of preventing due process violations.
“Since the BOP secretly opened its first communication management unit in 2006, it has used them as political prisons—to isolate individuals whose ideas the government considers dangerous,” declared Rachel Meeropol, a senior staff attorney for CCR who represents prisoners held in CMUs.”
Meeropol noted they were before the appeals court to argue “CMUs violate due process, as people sent to the unit are not told the true reason for their placement and have no meaningful way to rebut the factual basis for that placement.”
“The BOP has no right to inflict CMU-level isolation and restrictions on anyone without proper procedural protections but especially not an individual struggling with PTSD and depression, and in need of significant medical care,” Meeropol commented, when asked about Hale’s placement in a CMU.
There are CMUs at two federal prisons—USP Marion and Federal Correctional Institution Terre Haute in Indiana. The BOP’s Correctional Programs Division sets the policies for designating prisoners to CMUs, and the assistant director approves designations. The assistant director is currently Andre Matevousian.
Initially, the BOP did not develop “written procedures or criteria at all.” That meant prisoners like Yassin Aref, Kifah Jayyousi, and Daniel McGowan, all plaintiffs in CCR’s lawsuit, were subject to “haphazard and retaliatory” decisions to put them in a CMU.
CCR’s appeal, which was submitted in 2015 [PDF], outlined the differences between restrictions for general population and restrictions in a CMU.
“Most federal prisoners live in general population prison units, where they interact with a large population of fellow prisoners, receive 300 minutes of social telephone calls per month, and can enjoy contact visits with family and friends limited only by visiting hours and visiting room space—for up to 49 hours per month.”
“The BOP encourages these prisoners to use social telephone calls, visits, and letters to stay in touch with family and other loved-ones, due to the critical role such communication plays in a prisoner’s personal development and successful reentry back into society,” according to CCR.
However, prisoners in CMUs are not allowed interaction with other prisoners. “All avenues of communication with the outside world are restricted and monitored. All CMU social visits are live-monitored by BOP staff and must occur in English, unless previously scheduled for simultaneous translation.”
Prisoners and their visitors “meet in partitioned rooms separated by thick plexiglass, speak over a telephone, and are forbidden from hugging or even touching hands.” They are only allowed two four-hour blocks of visitation per month, but regulation allows Marion to limit visitation to only four hours with “immediate family.”
There are currently no visits allowed due to COVID-19, which means Hale is limited to restricted phone calls.
CMU prisoners are allowed two scheduled 15-minute calls a week, but regulation permits Marion to restrict calls to three 15-minute calls per month with “immediate family only.” Calls are subject to the same strict monitoring as visits, and that monitoring is done by an FBI agent.Tip Jar
Silenced By The Bureau Of Prisons
CIA whistleblower John Kiriakou faced a similar Espionage Act prosecution under President Barack Obama. He eventually pled guilty to violating the Intelligence Identities Protection Act in order to ensure he only went to prison for 30 months.
At his sentencing hearing, the judge, prosecutors, and his attorneys agreed Kiriakou would serve his sentence at the minimum security camp at Federal Correctional Institution Loretto in Pennsylvania. But when he arrived, Kiriakou learned the Justice Department had decided he was a “threat to public safety” and put him in the prison instead of the camp.
While in Loretto, Kiriakou wrote the “Letters from Loretto,” which were published by Firedoglake. They offered him a level of security in prison by ensuring people were watching how authorities handled him as a high-profile prisoner.
Kiriakou, along with NSA whistleblower Thomas Drake, have been mentors to Hale, offering him advice based on their experiences with Espionage Act prosecutions. They each talked with him regularly while he was jailed at Alexandria and Northern Neck. Both attended his sentencing hearing, where he delivered a 15-minute statement to the court.
When asked about Hale’s placement in a CMU, Kiriakou was in a state of disbelief. Hale was “supposed to be headed for Butner Low. He was recommended for Butner Low, and they put him in Marion Medium, CMU. For what reason?”
“How is he a danger to society? There are terrorists at Marion, like bonafide terrorists at Marion. And the purpose of putting him in Butner was because it’s a medical unit, and he needs medical and psychiatric treatment,” Kiriakou added.
Kiriakou last spoke to Hale in the final days of September, and he is certain the prison will not allow him on the list of approved contacts.
“Last time I spoke with him was on the 22nd of September,” Drake shared. “I expect to have trouble getting on his list while he is in the CMU at Marion.”
Lisa Ling, a former tech sergeant and whistleblower who worked on drone surveillance systems, is another close friend. She spoke to him just about every week after he was jailed in April.
“I was at his sentencing hearing, and now I may not be able to speak with him until he is released from prison on July 5, 2024,” Ling stated. “There is no telling what the requirements are for being on his call list. It’s not something they disclose to people.”
Ling added, “The man that told us strikes like the one in Kabul on August 29 are commonplace, and who told those erroneously placed on the No Fly List how lawyers could help them get off of the list, has now been silenced by the Bureau of Prisons.”
“These units are deleterious to anyone’s mental health. The military and the Veterans Affairs Department’s own study states social support is an integral part to healing from moral injury and post traumatic stress.” But CMUs are designed to prevent prisoners from having such social support.
As the lawsuit by CCR uncovered, “Prisoners are not told why they have been transferred to a CMU until after they arrive. Even then, the reasons they are provided are frequently vague, inaccurate, and/or completely false, and they are given erroneous—and even impossible— instructions for earning their way out of a CMU.”
It is likely Hale will remain cut off from the vast majority of his support network for his entire sentence, and his ability to weather the isolation will depend on how he manages to maintain his mental and physical health, which was already at a low point before he pled guilty.
This article was funded by paid subscribers of The Dissenter, a project of Shadowproof. Become a paid subscriber and help us expand our work.
Though District Judge Vanessa Baraitser ruled against the United States’ extradition request, she rejected the argument from the legal team for WikiLeaks founder Julian Assange that hostility within U.S. intelligence agencies “translated into improper pressure on federal prosecutors to bring charges.”
However, a Yahoo! News report on the CIA’s plans to kidnap or kill Assange contains some of the strongest evidence yet that Assange was only charged with crimes because of their thirst for vengeance.Assange was charged by the U.S. Justice Department with 17 counts of violating the Espionage Act and one count of conspiracy to commit a computer intrusion that, as alleged in the indictment, is written like an Espionage Act offense.
The charges criminalize the act of merely receiving classified information, as well as the publication of state secrets from the U.S. government. It targets common practices in journalism, which is why the case is widely opposed by press freedom organizations throughout the world.Assange is detained at Belmarsh, a high-security prison in London where he has been held since he was expelled from the Ecuador embassy in April 2019 and denied bail.
CIA Director Mike Pompeo obsessed over Assange and WikiLeaks, and sought revenge after the publication of “Vault 7” materials, redefining the media organization as a “hostile entity.” (His successor, Gina Haspel, shared his zeal for retaliation.)
Pompeo proposed kidnapping Assange in the summer of 2017. His obsession led several CIA officials to draw up plans for assassinating the publisher.
“Some National Security Council officials” in President Donald Trump’s administration “worried that the CIA’s proposals to kidnap Assange would not only be illegal but also might jeopardize the prosecution of the WikiLeaks founder,” according to the report. “Concerned the CIA’s plans would derail a potential criminal case, the Justice Department expedited the drafting of charges against Assange to ensure that they were in place if he were brought to the United States.”
Discussions about putting Assange on a rendition flight alarmed senior administration officials, like John Eisenberg, who was the top lawyer for the National Security Council, and his deputy, Michael Ellis.
“Pompeo [was] advocating things that are not likely to be legal,” including “rendition-type activity,” one former national security official told Yahoo! News reporters.
The Justice Department had yet to indict Assange, “even under seal.” If the CIA kidnapped Assange from the Ecuador embassy, they would be doing so without any “legal basis to try him in the United States.”
Meetings involving the CIA, where plans for kidnapping or killing Assange were raised, put pressure on prosecutors at the Justice Department.
“Eisenberg urged Justice Department officials to accelerate their drafting of charges against Assange, in case the CIA’s rendition plans moved forward, according to former officials. The White House told Attorney General Jeff Sessions that if prosecutors had grounds to indict Assange they should hurry up and do so, according to a former senior administration official.”
The British government held Assange on a “bail-jumping charge” after the Swedish prosecution authority dropped their preliminary investigation into alleged sexual acts.
On December 21, 2017, an indictment against Assange was filed under seal for allegedly conspiring to commit a computer crime.
Representatives of the Assange legal team were asked to comment but declined.
Attorneys for Assange did not have any of the above details from internal discussions. However they had enough evidence from Pompeo’s first public remarks and the spying operation by Undercover Global against the Ecuador embassy to single out the undue influence on the Justice Department.
“There was a decision under [President Barack] Obama’s administration in 2013 that there would be no prosecution,” Assange’s defense declared in their closing argument. “In fact, there was no prosecution under the Obama administration for clear reasons of constitutional principle.”
“Pressure was placed on career prosecutors by political appointees,” like Pompeo and Attorney General Jeff Sessions.
“This was part of a concerted plan by the executive, first to handicap his legal defense through the targeting of his lawyers, and to have him indicted, expelled from the embassy, and extradited; and further to ensure the escalation of the charges against him in the two superseding indictments,” his legal team added.
In November 2018, the New York Times reported that the April 2017 speech by Pompeo and “other efforts were intended in part to pressure the Justice Department to intensify [their] reassessment of Assange.”
Baraitser was not troubled by the hostility among U.S. intelligence agencies. “Although the intelligence community has spoken in hostile terms about Mr. Assange and Wikileaks, this is unsurprising given that he disclosed a vast number of their classified documents.” She added, “The intelligence community does not speak on behalf of the president or his administration.”
The district court judge further contended:
The defense submits that Mike Pompeo was leading the pursuit of this prosecution. They rely in particular on a speech from 13 April 2017 during which he described Wikileaks as a “non-state hostile intelligence agency” and stated, “we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now”. However, at this time Mr. Pompeo was Director of the Central Intelligence Agency (“the CIA”). After his appointment to Secretary of State in April 2018 there are no reports of hostile comments made in relation to Mr. Assange or to Wikileaks. [emphasis added]
The Yahoo! News report highlighted the intense debate within the Justice Department, FBI, and CIA in 2015. The FBI believed WikiLeaks should be their sole responsibility. The bureau did not think the CIA or NSA should be involved.
“The Justice Department, in particular, was ‘very protective’ of its authorities over whether to charge Assange and whether to treat WikiLeaks ‘like a media outlet,’ said Robert Litt, the intelligence community’s senior lawyer during the Obama administration.”
Because the Trump White House did not have the same hangups over “First Amendment issues,” the pressure to charge Assange was substantial. This was reflected in disagreements among career prosecutors, which the Washington Post covered the same month that Espionage Act charges were made public.
Still, Baraitser insisted, “I have been given no reason to consider that the U.S. criminal justice system in general or the judge designated to hear this case in particular, will be manipulated for political purposes at the behest of the executive or the CIA.”
Pompeo was asked about the Yahoo! News report by Megyn Kelly and replied by urging the Justice Department to launch mass prosecutions against the sources for the article.
“I can’t say much about this other than whoever those 30 people who allegedly spoke to one of these [Yahoo News] reporters — they should all be prosecuted for speaking about classified activity inside the Central Intelligence Agency.”
Based on the revelations, press freedom groups renewed their opposition to the political case.
“The CIA is a disgrace. The fact that it contemplated and engaged in so many illegal acts against WikiLeaks, its associates, and even other award-winning journalists is an outright scandal that should be investigated by Congress and the Justice Department,” stated Freedom of the Press Foundation executive director Trevor Timm, who testified at Assange’s extradition hearing.“[President Joe Biden’s administration] must drop [their] charges against Assange immediately. The case already threatens the rights of countless reporters. These new revelations, which involve a shocking disregard of the law, are truly beyond the pale.”
Rebecca Vincent, the director of international campaigns for Reporters Without Borders, reacted, “If true, these allegations of a CIA threat to Assange’s life are alarming, and underscore the very serious risk he remains at in detention, which would be exponentially heightened if the U.S. is successful in securing his extradition.”
“The exposed alleged plots that could cause severe harm or loss of life to Assange or his associates are threats to press freedom itself. The Biden administration must act immediately to distance itself from these shocking reports of the Trump administration’s actions, close the case against Assange once and for all, and allow for his release from prison before any further harm is caused.”
This article was funded by paid subscribers of The Dissenter, a project of Shadowproof. Become a paid subscriber and help us expand our work.
There were no criminal prosecutions for anyone in the Central Intelligence Agency when they operated a torture program. The White House under President Barack Obama fully embraced a drone program that involved targeted assassinations.
Now, we learn that the CIA redefined WikiLeaks as a “hostile entity” and sought to label WikiLeaks founder Julian Assange as an “information broker” to justify aggressive actions intended to disrupt journalism. They even had plans to kill him.
The latest revelations around Assange are exactly why so many advocates did not think it was acceptable for the Obama administration to move forward and not look backward.
For Yahoo! News, journalist Michael Isikoff, along with help from Zach Dorfman and Sean D. Naylor, reported on “secret war plans” against Assange that involved proposals for kidnapping and assassination.
CIA director Mike Pompeo became obsessed with Assange and WikiLeaks after the publication of “Vault 7” materials. He sought revenge and redefined the media organization as a “hostile entity.” (His successor, Gina Haspel, shared his thirst for vengeance.)
On April 13, 2017, at the Center for Strategic and International Studies (CSIS), a think tank in Washington, D.C., Pompeo delivered his first speech as CIA director. He declared, “WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service and has encouraged its followers to find jobs at the CIA in order to obtain intelligence.”
“It directed Chelsea Manning in her theft of specific secret information. And it overwhelmingly focuses on the United States while seeking support from anti-democratic countries and organizations. It’s time to call out WikiLeaks for what it really is, a non-state hostile intelligence service often abetted by state actors like Russia.”
Pompeo promoted a conspiracy theory riddled with fabrications, which became the narrative for the initial indictment against Assange released two years later.
After WikiLeaks helped Snowden leave Hong Kong and WikiLeaks published emails from the Clinton campaign, the CIA believed WikiLeaks staff and individuals affiliated with WikiLeaks were valid targets. They could hack their personal devices “from afar.”
The agency could also paralyze WikiLeaks’ “digital infrastructure,” disrupt their communications, provoke “internal disputes within the organization by planting damaging information,” and steal “WikiLeaks members’ electronic devices.” (Note: There are no “members” of WikiLeaks.)
Plans escalated as Pompeo proposed kidnapping Assange in the summer of 2017. He talked about putting Assange on a rendition flight. They considered breaking into the embassy, dragging him out, and bringing him to where the CIA wanted.
“Agency executives requested and received ‘sketches’ of plans for killing Assange and other Europe-based WikiLeaks members who had access to Vault 7 materials, said a former intelligence official. There were discussions ‘on whether killing Assange was possible and whether it was legal,’ the former official said,” the Yahoo! News further revealed.
Around this same time, the CIA developed some kind of an arrangement, where Undercover Global, a Spanish firm in charge of security at the Ecuador embassy in London, rigged microphones and cameras. They provided agents with audio recordings and video footage of Assange, his legal team, and journalists and other guests who visited him.
The CIA backed Ecuador President Lenin Moreno and his administration in their campaign to pressure Assange to leave the embassy.
Additionally, the Justice Department was reportedly fearful of the CIA’s plans to kidnap or even kill WikiLeaks founder Julian Assange. But rather than go to Congress or leak certain details to the press, the Justice Department decided it was best to indict Assange so the CIA would no longer be able to mount operations in the shadows.
Justice Department prosecutors disregarded the conclusions of lawyers under Attorney General Eric Holder that there was a “New York Times problem” and Assange could not be prosecuted under the Espionage Act without exposing editors of newspapers that published WikiLeaks documents to potential charges.
It is as perverse as any assassination fantasy that Pompeo had.
The political prosecution of Assange is built on a moral rot at the core of the U.S. national security establishment and politicians who have sold their souls to these institutions.
The CIA spied on the Ecuador embassy, collected legally-privileged conversations among attorneys, and broke into the personal devices of guests visiting Assange.
The FBI worked with an informant named Siggi Thordarson, a serial liar and sociopath who embezzled funds from the WikiLeaks store and sexually preyed on underage boys.
The FBI seized Assange’s personal archive, confidential medical data, and legally privileged materials from the embassy following his arrest.
And now we know the CIA was out for revenge, and we have key details about how the agency plotted to assassinate a publisher.
Because there are apparently no meaningful consequences for crossing any boundaries. The gloves are off, and there’s no one in power willing to make them put the gloves back on their hands.
This article was funded by paid subscribers of The Dissenter, a project of Shadowproof. Become a paid subscriber and help us expand our work.
*Editor’s Note: To mark the 20th anniversary of the rise of the American security state after the September 11th attacks, The Dissenter will spend the month of September presenting a retrospective on this transformation in policing and government. Each entry in the series, “Twenty Years In A Security State,” will connect with whistleblower stories where possible.
Following the September 11th attacks, an FBI whistleblower accused FBI Headquarters of failing to urgently respond to intelligence that pointed to a terrorism threat. It brought embarrassment to the FBI, and in the months to follow, the FBI transformed into a “preventative crime” agency.
FBI agents manufactured terrorism plots that they could then tell American citizens they thwarted. They would often prey upon young and impoverished Arab and Muslim men or even black men with no ties whatsoever to any terrorism group.
On May 21, 2002, former Minneapolis FBI’s chief division counsel Coleen Rowley sent a letter to FBI Director Robert Mueller. She contended FBI headquarters prevented the office from obtaining a warrant against Zacarias Moussaoui to search his laptop.
He was arrested on August 16 by Immigration and Naturalization Service (INS) agents on an immigration violation.
Moussaoui enrolled in August 2001 in the Pan-Am International Flight Academy in Eagan, Minnesota in August 2001. The flight school notified the FBI that Moussaoui “only wanted to learn how to take off and land the airplane, that he had no background in aviation, and that he had paid cash for the course,” according to an investigation by the Office of Inspector General for the Justice Department.
A federal district judge eventually approved a search warrant on September 11th for Moussaoui’s laptop after the attacks, and in Rowley’s memo she declared the “only main difference” between the information submitted to FBI headquarters for a warrant and the one the judge signed was the “fact that, by the time the actual warrant was obtained, suspected terrorists were known to have hijacked planes which they then deliberately crashed into the World Trade Center and the Pentagon.”
“[To say] that probable cause did not exist until after the disastrous event occurred is really to acknowledge that the missing piece of probable cause was only the FBI’s (FBIHQ’s) failure to appreciate that such an event could occur,” Rowley added. (The inspector general investigation maintained probable cause was not clear.)
During a congressional hearing in February 2006 on retaliation against national security whistleblowers, Representative Dennis Kucinich praised Rowley and stated, “Model employees are either ignored or told to keep their mouths shut. Their honesty is not rewarded but rather they and others in law enforcement, national security, and the intelligence community are punished through a systematic and harsh series of personal and professional retaliations.”
“There is absolutely nothing subtle about the retaliation which whistleblowers face. Scare tactics are used to enforce discipline to warn other potential whistleblowers against coming forward. National security whistleblowers are subject to harassment, to transfers or demotion or unrelated personal attacks about their sexual activities or personal finances. Instead of examining merits of allegations, the story becomes shifted to the whistleblower’s conduct,” Kucinich recognized.
The FBI Promises Money To Destitute Black Men If They Engage In Terrorism
Elie Assaad, the FBI’s professional informant who targeted the “Liberty City Seven”
Around this time, the FBI was engaged in a sting operation in Miami against seven young black men, including two Haitian immigrants. The FBI accused them of planning to blow up the Sears Tower in Chicago. They became known in the press as the “Liberty City Seven.”
But the group of men had no weapons. They had no ties to any terrorist group. They had no plot except for the one that was supplied to them by the FBI’s professional informant, Elie Assaad, who pretended to represent a cell of militants associated with al Qaida and Osama bin Laden.
Another FBI informant, Abbas al-Saidi, constantly put ideas in their heads and would laugh about it at his home.
Narseal Batiste, the leader of this group, strode around the poor neighborhood of Liberty City in a robe and with a wooden staff. He acted like he was a Moorish spiritual leader. Simultaneously, Batiste and the other men were trying to start a construction company and needed money.
In PBS FRONTLINE’s “In the Shadow of 9/11,” the targeted men tell their side of the story. They believed they could scam Assaad and take the money to help them deal with their troubles.
Batiste said, “I thought Abbas was an avenue to relinquish my financial difficulties. If I can just get the money, I can pay these immediate bills. That was the only thing that kept driving me, that if I get that one handful of money then it’s over with.”
Assaad told the men accused of conspiracy that they would help al Qaida blow up five FBI offices. They would perform reconnaissance so that the office in Miami could be attacked.
When Batiste was instructed by Assaad to give him a list of supplies needed to complete this operation, he asked for “knee-high boots” and “hand pistol machine guns.” He had no idea what to ask for and supplies he requested made zero sense.
On March 16, 2006, Assaad sat in a room and compelled the men to recite what he called an “al Qaeda pledge.”“I am representing the sheikh Osama bin Laden. God’s pledge is upon me and so is his compact, and that I will be a soldier of the Islamic soldiers. And that I commit myself, along my brothers’ path on the road of jihad. You understand me, all of you. What’s clear. Now repeat after me,” Assaad proclaimed.
In June, the FBI conducted raids and arrested the seven men. Attorney General Alberto Gonzales said, “Our philosophy here is that we try to identify plots in the earliest stages possible because we don’t know what we don’t know about a terrorism plot.”
Yet the FBI, and the prosecutors who prosecuted the men for “providing material support to terrorism,” knew the plot was effectively conceived by the agency through their informants.
The Justice Department went to trial three times. In 2007 and 2008, both juries deadlocked, and one of the men, Lyglenson Lemorin, was acquitted after the first trial. The U.S. government responded by deporting him to Haiti, and months later, when his 15 year-old son was killed on the highway while trying to help move a stalled vehicle, Lemorin was not permitted to attend his son’s funeral.
The third trial returned five guilty verdicts and another acquittal after two alternate jurors were brought in during deliberations. Batiste received a 35-year sentence while the other four received 10- or 15-year sentences.
Former FBI special agent and whistleblower Mike German reasoned, “Through 2005 and 2006, there had been a very heated debate over extending expiring provisions of the PATRIOT Act. So I think there was great pressure on the FBI to demonstrate both that there was still a powerful threat that existed inside the United States that justified the expanded surveillance authority and that the tools that they had been given through the PATRIOT Act were actually effective in identifying the plots.”
A similar sting operation occurred in 2009 against the Newburgh Four. David Williams, a young black man with financial struggles, was offered “$250,000, several luxury cars, and financing for a barbershop,” if he helped a wealthy Pakistani businessman launch a terrorist attack against a synagogue in New York. Shahed Hussain, who had a criminal record, was also a professional informant for the FBI. Hussain referred to Jewish people as the “root of all evil” and encouraged the men to behave in an anti-Semitic manner.
The Terror Factory Goes Camping
The FBI’s targets were not always young black or brown men living in poverty or dealing with social alienation. They could be someone like Adnan Mirza, who worked on cultural sensitivity training for the Houston Police Department about Islam.
As highlighted in a report from Human Rights Watch and Columbia Law School’s Human Rights Institute, in 2005 the FBI deployed an undercover agent named “Malik Mohammed” to pose as someone with a military background who had experience with hand-to-hand combat.
“On November 28, 2006, Mirza was arrested. After a four-day trial, the jury found Mirza guilty of all nine counts. He was sentenced to 15 years in prison.”
Mohammed tagged along with Mirza, Jim Coates, and Kobie Williams when they went camping in Willis, Texas, “where they barbecued, shot at a shooting range, and engaged in discussions on a variety of topics, ranging from women to group travel to Afghanistan. Based largely on their conversation, the prosecution in the case against Mirza alleged that these were ‘training camps’ to prepare Mirza and his friends to go to Afghanistan and fight against U.S. forces.”
Coates, who worked with Mirza on a “Why Islam” campaign to confront negative stereotypes about Muslims, was a paid informant. He agreed to work for the FBI after he was stopped by Customs and Border Patrol (CBP) in Big Bend National Park, and the CBP found weapons in his car.
FBI Director Robert Mueller (Screen shot from PBS FRONTLINE’s “In the Shadow of 9/11”)
The FBI’s informants encouraged the shooting and “military training.” They brought nearly all of the guns present at the camping site. They encouraged Mirza to practice shooting. They “suggested the idea of traveling overseas.” They made Mirza the “ringleader” by claiming he collected $1,000 from Williams and the informants that was supposed to go to the Taliban, though they had no evidence to back up this allegation.
While civil liberties organizations and human rights groups have partnered with universities or colleges to review this FBI practice, the U.S. Congress has refused to challenge the dozens of instances where the FBI manufactured the terrorism plots, which they later claimed in public were thwarted by their own agents.
All four presidential administrations—George W. Bush, Barack Obama, Donald Trump, and Joe Biden—embraced preemptive prosecutions through coercive FBI sting operations.
In the time spent inventing terrorists, the FBI routinely missed individuals who posed threats: Faisal Shahzad (the “Times Square Bomber”), Umar Farouk Abdulmutallab (the “Underwear Bomber”), Major Nidal Hasan (the “Fort Hood Shooter”), Naser Abdo, who plotted to attack soldiers at Fort Hood, Khalid Aldawsari, a Saudi student who ordered chemicals to make a bomb, and Dzhokhar and Tamerlan Tsarnaev (Boston Marathon bombers).
Passengers on the plane thwarted Richard Reid, when he tried to blow up the aircraft by detonating a bomb in his shoe. Abdulmutallab was also stopped by airline passengers, who saw smoke, heard a pop, and subdued him.
Next in the series: Hundreds of Arabs or Muslims in the United States were rounded up after 9/11 attacks
This article was funded by paid subscribers of The Dissenter, a project of Shadowproof. Become a paid subscriber and help us expand our coverage of whistleblower stories.
Laws intended to suppress journalism, whistleblowing, and speech on the food and agriculture industry continue to experience defeats in the United States court system.
Known as “ag-gag” laws, the Tenth Circuit Court Of Appeals ruled [PDF] against the ag-gag law in Kansas, which became the first state to pass such a law in 1990.
The Eighth Circuit Court of Appeals ruled [PDF] on August 9 that a coalition of organizations proved they could be targeted by the ag-gag law in Arkansas and may proceed with their lawsuit. It also ruled [PDF] on August 10 that Iowa’s 2012 ag-gag law was partly unconstitutional.
In all three states, the Animal Legal Defense Fund (ALDF) was one of the plaintiffs challenging the manner in which these laws threaten freedom of speech under the First Amendment.
“Kansas has hindered the ability of whistleblowers to expose inhumane conditions associated with factory farms for more than three decades while infringing on First Amendment rights,” ALDF executive director Stephen Wells declared. “The Tenth Circuit’s decision is a victory for animals throughout the state, who are forced into industrial animal agriculture and suffer in secret behind closed doors.”
According to ALDF, “Kansas is a major agricultural producer with the third-most cows of any state, and until being struck down, its ag-gag law had successfully prevented whistleblowers from investigating the conditions that millions of pigs, cows, and chickens endure.”Tip Jar
The defense fund maintains it will be criminalized by ag-gag laws because the organization plants investigators as employees of animal facilities. As the Tenth Circuit summarized, once employed the investigators document animal abuse and then publicize the evidence.
“Because investigators would be willing to lie about their association with ALDF, ALDF fears its investigators would run afoul of the [law].”
“Kansas may not discriminate between speakers based on the unrelated issue of whether they intend to harm or help the enterprise,” the Tenth Circuit stated. “But that is the effect, and stated purpose, of the provisions at issue.”
The Tenth Circuit acknowledged the ag-gag law in Kansas punishes entry to facilities with the “intent to the tell the truth on a matter of public concern.”
‘A Tool That Can Be Used’ Against Animal Rights Activists
When the law passed in Kansas in 2012, it was openly hostile toward ALDF. “In some states, animal rights activists with an anti-agriculture agenda have lied on job applications in order to gain access to farms or ranches and take undercover video, some of which is believed to be staged. This amendment is a tool that can be used against people using fraud to gain access to farms.”
“This confirms what the text of the law alone demonstrates: the act places pro-animal facility viewpoints above anti-animal facility viewpoints,” the Tenth Circuit added, which is viewpoint discrimination that violates the First Amendment.
The Eighth Circuit’s decision on the Iowa ag-gag law was less of a victory. It found nothing unconstitutional about prohibiting the accessing of agricultural production facilities through “false pretenses.” However, it rejected the employment provision because it allows for the prosecution of individuals, even if those false statements do not influence an offer of employment.
The majority suggested Iowa could “fix” the law by targeting “false statements that are material to a hiring decision.” (It’s unclear if that would be supported by ALDF and other plaintiff organizations.)
In Arkansas, ALDF, along with Animal Equality, the Center for Biological Diversity, and the Food Chain Workers Alliance, sued Peco Foods, Inc. and Jonathan and DeAnn Vaught, a member of the Arkansas House of Representatives who is part of Arkansas Farm Bureau, Arkansas Cattlemen’s Association, and Arkansas Pork Producers.
The groups allege that they plan to investigate Peco Foods’ chicken slaughterhouse and the Vaughts’ pig farm, but they cannot do so without facing criminalization under Arkansas’ ag-gag law, which allows civil suits to target undercover investigators who may seek employment. It also permits the criminalization of anyone who collects information “by personal observation or use of unattended recording devices.”
DeAnn Vaught apparently sponsored the legislation, and the plaintiffs believe this stemmed from a desire to conceal the conditions for animals on their farm. They additionally maintain that Peco Foods uses a “high-speed slaughter” line at their facilities, as well as a “live hang” method for slaughtering the animals.
The Eighth Circuit examined ALDF’s allegations related to what would happen to them under the ag-gag law if they investigated Peco Foods or the Vaughts’ farm and determined their “fear of enforcement” was “objectively reasonable.”
Their lawsuit will return to the lower court and challenge the constitutionality of the law.
Iowa Makes Audio Or Video Recording A ‘Trespassing’ Crime
Iowa lawmakers recently escalated their attacks on journalism or whistleblowing around animal abuse in the food industry, passing a law that explicitly designates audio or video recording as “trespassing” crimes.
ALDF argues “the law threatens increased penalties for recording even in public places and locations advocates have long used for public advocacy, such as in open areas of legislators’ offices and parts of businesses in which other members of the public regularly come and go.”
“After repeated attempts by the state of Iowa to thwart animal advocates’ efforts to document the inhumane treatment of animals on factory farms, the legislature has enacted a new and broader law that deceptively impacts a broad range of industries while still maintaining its original — and unconstitutional — purpose of suppressing speech about industrial agriculture,” according to Wells.
Each expansion of measures aimed at suppressing journalism, whistleblowing, and speech around animal abuse serves agribusinesses and their lobbyists who are threatened by transparency and accountability. It also defies federal courts throughout the country, which continue to strike down these laws.
Though Judge Leonard Grasz, who is part of the Eighth Circuit, backed the decision that upheld part of the Iowa ag-gag law, he commented, “At a time in history when a cloud of censorship appears to be descending, along with palpable public fear of being ‘canceled’ for holding ‘incorrect’ views, it concerns me to see a new category of speech which the government can punish through criminal prosecution.”
Most of the lawmakers, who back these laws that protect agribusiness interests by criminalizing speech, are the same elected politicians constantly prattling on about “cancel culture.”
“Ultimately, the Supreme Court will have to determine whether such laws can be sustained or whether they infringe upon the ‘breathing room’ necessary to effectuate the promise of the First Amendment,” Grasz concluded.
This article was funded by paid subscribers of The Dissenter. Become a paid subscriber and help us expand our coverage of whistleblower stories.
President Joe Biden delivered a speech where he stood by the withdrawal of United States military forces from Afghanistan, but he crudely blamed the people of Afghanistan for the chaos that has unfolded over the past several days.
It was a lie to assert the war in Afghanistan was never about nation-building. Neoconservatives in President George W. Bush’s administration, who launched the war, deployed troops for an open-ended mission to establish a government that could secure the country against the Taliban and be a reliable ally in the region.
Biden also lied about opposing a surge in Afghanistan when he vice president in President Barack Obama’s administration. He backed sending an additional 20,000 troops but was opposed to sending more than 20,000 like Obama did.
The president had nothing to say about the Pentagon and CIA’s resistance to adequately planning for withdrawal, even though that could have helped avoid some of the scenes of panic which were broadcast.
As Matthew Hoh, former State Department official who resigned in protest against Obama’s surge, put it in a CODEPINK webinar, the speech reflected the willingness and ease in which U.S. officials can lie and get away with it. They do not have to fear being called out or confronted. And that has allowed “all wars throughout the Muslim world to continue” and evolve into wars that are hidden and secret. (But of course, not secret and hidden to the people suffering from their impacts.)
Plenty of time should be spent sifting through the lies and delusions spread about the Afghanistan War because many of those lies and delusions contributed to a collective shock as the Taliban took control of Kabul. However, just as important are the truths that were uttered by dissenters against the agenda of perpetual war promoted by war hawks and craven politicians.
So let’s elevate those voices that were right and remember to seek out such voices next time a presidential administration—with the support of legislators—moves toward launching a war.
War Will Not Prevent International Terrorism
Representative Barbara Lee was the sole vote in the House of Representatives against the resolution that gave Bush the authority to use whatever force was deemed necessary in response to the 9/11 attacks. Through her vote, she opposed the military invasion of Afghanistan.
“I am convinced that military action will not prevent further acts of international terrorism against the United States. This is a very complex and complicated matter. Now, this resolution will pass, although we all know that the president can wage a war even without it. However difficult this vote may be, some of us must urge the use of restraint,” Lee declared on September 14, 2001.
In November 2009, U.S. ambassador to Afghanistan Karl Eikenberry warned in two classified cables against expanding the war through a “strictly military counterinsurgency effort.” He was concerned the U.S. would become “more deeply engaged” with “no way to extricate ourselves, short of allowing the country to descend again into lawlessness and chaos.”
“We agree that more troops will yield more security wherever they deploy, for as long as they stay. But the last time we sent substantial additional forces, a deployment totaling 33,000 in 2008-2009, overall violence and instability in Afghanistan intensified.”
Eikenberry thought the surge would deepen Afghan dependence on U.S. troops. “Many areas need not just security but health care, education, justice, infrastructure, and almost every other basic government function. Many have never had these services at all. Establishing them requires trained and honest Afghan officials to replace our own personnel. That cadre of Afghan civilians does not now exist and would take years to build.”
The Truth Has Become Unrecognizable
When Matthew Hoh resigned around this time, he wrote a letter to Obama that stated, “I have observed that the bulk of the insurgency fights not for the white banner of the Taliban, but rather against the presence of foreign soldiers and taxes imposed by an unrepresentative government in Kabul. The United States military presence in Afghanistan greatly contributes to the legitimacy and strategy message of the Pashtun insurgency.”
For Jeremy Scahill’s 2013 book Dirty Wars, Hoh described how Joint Special Operations Command (JSOC) forces were in Afghanistan “chasing after mid-level Taliban leaders” who posed no threat to the United States. “We found ourselves In this special operations form of attrition warfare.” (By his estimate, there were fewer than 100 al Qaida operatives left in Afghanistan.)
In 2012, Lt. Col. Daniel Davisblew the whistle on the war after a second tour in Afghanistan and submitted a classified and unclassified report to Congress and the Obama administration. ”Senior ranking U.S. military leaders have so distorted the truth when communicating with the U.S. Congress and American people in regards to conditions on the ground in Afghanistan that the truth has become unrecognizable,” he declared.
Afghanistan War supporter and Washington Post columnist Max Boot feebly insulted Davis as a “reservist,” but Davis was in a position to reach out to people in power. He managed to brief four members of Congress and share his reports with the Pentagon’s inspector general.
According to Rolling Stone journalist Michael Hastings, Davis detailed “the gross failure of training the Afghan Army, the military’s blurring of the lines between public affairs and ‘information operations’ (meaning, essentially, propaganda), and the Pentagon’s manipulation of the U.S. media.
“It is my recommendation that the United States Congress—the House and Senate Armed Services Committees in particular—should conduct a bipartisan investigation into the various charges of deception or dishonesty in this report and hold broad hearings as well,” Davis urged. “These hearings need to include the very senior generals and former generals whom I refer to in this report so they can be given every chance to publicly give their version of events.”
U.S. General Stanley McChrystal (Photo: ResoluteSupportMedia)
The vast majority in the media establishment did not question what they were told by military brass. But in his 2012 book, The Operators: The Wild and Terrifying Inside Story of America’s War in Afghanistan, Hastings documented the role of General Stanley McChrystal and other generals behind counterinsurgency operations. He determined based on his observations as a correspondent that the war was unwinnable.
Used to the culture among elite journalists who desire access, McChrystal tried to shape a magazine profile on him in Rolling Stone. Hastings was not about to publish a fawning portrait and wound up publishing an article that set off a chain of events leading to McChrystal’s resignation.
Following the raid on Osama bin Laden, Hastings wrote, “Bin Laden’s death revealed the biggest lie of the war, the ‘safe haven’ myth, Afghanistan’s version of WMDs. The concept of waging an extremely expensive and bloody counterinsurgency campaign to prevent safe havens never truly made sense. Terrorists didn’t need countries.”
Sparking A Domestic Debate On The Military
In 2010, U.S. Army whistleblower Chelsea Manning released the Afghanistan War Logs, which were military incident reports from 2004-2009. At her court-martial, she reflected on the documents.
“I felt that we were risking so much for people that seemed unwilling to cooperate with us, leading to frustration and anger on both sides. I began to become depressed with the situation that we found ourselves increasingly mired in year after year,” Manning stated. “The SigActs [significant activity reports] documented this in great detail and provide a context of what we were seeing on the ground.”
She added, “I believe that if the general public, especially the American public, had access to the information contained within [the reports] this could spark a domestic debate on the role of the military and our foreign policy in general.”
“I also believed the detailed analysis of the data over a long period of time by different sectors of society might cause society to reevaluate the need or even the desire even to engage in counterterrorism and counterinsurgency operations that ignore the complex dynamics of the people living in the affected environment every day,” Manning shared.
The documents exposed the use of assassination squads, unreported civilian casualties by CIA and U.S. military forces, the use of psychological warfare, and U.S. military suspicions of foreign support for the Taliban.
Manning was sentenced to 35 years in a military prison and convicted of several Espionage Act-related offenses.
For Daniel Hale, who was an Air Force intelligence analyst in Afghanistan, Manning was a kind of an inspiration. He provided Scahill with documents that were published as part of “The Drone Papers,” which were published in 2015.
Hale revealed that the U.S. military designated all people killed as “enemies killed in action” or EKIA, regardless of whether those killed were targets.
“Unless evidence posthumously emerged to prove the males killed were not terrorists or ‘unlawful enemy combatants,’ EKIA remained their designation,” Hale shared. “[That process] is insane. But we’ve made ourselves comfortable with that. The intelligence community, JSOC, the CIA, and everybody that helps support and prop up these programs, they’re comfortable with that idea.”
Hale further described “official U.S. government statements minimizing the number of civilian casualties inflicted by drone strikes as ‘exaggerating at best, if not outright lies.’”
Similar to Manning, the Justice Department targeted Hale with an Espionage Act prosecution. He was sentenced to 45 months in prison on July 27.
Toward the end of 2019, documents from the Special Inspector General for Afghanistan Reconstruction (SIGAR) were published by the Washington Post as the “Afghanistan Papers.” Much like the Pentagon Papers that exposed the Vietnam War, they showed that high-ranking U.S. officials were well aware that the war was not winnable and had deliberately misinformed the public.
Undoubtedly, there are voices in this overview of dissent, including some who were lesser known. A number of veterans returned home and joined with antiwar groups to protest the continued occupation. CODEPINK was one organization that constantly mobilized opposition on milestone dates.
Additional members of Congress, particularly after Obama’s election, joined Rep. Barbara Lee and were against extending the war in Afghanistan. A few were even Republicans, like Representatives Ron Paul and Walter Jones.
Anyone in the U.S. government or U.S. establishment media could have listened to these voices and acknowledged that they were correct and their assessments demanded immediate action to end the war. Their objections were covered widely by the press. However, presidential administrations, lawmakers, and media organizations repeatedly dismissed the facts on the ground, or worse, recommitted forces and escalated the war.
Sadly, the costs of their ignorance, as well as the lack of accountability, will continue to be felt by Afghans well after the images of the Taliban taking Kabul fade from our collective consciousness.
This article was funded by paid subscribers of The Dissenter. For a limited time, take 25% off a monthly subscription and help us boost our coverage of the Assange case.
WikiLeaks founder Julian Assange was astounded by Britain’s High Court after it reversed a prior decision and permitted the United States government’s appeal on grounds related to his health.
Lord Justice Timothy Holroyde accepted the U.S. could challenge the weight that was given to Professor Michael Kopelman’s evidence because he “misled” the district court and did not disclose the fact that he knew Assange was in a relationship with Stella Moris and fathered two children in the Ecuador embassy.
He also allowed the U.S. to argue the district judge had erred when considering the evidence that went to Assange’s risk of suicide.The High Court of Justice already granted an appeal on grounds related to how Assange would be treated in a U.S. jail or prison and whether Judge Vanessa Baraitser should have sought “assurances” from the U.S. to alleviate human rights concerns.
Speaking via video link from Belmarsh prison after the hearing, Assange told Edward Fitzgerald QC, one of his defense attorneys, an “expert witness has a legal obligation to protect people from harm.”
Kopelman, a neuropsychiatrist who treated him from May to December 2019, was looking out for “my children,” Assange added.
Assange referred to the guns that were found in UC Global director David Morales’ home when a search was conducted by police. The brand and serial numbers were erased on both weapons. (UC Global is the private security company that spied on the Ecuador embassy, tried to obtain a diaper from one of Assange’s children for DNA testing, and discussed potentially kidnapping or poisoning him.)
Fitzgerald agreed that human rights need to be considered, but now the legal team must turn to the “assurances” the U.S. is offering to persuade the court Assange will not be cruelly or inhumanely treated.
He further noted that the decision by the High Court was part of a preliminary hearing. It was not the appeal. The court simply ruled that the grounds were “arguable,” and it’s “not the end of the line,” Fitzgerald pointed out. They would discuss the implications of what unfolded later when they could do so privately.
It was an extraordinarily rare moment, where press on the video link were given a glimpse of how this case that has unfolded over the past two years is wearing on Assange.
The Constant Threats And Intimidation
“The judges today said that the court will allow the factual evidence to be argued at the final hearing on the 27th and 28th of October. They’ll allow the factual evidence to be argued,” Moris declared. “What has not been discussed today is why I fear for my safety and the safety of our children and Julian’s life.”
Moris highlighted the “constant threats and intimidation” that they have endured for the past few years. Threats have been issued against her, against their children, against Assange’s eldest son, Daniel, and against Assange’s life.
Of course, Moris added, there are “threats of a 175-year prison sentence and the actual ongoing imprisonment of a journalist for doing his job. These are sustained threats to his life for the past 10 years. These are not just items of law. This is our lives. We have the right to exist. We have a right to live and we have a right for this nightmare to come to an end once and for all.”
Clair Dobbin QC, who is with the Crown Prosecution Service representing the U.S. government, relied on a declaration to the district court that Kopelman signed, where he agreed to be an impartial expert witness. It informed him of his obligation to the court and instructed him not to withhold information that could adversely impact the evidence he provided.
“If an expert has misled the court, he has failed in his duty,” Dobbin stated. She maintained Baraitser did not “appreciate the significance of the fact that Kopelman was willing to mislead” the court.
In response, Fitzgerald contended the district judge was fully aware of the prosecution’s criticism and she concluded that Kopelman misled the court. However, in light of all the evidence, which included two psychiatric reports and in-person testimony in court, Baraitser decided Kopelman did not fail in his duty to the court.
Kopelman consulted with the defense on whether it would be appropriate in his first report to disclose the name of Assange’s partner and reveal she was the mother of the two children. The decision to disclose the details was deferred until further legal advice could be obtained, according to Fitzgerald.
There was no “tactical advantage being gained,” Fitzgerald said. It was simply a matter of concern for the “human predicament.” For example, there were “very real fears and concerns” around UC Global and their surveillance against Assange and his family.
“Where is the point of law? Where is the arguable point of principle? Where indeed is the basis for the reviewing court to say this is wrong?” Fitzgerald rhetorically asked.
“I did not accept that Professor Kopelman failed in his duty to the court when he did not disclose Ms. Moris’s relationship with Mr. Assange,” Baraitser ruled. “In my judgment Professor Kopelman’s decision to conceal their relationship was misleading and inappropriate in the context of his obligations to the court, but an understandable human response to Ms. Moris’s predicament.”
Baraitser additionally detailed, “He explained that her relationship with Mr. Assange was not yet in the public domain and that she was very concerned about her privacy. After their relationship became public, he had disclosed it in his August 2020 report. In fact, the court had become aware of the true position in April 2020, before it had read the medical evidence or heard evidence on this issue.”
In other words, Baraitser was not misled by the omissions. She assessed his medical evidence while considering the fact that Assange had a new family that he started while in the Ecuador embassy.
The Judge Should Be The Primary Decision Maker
The High Court judges also concluded that a separate ground of appeal, previously rejected by the court, can now be argued by the U.S. government in the appeal hearing scheduled for October 27 and 28. As to the risk of suicide, the U.S. government asserted Baraitser misinterpreted medical evidence or gave insufficient weight to evidence presented by forensic psychiatrists Professor Seena Fazel and Dr. Nigel Blackwood. They told the court too much weight was given to Kopelman and Dr. Quinton Deeley’s evidence. Deeley is a consultant psychiatrist specializing in autism and various mental health conditions. He concluded that Assange is on the “high functioning end” of the autism spectrum.
The prosecution’s written appeal argued that the evidence given last year by Deeley showed that any suicide risk would be the result of a rational and voluntary choice. If this is the case, then the relevant legal test prohibiting his extradition could not be satisfied. But this interpretation of Deeley’s evidence was contradicted by the actual testimony he gave in September 2020 at the extradition hearing. Deeley made clear that Assange’s autism combined with the conditions under which he would be held in the U.S. would result in a high risk of suicide—a point raised by Fitzgerald during today’s hearing.
Assange’s legal team emphasized that Baraitser weighed the testimony and evidence of all of the experts and was ultimately entitled, as the decision maker, to determine whom she found most convincing.
“[The prosecution’s] attack [on Baraitser’s decision to prefer the defense’s medical evidence] totally fails to recognize the entitlement of the primary decision maker to reach her own decision on the weight to be attached to the expert evidence of the defense on the one hand and the prosecution experts on the other,” Assange’s lawyers argued in their written submissions.
The High Court determined, since they allowed the prosecution to challenge how Baraitser weighed the evidence from Kopelman, it was only logical to permit this ground to be argued as well. (Though Holroyde, who was one of two judges at the hearing, appeared to doubt whether these arguments added much to the prosecution’s case.)Fazel, one of the prosecution’s preferred doctors, argued in 2020 that suicide risks are “dynamic.” They can change as circumstances change, and it is “very, very difficult to anticipate” with any certainty what one’s suicide risk would be over the course of many months. He did not concur with Deeley’s autism diagnosis but did recognize that, unlike Deeley, he did not specialize in the field. Fazel also noted, as an expert in suicides in prisons, that the U.S. has a lower suicide rate than that of the U.K.
Fitzgerald pointed out that the latter issue was raised during the extradition hearings when Fazel accepted that U.S. incarceration rates are six to seven times higher than that of the U.K., and therefore, the suicide rates “are not comparable.”Previously, the High Court had no response to the request from Assange’s legal team for a cross-appeal. They would like to challenge the legal arguments Baraitser accepted, which pose a threat to press freedom.Holroyde indicated the High Court would wait until after resolving the appeal from the U.S. before proceeding with any arguments from the cross-appeal.
*The following report was originally published as part of The Dissenter Newsletter, a project of Shadowproof.
NSA whistleblower Reality Winner was released from federal prison to a halfway house in San Antonio on June 2. She was released one week later to home confinement with her family.
Prior to her release from Federal Medical Center Carswell in Fort Worth, Texas, the facility confined Reality with five other women in a hospital-sized room for 23 days. Reality was informed it was a COVID-19 quarantine protocol.
Billie Winner-Davis, who is Reality’s mother, told The Dissenter that her daughter received both doses of the vaccine. She was past the two-week period necessary for the vaccine to become effective. Still, she was locked down with “very little contact with the outside world, no recreation, no commissary. You know, just contained to that one room for 23 days.”
All of the women in the room with Reality were on a release track, and according to Billie, she had no extra food. “They were only given the telephone every three to four days and only for like a fifteen minute period, and they all had to use it in that fifteen minute period. She wasn’t getting her mail.”
Meals were brought to the room, but for quite a few meals, the facility did not tailor her meal to meet dietary considerations that were well known to staff. Because Reality had no commissary access, she would go hungry.
“It was just another little period of hell for her, but at least she knew she could get through it because she knew she had to get through it in order to be released,” Billie declared. And, “There was no need for it.”
Reality Still Belongs To The Bureau of Prisons
Billie emphasized she still belongs to the Bureau of Prisons (BOP). “She still is in federal custody. She’s allowed to be at home on home confinement, but she is pretty much confined. She’s on an ankle monitor. She’s not allowed to leave the residence. She’s not allowed to talk to anyone as far as giving interviews.”
Reality pled guilty to one count of violating the Espionage Act when she disclosed an NSA report to The Intercept. She believed the report contained evidence of Russian hackers targeting United States voter registration systems during the 2016 election.
FBI agents raided Reality’s home in Augusta, Georgia, in June 2017, and when they interrogated her, they did not advise her of her rights before interrogating her.
Reality told agents, “I felt really hopeless, and seeing that information that has been contested back and forth, back and forth in the public domain for so long, trying to figure out, like, with everything else that keeps getting released and keeps getting leaked—Why isn’t this getting, why isn’t this out there? Why can’t this be public?”
On August 23, 2018, Reality was sentenced to five years and three months in federal prison.
Bobby Christine, the United States Attorney for the Southern District of Georgia, boasted that Reality’s sentence was the “longest received by a defendant for an unauthorized disclosure of national defense information to the media. It appropriately satisfies the need for both punishment and deterrence in light of the nature and seriousness of the offense.”
Reality contracted COVID-19 in prison in July 2020 and survived one of the most severe outbreaks that occurred in the U.S. prison system. At one point, more than 500 women tested positive for the virus. (The facility holds around 1,600 women.)
While incarcerated during the pandemic, Reality sought compassionate release, but the request was denied by Judge Randal Hall, the same federal judge who made sure she remained in jail until her sentencing.
The Eleventh Circuit Court of Appeals later rejected her request for compassionate release as well.
Finally Taking Reality Away From Carswell
According to her mother, February 17, 2020, was the last face-to-face visit in prison prior to her release. Her family relied on the free video chat available through the BOP in order to see Reality for the last 15 months.
Billie recalled picking Reality up at the entry point of the prison and what it was like to have her back in her arms, actually knowing she could put her in a car and take her away from Carswell.
Reality Winner after her release (Photo: Billie Winner-Davis)
For the first time in almost exactly four years, Reality was able to wear normal clothes.
Reality was a contractor for Pluribus International in Augusta and a cryptologic language analyst in the 94th Intelligence Squadron in the U.S. Air Force. Instead of viewing her service in the Air Force as meritorious, a federal appeals court interpreted it in the most negative way possible to justify keeping her in pretrial confinement.
“Evidence in the record indicates that Ms. Winner—who is fluent in Farsi, Dari, and Pashto—has long wanted to live and work in the Middle East,” the appeals court stated. “She wanted the Air Force to deploy her to Afghanistan. She researched traveling, working, and living in places like Kurdistan, Iraq, Afghanistan, Jordan, and the Palestinian territories. She researched flights to Kurdistan and Erbil. She researched buying a home in Jordan. And she researched how to obtain a work visa in Afghanistan.”
The mosaic the appeals court painted for the public made it seem like Reality was intent to join the Taliban in Afghanistan, even though she had been involved in helping the military kill “high value targets” who were considered terrorism suspects by the U.S. government. They even criminalized her desire to go to the Middle East to work for an aid organization confronting the refugee crisis fueled by U.S. wars in the region.
In January 2021, Reality alleged that a guard threatened her after she filed a sexual abuse claim under the Prison Rape Elimination Act (PREA).
Reality Earned This Release
BThe BOP expects Reality to obtain employment, but Billie said they are not sure about the programs or what is expected of Reality right now. “It’s too new because she’s still not allowed to leave the house.”
For comparison, John Kiriakou, a former CIA officer who was prosecuted under the Espionage Act and pled guilty to a separate but related charge, recalled his time in home confinement at the end of his 30-month sentence.
“I believed that I could step back into my life again and just pick up where I left off, and that wasn’t the case at all. It turned out to be far more stressful than I thought it was going to be. And it took me quite a long time before I felt like I was leading a normal life again,” Kiriakou shared.
Home confinement was “more difficult on a day-to-day basis than being in prison, and it’s because in prison you can go work out. You can go do laps in the yard. You can sorta get out and about in the sunshine,” Kiriakou added. “When you are in home confinement, you are a prisoner within the four walls of the house, and if you want to leave, you can’t unless it’s to go to work, to a job interview, to the doctor, to the halfway house, or to church. And you’ve got to constantly ask permission.”
The BOP makes prisoners fill out forms and constantly apply for jobs. Case managers, according to Kiriakou, demand to know when prisoners applied, how prisoners applied, and whether prisoners applied in person or online, etc. However, it is a “fake exercise.” Prisoners apply for jobs at Target, McDonald’s, or Safeway and never hear back.
Kiriakou was hired by a progressive think tank to work on prison reform, but the BOP rejected this as valid employment. So whatever Reality does for work has to be approved by BOP. They are likely to limit her options to a menial job for a minimum wage.
Support for Reality’s pardon campaign increased with President Joe Biden’s election. For the first time, her mother—and later, her sister—were invited on MSNBC to discuss her case and urge Biden to grant her clemency.
Reality’s case inspired the play, “Is This A Room,” which was directed by Tina Satter and based on the transcript from the FBI’s interrogation. It also was the subject of a documentary by director Sonia Kennebeck, “The United States vs. Reality Winner,” which premiered at SXSW in March.
Throughout extraordinarily tough circumstances, Billie has been Reality’s fiercest and most effective advocate.
“Her release date from the BOP is November 23, and up until that date, every single day she’s in jeopardy of them taking her back,” Billie declared.
“Following November 23, she still has three years of supervised release and so I still want to continue to ask for clemency because I want her sentence to be over. I want them to say, you’re done. You have served your time. You’re done. I feel like she deserves that.”
Despite all the work Billie did advocating for her daughter’s release, she does not believe this was some kind of victory.
“I don’t feel like we were able to achieve this for her because she did all of her time. She earned this release. Nobody gave this to her. She earned it,” Billie concluded.
After 11 days of relentless bombing that killed at least 248 Palestinians, including 66 children, there is a ceasefire in the Gaza Strip.
To Asma Alkhaldi, a 24-year-old communications professional in Gaza City with a B.A. in architectural engineering, the “ceasefire”—such as it is—is welcome, but the trauma of days of bombing remains.
“I don’t feel well, actually, right now, and I don’t know how long it will take me to get back to normal,” Alkhaldi told me on Friday. “I don’t know.”
“I’m trying to avoid seeing the news or reading people’s stories because I’m on the verge of collapsing and crying,” she added.
“Palestine is under occupation and Gaza is part of that equation”
Palestine’s commitment to the ceasefire has already withstood significant provocations from Israel’s military and police forces. Israeli police are rounding up and imprisoning Palestinians and Israeli Arabs and, in a provocative move, escorted Jewish settlers into Al Aqsa Mosque.
In Gaza, the siege continues.
“I have never been anywhere else to do the comparison, but what I can say or tell you, it is a real big open prison,” said Alkhaldi, who has only left Gaza to travel to the occupied West Bank.
After the Israeli withdrawal from Gaza in 2006, Palestinians in the narrow, 25-mile-long territory were penned in. Conditions have only gotten worse as Israel has locked down the territory from the land and sea in what’s effectively a siege. To the south, Egypt also maintains a blockade.
Asma Alkhaldi. Courtesy Asma Alkhaldi
“We got used to what we are having to deal with, such as power outages or the siege or frequent bombing and very high unemployment, trade and all of these like problems, it doesn’t mean they are right or we don’t suffer from them,” said Alkhaldi. “We do suffer for them. But we don’t have any other option to change that or to have a decent life.”
Alkhaldi said she’s unsure of how the economy, already in a very serious crisis, will come back—and what this year’s elections will look like. The war set everything back. Nonetheless, she was heartened by the support from around the world during the most recent attacks and urged people outside of Palestine to continue to pay attention to the occupation. She also urged people to not separate the struggles of Gaza from the struggles of Palestine as a whole.
“Palestine is under occupation and Gaza is part of that equation; Gaza is not separated from that,” said Alkhaldi. “I want people to know that and to act accordingly.”
“It’s a constant state of fear”
Gaza City artist Malak Mattar, who has lived through four wars in her 21 years, told me on May 15 that the relentless bombing, violence, and fear from Israel’s 15-year-long siege on Gaza has left her with severe PTSD.
“It’s a constant state of fear,” Mattar told me. “I fear for my life even when there is no war.”
Uncertainty and fear pervade every aspect of life in the territory. Even the most mundane tasks are affected.
Before this month’s war, Alkhaldi had considered buying a car—an investment that would have allowed her to travel more easily around the territory. But the bombings and destruction put an end to that dream for now, she said.
“It would literally be gone by now, it would be destroyed or bombed,” she said.
And the trauma goes further than just the immediate day-to-day of life in the territory. It affects plans for the future. Alkhaldi told me that the continuing siege, the unpredictability of life in Gaza, and the constant fear of war are keeping her from starting a family.
“Even if I want a family or to create a family here, I am so terrified to do that,” Alkhaldi said.
The people of Gaza are beginning to pick up the pieces from the latest round of bombing. For Alkhaldi, the thought of doing it again is exhausting.
“I don’t know how long it will take me to recover and rebuild,” she said.
Former UK diplomat-turned whistleblower Craig Murray was sentenced to eight years in prison at the High Court in Edinburgh for contempt of court resulting from his coverage of the trial of former Scottish First Minister Alex Salmond.
A three-judge panel determined on March 25, 2021—following a two-hour trial in January—that information published by Murray in a number of his blog posts was likely to lead indirectly to people being able to identify witnesses in Salmond’s sexual assault trial.
This process, known as “jigsaw identification,” refers to the possibility that a person may piece together information from various sources to arrive at the identification of a protected witness.
In doing so, the judge ruled that Murray violated a court order prohibiting the publication of information that could likely lead to the identification of the alleged victims in Salmond’s case.
Murray is a broadcaster, human rights advocate and journalist, who has extensively covered the prosecution of WikiLeaks founder Julian Assange and is known to support other whistleblowers. He also strongly supported Salmond and the Scottish campaign for independence.
He denied the charges, arguing he went to great pains to cover the prosecution without identifying the witnesses.
The trial and eight-month prison sentence was heavily criticized by a number of veteran Scottish journalists and lawyers.
Hugh Kerr, a former vice chair of the National Union of Journalists who was once a Labour Party Member of the European Parliament before he joined the SNP, told The Dissenter that he considered both the verdict and the sentence in Murray’s case to be “disgraceful.”
“[This decision represents] a real threat to civil liberties,” Kerr argued.
“A key point, of course, the women who are meant to be threatened with jigsaw ID all remained anonymous, Alex Salmond’s life was destroyed, and Craig Murray’s life is about to be destroyed too.”
“I know that Craig shall appeal not only to the Supreme Court but also to the European Court of Human Rights. He will do so with the support of many people in Scotland and many people around the world,” Kerr added.
“It is believed to be the first instance in Scottish legal history where ‘jigsaw identification’ has led to an individual being imprisoned,” a statement released on behalf of Murray’s family declared.
Award-winning investigative journalist John Pilger said, “In these dark times, Craig Murray’s truth-telling is a beacon. He is owed our debt of gratitude, not the travesty of a prison sentence which, like the prosecution of Julian Assange, is a universal warning.”
“Craig Murray has compiled a remarkable record of courage and integrity in exposing crimes of state and working to bring them to an end,” Professor Noam Chomsky stated, contending Murray “fully merits our deep respect and support for his achievements.”
Court Felt It Had No Choice But To Imprison Murray
“A significant fine is how this court normally deals with media contempt, even those that actually interfere with the course of justice,” Roddy Dunlop QC, Murray’s lawyer, told the High Court on May 7. “To rule otherwise, in this case, would be harsh to the point of being disproportionate.”
In mitigation, Dunlop informed the court that Murray is 62 years old, the father to a newborn child, and suffers from pulmonary health conditions, which will worsen if incarcerated. There was also no risk of repeating the crime and Murray’s intent was never to violate the anonymity order.
Murray’s legal team highlighted sentences handed down in other cases, such as the English contempt of court case against Stephen Yaxley-Lennon (aka Tommy Robinson), the far-right co-founder of the English Defense League.
In 2017, Yaxley-Lennon filmed and published a video online of criminal defendants on trial for rape, in which he described them as “Muslim child rapists”. He was given a three-month suspended sentence for contempt of court that was conditioned on him not prejudicing any other pending trials.
One year later, Yaxley-Lennon published another video in explicit defiance of a reporting ban regarding three related sex-assault cases. He was ultimately sentenced to 9 months in prison.
‘At The More Serious End Of the Scale’
Murray’s case is “at the more serious end of the scale,” Judge Lady Leeona J Dorrian said on 11 May, when addressing the other cases raised by the defense.
Dorrian, who also presided over Salmond’s trial, headed the panel of senior Scottish judges that heard Murray’s contempt of court case.
In reading out the court’s sentence, Dorrian said that Murray’s actions created “a real risk that complainers [in sex offense cases] may be reluctant to come forward in future cases, particularly where the case may be high profile or likely to attract significant publicity.”
The publication of jigsaw identification strikes “at the heart of the fair administration of justice,” and therefore “notwithstanding the previous good character of [Murray] and his health issues, we do not think we can dispose of this case other than by way of a sentence of imprisonment,” Dorrian added.
As part of his defense, Murray submitted examples of mainstream outlets which he argued published even more “jigsaw identification.” In effect, an argument of selective prosecution could be inferred.
But the judges in Murray’s case considered that to be “irrelevant to whether what [Murray] published constituted a contempt of court.”
A Politically Motivated Stitch-Up
Murray was critical of the prosecution of Salmond which he described as a politically motivated stitch-up, a fact which appears to have irked the judges in his case.
“As with many of the articles with which these proceedings are concerned, the respondent does not merely identify information, put the material before the public, and ask questions arising from it. He acts as arbiter, presenting the matter on the basis that his belief, opinions and interpretation of the information, assuming that is the right word to use, is “the full truth,”” the judges noted in their opinion [PDF] on March 25.
For his part, Murray contends the charges against him are politically motivated as a result of his support for Salmond.
Salmond was acquitted by a jury on all 14 counts of sexual harassment and assault brought against him. However, that fact was considered irrelevant by the court when deciding the contempt of court case against Murray.
Before Salmond was tried in March 2020, evidence had already emerged of a potential conspiracy against the former leader of the Scottish National Party (SNP).
Emails and text messages between members of the Scottish civil service, the SNP bureaucracy, and some of Salmond’s alleged victims revealed an apparent conspiracy to destroy Salmond’s political career and reputation.
A number of legal and journalistic observers, such as Scottish lawyer Gordon Dangerfield, Scotland’s former Justice Minister Kenny MacAskill MP, and Murray himself called attention to this evidence.
The High Court of Scotland, which reviewed the investigation and handling of Salmond’s case, determined that the process was “unlawful”, “procedurally unfair” and “tainted by apparent bias,” a year before the trial commenced.
Salmond, along with Murray, is known to be a fierce proponent of Scottish independence and his prosecution comes at a time of splits within the SNP about the direction of the party and how the matter of independence is being approached by the current leadership of First Minister Nicola Sturgeon.
A number of well-known Scots joined with Salmond to form the pro-independence Alba Party in February 2021. However, the overall politicized nature of Salmond’s case did not feature in Murray’s contempt of court trial.
Murray’s Intentions And Motives Deemed Irrelevant
The contempt of court offense is one of “strict liability,” which means Murray’s intentions or motivations were deemed irrelevant by the court.
“The question which must be asked is whether in its context the material was such as was likely, objectively speaking, to lead to identification of the complainers,” the court determined.
Also of significance was the court’s decision to apply a wide test when deciding whether Murray committed contempt of court. Though the defense argued that the threshold should be whether “the public at large” was likely to be able to piece together the identification of a protected witness, the court disagreed.
“If the material would be likely to enable a particular section of the public to do so that would be sufficient.”
In other words, if someone who knows the complainants in Salmond’s case is likely to be able to piece together their identity from a combination of Murray’s articles along with their own specific knowledge – that is enough for Murray to have violated the court order.
Two other charges—one alleging that Murray violated a court order barring the reasons given for the dismissal of a juror and the other alleging that two articles he published created a substantial risk of prejudicing the jury—were both dismissed by the court.
According to Kerr, Dorrian, who presided over both Salmond’s trial and Murray’s contempt of court proceedings, “has led the campaign to get rid of juries in the cases of sex offenses in Scotland.”
The Scottish government has been looking into specialized legal proceedings in sex offense cases, whereby complainants might be able to give evidence via video link as a matter of course and where judges would give the final verdict as to guilt or innocence.
Kerr considered this to be a “very worrying” development, which would have deprived Salmond of a jury and likely resulted in a conviction.
Appealing To The Supreme Court
Although the court originally gave Murray 48 hours to surrender himself to authorities, they extended that to three weeks after Dunlop requested more time so an appeal to the Supreme Court could be lodged.
The decision means that Murray will not be able to attend in person as a witness in the ongoing Spanish criminal case where of David Morales, the latter of which is being prosecuted for his role in the alleged illegal surveillance of Julian Assange, his lawyers, and their privileged communications.
In a twist of irony, Dunlop, who is Scotland’s most senior lawyer – known as Dean of the Faculty of Advocates, was among the attorneys representing the Scottish government when Salmond successfully sued them in the High Court. Dunlop and one of his colleagues, threatened to resign if their client, the Scottish executive, didn’t concede the lawsuit, once it became apparent that they withheld evidence that they were obligated to disclose to Salmond’s lawyers.
“We have a very serious problem in Scotland at present”, veteran journalist Mark Hirst told The Dissenter.
In Hirst’s view, the Crown Office is “an institutionally corrupt prosecuting authority” which is “abusing their power and acting in an evidently biased and political manner.”
Hirst, a longstanding friend of Murray, said he knows through his own discussions “with senior lawyers and serving police officers that there is concern the Crown Office are bringing the entire legal system in Scotland into utter disrepute.”
“Major reform is needed or we will see other journalists and political activists falling victim to malicious proceedings,” Hirst concluded.
Credit Suisse, a financial services firm headquartered in Switzerland, violated the terms of a 2014 plea agreement, but the Justice Department under Presidents Barack Obama and Donald Trump declined to punish the investment bank.
Former Credit Suisse bankers blew the whistle on the firm’s use of sham companies, foundations, and trusts to evade tax authorities in the United States. As Bloomberg noted, in May 2014, when the bank pled guilty, it “did not tell the Justice Department about a $200 million account held by an American client” named Dan Horsky.
Whistleblowers revealed the account to U.S. investigators two months later, and they have demanded that the government impose an additional punishment beyond the $1.3 billion penalty that was paid around seven years ago.
Senator Ron Wyden, a Democrat from Oregon, wrote a letter to Attorney General Merrick Garland and Credit Suisse requesting more information, given the likelihood that the firm’s executives made false or deceitful statements to a Homeland Security and Governmental Affairs Senate subcommittee in February 2014.
To better understand the “circumstances surrounding the disclosure of Mr. Horsky’s hidden offshore assets to the U.S. government,” Wyden asked [PDF] Credit Suisse when it first disclosed the accounts to the Justice Department, Internal Revenue Service (IRS), or any other U.S. agency.
Wyden also asked if the accounts were not reported to the U.S. government before July 2014, when a whistleblower claimed Credit Suisse was still managing tax-dodging accounts, why weren’t they disclosed.
Furthermore, Wyden sought information on the number of accounts held by U.S. clients that Credit Suisse has determined to be in “non-compliance” with the plea agreement.
“In 2016, Mr. Horsky pled guilty to conspiring to defraud the United States and to submitting false documents to the IRS, and in 2017 he was sentenced to seven months in prison. Mr. Horsky’s sentence was based, in part, on a filing by the DOJ that detailed how employees of Credit Suisse (identified in the filing as ‘International Bank’) helped Mr. Horsky go ‘deep into the shadows to conceal his ownership of his foreign financial accounts from U.S. authorities,’” according to Wyden.
At least one whistleblower reportedly informed the Justice Department of Horsky’s undisclosed assets in July 2014 and alleged that the bank continued to conceal his assets and other U.S. accounts, even after they pled guilty to crimes.
Wyden’s letter requested [PDF] a briefing with Justice Department officials by May 11 on the actions, or lack of action, taken by officials.
The New York Times described Horsky as a “retired business professor who lived in Rochester, N.Y., and amassed much of his fortune by investing in start-up companies in the 1990s.”
“In September 2014, when Credit Suisse appeared in court to plead guilty, the judge asked both the bank and prosecutors whether they had any information that would affect the settlement agreement. Both sides said no,” the Times recalled.
Credit Suisse’s scheme to dodge taxes involved placing Horsky’s funds under a relative’s name, who lived overseas. The bank’s Israel desk managed his wealth.
At any time, the Justice Department could have brought new whistleblower claims to the attention of the federal court that was involved in overseeing the plea agreement. Prosecutors never bothered to enforce the agreement, despite evidence of clear violations.
In this edition of “Dissenter Weekly,” host and Shadowproof editor Kevin Gosztola covers a British oil industry whistleblower in Croatia who was taken by police to a psychiatric hospital against his will.
He highlights an exceptional report from Julia Carrie Wong at the Guardian that profiled Facebook whistleblower Sophie Zhang and amplified her revelations related to Facebook’s inaction when suspicious accounts in Honduras, Azerbaijan, Ecuador, etc, were brought to the attention of executives.
Later in the show, Kevin talks about two stories involving police in Washington, D.C., and Honolulu. He concludes with an update on a U.S. Geological Survey whistleblower who was restored to their position at the Seattle-based Western Fisheries Research Center.
This show is brought to you by Shadowproof.com, a 100% reader-funded press organization. If you enjoy our work, you can support us with a donation or by subscribing for $5/month or more: https://shadowproof.com/donate
WikiLeaks founder Julian Assange has been detained at the high-security Belmarsh prison in London for two years.
During that time, Assange became the first publisher to be indicted under the United States Espionage Act and prevailed after a district judge denied the U.S. government’s extradition request. He completed a sentence for “jumping bail” when he sought asylum from Ecuador. He also survived multiple COVID-19 outbreaks in prison.
“It’s long past time for this injustice to end, and we continue to appeal to the United States and the Department of Justice to drop the appeal and all the charges against Julian. This gross injustice must come to an end,” WikiLeaks editor-in-chief Kristinn Hrafnsson declared.
Stella Moris, Assange’s partner, acknowledged the protests and solidarity actions that are planned throughout the world.
Mobilizations were planned for April 11 in Los Angeles, New York, Washington, D.C., Denver, Chicago, Raleigh, San Jose, Seattle, Tulsa, Toronto, London, Glasgow, Düsseldorf, Frankfurt, Mexico City, Melbourne, Perth, Auckland, and Wellington.
Several actions will take place over the course of the week in cities like Boston, Berlin, Brussels, Dresden, Vienna, and Hamburg.
“Anniversaries are a platform to educate, nurture compassion and solidarity, and bring like-minded people onboard,” Moris stated.
The U.S. Justice Department dramatically escalated the political prosecution against Assange on April 11, 2019, when it unsealed a single charge indictment against the WikiLeaks founder. Ecuador allowed British police to enter their London embassy and drag him to a van.
While video posted showed a vulnerable person in distress, begging the United Kingdom and everyone around the world to resist this prosecution, many focused on his unkempt appearance—his long hair and shaggy beard—and mocked him.
Nils Melzer, the United Nations Special Rapporteur on Torture, shared, “During my visit, he explained to us that his shaving kit had been deliberately taken away three months earlier.”
This was all part of Ecuador President Lenin Moreno’s U.S.-backed pressure campaign to force Assange to leave the embassy.
In 2012, Assange was granted political asylum, when Rafael Correa was president of Ecuador. Correa’s administration considered “legal evidence” that Assange would not receive a fair trial if extradited to the U.S. and endorsed Assange’s fears of due process violations and cruel and inhuman treatment if he was handed over to Sweden.
At Assange’s extradition trial in September, his defense team presented evidence of an espionage operation backed by U.S. intelligence that was carried out against him at the London embassy.
Undercover Global S.L., a Spanish security company, bugged the embassy and had a “real obsession” with spying on Assange’s legal team. Beyond that, U.C. Global Director David Morales talked about plots to kidnap Assange or even poison him, and the company ordered employees to steal diapers so they could figure out if he fathered a child.
In October 2019, a Spanish high court charged Morales with offenses “related to violating the privacy of the WikiLeaks founder and passing the information on to the United States’ intelligence services,” according to El Pais.
That case is still unfolding in Spain, however, the Justice Department has sought to obstruct proceedings by refusing cooperation unless whistleblowers from the company reveal their identities.
The unsealed indictment against Assange was initially limited to a “conspiracy to commit computer intrusion” offense under the Computer Fraud and Abuse Act and a general statute against any conspiracies to “defraud” the U.S. government, which prompted a number of Western pundits to erroneously insist prosecutors avoided a case that would implicate the First Amendment.
However, the indictment declared, “The WikiLeaks website publicly solicited submissions of classified, censored, and other restricted information. Assange, who did not possess a security clearance or need to know, was not authorized to receive classified information of the United States.”
The indictment relied upon language straight from the Espionage Act. Prosecutors explicitly singled out Assange as an “aider” and “abettor” of “espionage” for publishing unauthorized disclosures of classified information, even though reporters and editors at media organizations throughout the world routinely produce stories based upon sensitive documents without a U.S. security clearance.
A little over a month later, in May 2019, the U.S. Justice Department unsealed a superseding indictment with 17 charges under the Espionage Act. It dispelled any illusions journalists throughout the world may have had.
***
President Joe Biden, Secretary of State Antony Blinken, and Attorney General Merrick Garland now have the obligation, if they are serious about press freedom, to drop the charges that were issued under Trump by a Justice Department deeply politicized by Attorney General Bill Barr.
The Biden administration should recognize how much time has passed, including how long ago it was that Attorney General Eric Holder’s Justice Department examined the evidence against Assange and chose not to indict a publisher. (Biden was President Barack Obama’s vice president.)
Whether the Biden administration returns to a norm that existed under Obama, Stella Moris suggests that those opposed to the prosecution “remind people that the judge threw out the U.S. extradition request in January.”
“Remind them that Julian published information because he defends people’s right to know what the government does in their name. Remind them that he has done nothing wrong and to put him in prison is to criminalize journalism. Remind them that he has a family and that he is suffering,” Moris concluded.
Those who support freedom of the press may also recall the U.S. war crimes in Iraq that Assange helped to expose by publishing disclosures from Pfc. Chelsea Manning. They may recall diplomatic cables that revealed how the British government sought to limit an inquiry into the U.K.’s involvement in the Iraq War. They may recall the pressure European countries faced to not investigate CIA torture, and the extrajudicial assassinations by CIA and U.S. military forces in Pakistan, which became widely known. And they may recall how documents showed the CIA enlisted U.S. officials to spy on UN officials and foreign diplomats at the UN in New York.
Though the above represents only a sliver of the information published, it is some of the most compelling evidence that Assange was targeted for enabling scrutiny of a global superpower.
The U.S. government has appealed the January ruling by the British judge against extradition. Assange’s team has also appealed because his attorneys believe the judge issued a decision that was far too dangerous for the future of press freedom in the world.
The High Court of Justice will decide in the coming months whether to hear the appeal.
Meanwhile, in Ecuador, President Moreno’s right-wing, neoliberal, and U.S.-backed agenda has been entirely rejected. A runoff is taking place on the same day as the anniversary of Moreno’s flagrant violation of Assange’s human rights. It will likely result in a triumph for the left as Ecuadorians are widely expected to give Andrés Arauz a resounding victory at the polls.
In this edition of “Dissenter Weekly,” host and Shadowproof editor Kevin Gosztola highlights the turmoil at Google, which inspired a shareholder to demand the corporation adopt protections for whistleblowers.
Amazon is in the midst of thwarting workers at a plant in Bessemer, Alabama, from forming a union. Kevin covers a ruling by the National Labor Relations Board, which concluded two Amazon employees were illegally fired for their whistleblowing.
Later in the show, Kevin provides an update on the fallout from a scandal in Colorado involving the state’s air pollutions department, which falsified data to fast-track permits for companies. And we wish Pentagon Papers whistleblower Daniel Ellsberg, who turned 90 on April 7, a happy birthday.
This show is brought to you by Shadowproof.com, a 100% reader-funded press organization. If you enjoy our work, you can support us with a donation or by subscribing for $5/month or more: https://shadowproof.com/donate
When Hurricane Zeta hit the Gulf of Mexico in October 2020, the storm nearly resulted in another catastrophe similar to the Deepwater Horizon disaster.
A lawsuit [PDF]—one of several civil lawsuits—was filed by Christopher Pleasant, a former employee of Transocean and Triton Voyager Asset Leasing assigned to the Deepwater Asgard. He claims the corporations delayed disconnecting from a deepwater well until it was unsafe to “unlatch the vessel.”
The United States Bureau of Safety and Environmental Enforcement (BSEE) is supposed to regulate offshore drilling but declined to act. They also issued no public statements about the incident that could have had devastating consequences.
Jeff Ruch, the Pacific director of Public Employees for Environmental Responsibility (PEER), urged Interior Secretary Deb Haaland to “order an in-depth inquiry” into the Deepwater Asgard incident.
“This incident raises serious questions as to how effective our offshore drilling safety rules are and whether they are adequately enforced,” Ruch suggested.
As PEER noted in their press release, the Deepwater Asgard was drilling in the Green Canyon area “on the Gulf of Mexico continental slope.” On October 22, the crew “experienced a significant kick of hydrocarbon fluids up the well due to a failed cement job, similar to Deepwater Horizon’s Macondo well.”
The lawsuit was filed under maritime law and the Jones Act, which is supposed to offer crew members like him protection.
Hurricane Zeta hit the Gulf of Mexico on October 28. The day before Transocean and Beacon Offshore Energy allegedly instructed the crew to “stay latched and continue operations.”
“Plaintiff, along with other crew members on board, strongly disagreed with the decision to stay latched but had no other options but to obey orders,” the lawsuit claims.
In the morning on October 28, the captain of the Deepwater Asgard ordered the crew to unlatch the vessel “with no destination in mind.” But the former Transocean employee maintains the current was too fast and it was impossible to control the vessel.
“The vessel lost an engine and began taking on water in two of the thrusters. Engineers aboard the vessel had to rig tarps to stop the water from reaching the remaining thrusters so the captain could control the vessel.”
Tension rods were allegedly not operating properly because the corporations refused to stop production in May 2020, despite the fact that inspections in 2019 determined replacements were needed.
Eleven people were killed in the Deepwater Horizon disaster. It is estimated over 3 million barrels of oil gushed into the Gulf of Mexico.
Recalling this tragedy, Pleasant alleges the corporations failed to inspect, monitor, and repair equipment; failed to maintain a safe work environment; failed to provide an adequate crew; failed to maintain the vessel; and failed to maintain safe mechanisms for work and life on the vessel.
He contends Transocean, Triton, and Beacon issued orders that “directly placed the crew of the Deepwater Asgard in extreme danger.”
This gross negligence allegedly had such a physical and severe mental impact on Pleasant. He is no longer able to engage in any work offshore.
PEER requested that the inspector general’s office for the Interior Department investigate.
A complaint [PDF] the group submitted to the IG states, “There was significant damage to ship and drilling components, and extreme risk to the crew and to the [Gulf of Mexico] marine ecosystem from a potential wellhead blowout.”
The agency responsible for so-called offshore drilling safety “has not been transparent with the American public about this incident.”
Leanne Betasamosake Simpson is an acclaimed novelist, poet, scholar, and singer. She is also a member of the Michi Saagiig Nishnaabeg people, native to southern Ontario, Canada. She recently released her stunning new album “Theory Of Ice.”
One of the issues heavily dealt with on the album is climate change. For example, the opening track “Break Up” poignantly declares, “There is euphotic rising and falling / Orbits of dispossession and reattachment / Achieving maximum density: 39 degrees Fahrenheit.”
Another example is the tragically gorgeous “Failure Of Melting,” where she sings, “The caribou sit measuring emptiness/The fish study giving up.”
The highlight of the album is her powerful reworking of Willie Dunn’s “I Pity The Country”—a protest song previously featured at Shadowproof.
Dunn was a Canadian singer-songwriter, who like Simpson was of mixed Scottish and Indigenous ancestry. Dunn released four albums during the 1970s and 1980s, which are sadly out of print. (Thankfully a new compilation Creation Never Sleeps, Creation Never Dies: The Willie Dunn Anthologyhas recently been released. It is an excellent introduction to an overlooked but important artist.)
The tune touches upon the prominent album theme of climate change, and it expands upon other aspects of Canada’s troubled history of colonial oppression. Written in 1971, lyrics such as “The police they arrest me/Materialists detest me/Pollution it chokes me/Movies they joke me/Politicians exploit me/City life it jades me,” are sadly still relevant.
Even though the lyrics may have had Canada in mind, they could have easily applied to the United States and several other countries ravaged by colonialism.
One thing that stands out about the tune is that instead of hatred for the oppressors, pity is expressed instead. Exploitive politicians, greedy capitalists, and corrupt police officers are a wretched bunch. They are missing out because they fail to realize that there is a better way of living than a life that “thrives on hate.” Listen to Leanne Betasamosake Simpson’s cover of “I Pity The Country,” and for her full album, go to Bandcamp.
In this edition of “Dissenter Weekly,” host and Shadowproof editor Kevin Gosztola shares his reporting on drone whistleblower Daniel Hale, who was charged under the Espionage Act and pled guilty on March 31.
Although Hale was charged under President Donald Trump, the plea made Hale the first whistleblower prosecuted with the Espionage Act to be convicted by President Joe Biden’s Justice Department.
Kevin highlights a story from the Colorado Sun involving a whistleblower complaint submitted to the Environmental Protection Agency’s Inspector General. The complaint alleges the “air pollution division” in the state government falsified data to fast-track permits for companies and endangered the public health of Coloradoans.
We also spend some time on Amazon’s Twitter Army as well as demands from 260+ advocacy groups, led by the Government Accountability Project, to pass legislation to expand whistleblower protections.
Finally, the show concludes with an update on the global campaign to free WikiLeaks founder Julian Assange and the extradition case against him.
This show is brought to you by Shadowproof.com, a 100% reader-funded press organization. If you enjoy our work, you can support us with a donation or by subscribing for $5/month or more: https://shadowproof.com/donate
Daniel Hale, who blew the whistle on the United States government’s targeted assassination program that includes drones, pled guilty to transmitting and retaining “national defense information” in violation of the Espionage Act.
The guilty plea by Hale makes him the first whistleblower to be convicted under the Espionage Act during President Joe Biden’s administration.
A change of plea hearing was held on March 31 in the Eastern District of Virginia, around a week before Hale was scheduled to go to trial.
Judge Liam O’Grady permitted Hale to remain under supervision by a probation officer until sentencing on July 13.
Though Hale pled guilty, prosecutors from the Justice Department opposed canceling the trial altogether and refused to dismiss the four remaining charges. Hale’s attorney questioned why this would be allowed.
O’Grady seemed to recognize the four remaining charges criminalize much of the conduct already covered in Hale’s plea. Often this is referred to as charge stacking. Yet the judge permitted the government’s extraordinary and unusual request, leaving open the possibility of a trial if prosecutors are unhappy with sentencing.
Under President Barack Obama, CIA whistleblower John Kiriakou was targeted in the Eastern District of Virginia with an Espionage Act prosecution. He wound up pleading guilty to violating the Intelligence Identities Protection Act in order to ensure he only went to prison for 30 months.
“I’m disappointed that Daniel Hale’s case was continued in the Biden Justice Department,” Kiriakou shared after learning Hale changed his plea. “I had hopes that Biden’s Justice Department appointee would recognize the public service that Daniel Hale provided when he revealed illegality and abuse in the drone program.”
Since Hale is not permitted to offer a public interest defense, Kiriakou added,”That’s an injustice.”
“So I hope Judge O’Grady recognizes the good in what Daniel Hale has done and gives him the lightest possible sentence.”
Hale was part of the Joint Special Operations Task Force in 2012 and identified “targets” for kill and capture. From December 2013 to August 2014, he was a contractor at the National Geospatial-Intelligence Agency.
The U.S. government targeted Hale for prosecution after he disclosed documents in 2014 to Intercept founding editor Jeremy Scahill for his “Dirty Wars” project, which included a book and a film. The information he revealed also helped the Intercept publish the “Drone Papers.”
Hale appeared in the 2016 documentary “National Bird.” He wore a pin supporting U.S. Army whistleblower Chelsea Manning and followed CIA whistleblower Jeffrey Sterling’s prosecution. The FBI raided his home on August 8, 2014, while the film was in production.
He was charged in March 2019 with violating the Espionage Act and other related offenses, and in May, he was arrested.
It is unclear why the Justice Department took several years to charge Hale.
At the change of plea hearing, O’Grady did not believe Hale posed a flight risk, since he was present at the proceedings. But he was particularly concerned with Hale’s mental health and urged him to notify his probation officer if he felt like hurting himself.
Hale, who apparently survived a motorcycle accident recently, told the court he was living with supportive people, who for some time allowed him to share space and without paying rent. He is doing chores and cooking meals for his roommates while quarantining during the COVID-19 pandemic.
A list of documents in the superseding indictment against him points to what Hale allegedly exposed.
Prior to the “Drone Papers,” a report, “Watch Commander: Barack Obama’s Secret Terrorist System, by the Numbers” was published by Scahill and Ryan Devereaux. It exposed how “nearly half of the people on the U.S. government’s widely shared database of terrorist suspects are not connected to any known terrorist group.”
“More than 40 percent are described by the government as having ‘no recognized terrorist group affiliation,’” the journalists reported.
The report brought critical attention to an out-of-control watchlisting system.
In October 2015, “The Drone Papers” were published and revealed criteria for how the White House approved individuals for targeted assassinations and revealed “small footprint counterterrorism operations” that were launched in Somalia and Yemen.
TF 48-4, a special operations task force, was deployed to escalate wars in East Africa and the Arabian Peninsula. They were commanded from a center at Camp Lemonnier in Djibouti. They utilized a maritime drone platform and were supposed to hunt down members of al Qaida in the Arabian Peninsula (AQAP) and al Shabaab.
New details about British citizen Bilal el-Berjawi, “who was stripped of his citizenship before being killed in a U.S. drone strike in 2012,” were also made public.
As Kiriakou recalled, he felt an “odd sense of relief” after he pled guilty because the worst part—the unknown—was over.
“The worst part is laying in bed at night and thinking about spending the rest of your life in prison while knowing that you did the right thing,” Kiriakou said. “And so as odd as it might sound, changing a plea to guilty and finally knowing what your sentence is going to be can be oddly liberating.”
Yet Kiriakou knew he would receive 30 months when he pled guilty. Hale does not know how long he will be sentenced to prison, and he will face the additional fear and anxiety of knowing prosecutors may demand a trial for the remaining counts if the court does not approve a harsh enough sentence.
Hale blew the whistle on the powers that the Obama administration arrogated to itself to act as judge, jury, and executioner and transform the world into a battlefield without regard for human rights or international law. He has suffered through a cruel prosecution that was destined to end in a plea agreement because there is no whistleblower defense under the Espionage Act.
Unfortunately, this is a clear indication that the war on whistleblowers escalated under Obama and continued by Trump remains in full effect.
Hale is likely to receive a four or five-year prison sentence in July that will come with the added risk of potential exposure to COVID-19 if the Bureau of Prisons has not distributed enough vaccines to prisoners.
In this edition of “Dissenter Weekly,” host and Shadowproof editor Kevin Gosztola highlights the record number of workplace complaints that the Occupational Safety and Health Administration (OSHA) in the US Labor Department received in 2020 as a result of the COVID-19 pandemic.
He covers a whistleblower story involving an employee at Tesla, who faced retaliation when he raised concerns about solar power systems that were prone to catching fire. And he amplifies a horrific story involving abuse of children at a juvenile detention center in Pennsylvania, which was shut down as a result of whistleblowers and public defenders who raised their voices.
Finally, like most weeks, we conclude with an update on the global campaign to free WikiLeaks founder Julian Assange and the extradition case against him.
This show is brought to you by Shadowproof.com, a 100% reader-funded press organization. If you enjoy our work, you can support us with a donation or by subscribing for $5/month or more: https://shadowproof.com/donate
Evan Greer is an example of someone who uses their music as an extension of their activism. She is releasing her latest album “Spotify is Surveillance” on April 9, the follow-up to her excellent 2019 album “she/her/they/them”.
With regard to “Spotify is Surveillance,” Greer declared, “Big Tech companies’ business models are based in surveillance, and they’re fundamentally incompatible with basic human rights and democracy. Spotify likes to present itself as hip and progressive and friendly to artists, but its profit model is based on harvesting our data, monitoring emotions, and using our behavioral profiles to enrich advertisers.”
“The company recently filed a patent for a product that would literally monitor listeners’ speech patterns and tone of voice in order to recommend music (and of course, advertisements). Music should be about connection and collective experience, not surveillance and exploitation.”
Greer is the deputy director for Fight For the Future, a nonprofit that campaigns for digital and privacy rights and challenges internet censorship.
“The internet has the potential to profoundly transform our society for the better. As a trans artist playing way outside the mainstream, I’ve seen how technology has the power to lift up marginalized voices and foster community and solidarity amongst musicians, like we’ve seen with organizing efforts like the Union of Musicians and Allied Workers and their ‘Justice at Spotify’ campaign,” Greer stated. “But if we allow a parasitic business model based on surveillance and manipulation to dominate the music industry, it’s clear that this will serve to simply reinforce and exacerbate existing forms of injustice in an industry that has long been plagued by systemic white supremacy, patriarchy, and heterosexism.”
“I titled the album ‘Spotify Is Surveillance’ not because every single song is a diatribe about surveillance capitalism or current politics but because it’s a way to raise these issues every time someone clicks play, even if it’s just on a love song or a song about missing shows,” Greer added.
The second single off the album, “The Tyranny of Either/Or,” is a fist-pumping anthem for “trans and gender nonconforming people,” who are still under attack despite it being more than 50 years since Stonewall.
“We still face systemic violence and discrimination, and we still have to struggle just to have our basic humanity recognized,” Greer asserted. “Not just by the public at large, but even within the mainstream LGBTQ rights movement, which has consistently failed to fight for the most marginalized members of our community, especially Black and brown trans women, sex workers, incarcerated people, and unhoused youth.”
Greer said “Tyranny of Either/Or” is a song that she “needed as a young trans person navigating the world. It’s about reconnecting with our collective history of resistance and self-determination, and celebrating all of the bullshit that trans people have overcome, while recognizing how much further we still have to go. And it’s a punk rock open letter to transphobes of all varieties to just piss off and let us live our lives in peace.”
The rousing tune appropriately begins with a poignant audio clip of gay liberation activist Sylvia Rivera, who jumps on the stage at the 1973 Christopher Street Liberation Day rally and reprimands mainstream gay activists for ignoring the oppression of transgender people. She defiantly shouts outs, “Y’all better quiet down,” over a jeering crowd.
“We just want to be ourselves,” and, “We just want to live our lives” are lyrics that convey this empowering message.
As another example of how Greer uses her music as a platform for her activism, all proceeds from Bandcamp downloads will be donated to the Marsha P. Johnson Institute. The organization carries on the legacy of Johnson, who was a “prominent figure in the Stonewall uprising.” It nourishes and supports Black trans people who are “resisting, grappling with survival, and looking for community.”
Steven Henkes was a field quality manager for SolarCity, which was acquired by Tesla in August 2017. He learned “thousands of residential and commercial systems” installed were “defective and dangerous” and could start fires. But according to his whistleblower complaint, Tesla ignored his concerns, mounted an “orchestrated campaign of retaliation,” and fired him.
The complaint was filed in Alameda County, California, in November 2020. He also submitted a complaint with the United States Consumer Protections Safety Commission (CPSC) in April 2019.
CNBC reported on March 22 that CPSC will investigate the allegations from Henkes and interviewed him for the investigation.
Henkes provided evidence that included “failure analysis reports from a third-party engineering firm,” “internal meeting minutes, reports, and emails,” “customer notification examples,” “photos of thermal events [fires] linked to customer houses,” and “meeting minutes and presentations pertaining to a supplier named Amphenol and Tesla.”
After Walmart sued Tesla in New York state court in August 2019, it became widely known that SolarCity’s solar power systems had defects. However, prior to Walmart’s suit, Henkes claims he “forcefully advocated for the health and safety of Tesla’s customers” in his role as a field quality manager.
Henkes’ job was to ensure Tesla promptly and safely reported, notified, and shut down any solar systems that were using Amphenol H4 Connectors—the part responsible for fire risks. He insists he recommended Tesla inform all customers immediately of the risks posed by continuing to use the “defective solar systems.”
Tesla had at least 60,000 residential customers in addition to 500 government and commercial accounts.
The complaint filed [PDF] in Alameda County states, “Henkes’ belief that the public was not adequately notified and protected was borne out by the many fires nationwide across Tesla’s customer base. [He] was quite outspoken about his desire to protect public health and openly shared his concerns with many Tesla employees.”
Tesla’s alleged campaign of retaliation included “pulling him as a presenter” two hours before a tactical campaign team meeting for Walmart. His proposed presentation was altered to “eliminate the previously identified tooling defects (thus not disclosing said defects to Walmart).”
Furthermore, Henkes contends he was excluded from staff meetings, admonished for traveling overseas to develop tools that could “prevent future fires,” and purchase orders for new “installation tooling and standardization” were overwritten.
On August 3, 2020, Henkes was terminated. This occurred about one month after he complained to Tesla’s Supply Chain, Reliability, and Human Resources Department.
He complained that the “flat roof racking components that Tesla was installing were not safe and that the modifications must be tested prior to re-installation.”
CNBC spoke with another former Tesla solar employee for their report, who helped them corroborate “many of Henkes’ claims.” The employee said Tesla’s solar systems still pose fire risks.
“Tesla’s remediation or modification efforts have not been transparent or effective,” said the former Tesla solar employee. They indicated Tesla had outsourced remediation and maintenance for the “aging solar fleet.”
Henkes believes Tesla violated the Sarbanes-Oxley Act and filed a complaint with the Securities and Exchange Commission (SEC) in May 2019.
Sarbanes-Oxley is a law that was passed after the scandalous acts of Enron, Tyco, and Worldcom to protect against fraudulent behavior by corporations. It included a provision to protect whistleblowers who provide information to the SEC or other covered federal regulatory agencies.
As of March 11, Henkes was fighting Tesla’s effort to force arbitration, which is often more private than a trial. An arbitrator’s decision typically cannot be appealed.
In this edition of “Dissenter Weekly,” host and Shadowproof editor Kevin Gosztola cover a development involving a whistleblower with the Bureau of Land Management, who is being forced out of the agency with a rule adopted under President Donald Trump that was supposed to be revoked.
Walter Loewen, an environmental analyst, reportedly raised concerns about the devastating impact a Wyoming oil and gas project, would have on birds and other wildlife.
Later, Kevin highlights whistleblowing against Shell’s Falcon pipeline in Pennsylvania and celebrates the whistleblowing of Allan McDonald, who helped expose what happened in the Challenger shuttle disaster in 1986. McDonald died on March 6.
We conclude with an update on the global campaign to free WikiLeaks founder Julian Assange and an overtime discussion with Shadowproof publishing editor Brian Sonenstein on two ridiculous police proposals in Chicago and New York.
This show is brought to you by Shadowproof.com, a 100% reader-funded press organization. If you enjoy our work, you can support us with a donation or by subscribing for $5/month or more: https://shadowproof.com/donate
The United States Supreme Court ruled on March 4 that federal government agencies may invoke the “deliberative process privilege” to conceal documents from release under the Freedom of Information Act. It was widely viewed as a setback for government transparency.
Sierra Club sued the Fish and Wildlife Service for “biological opinions” in which they found a rule proposed by the Environmental Protection Agency (EPA) “for the intake of cooling water from power plants and industrial facilities would impermissibly affect threatened and endangered species.”
As Brett Hartle, the government affairs director at the Center for Biological Diversity, stated, “This decision will make it easier for political appointees to meddle secretly in scientific decisions, gut protections for our air and water, and push more of our wildlife toward extinction.” He demanded Congress take immediate steps to end this so-called privilege that favors the influence of corporations and special interests over government.
The decision by the Supreme Court is the latest example of the erosion in government openness over the past 10-to-15 years. Although Presidents Donald Trump and Barack Obama both claimed to lead the “most transparent” administrations ever, they did not leave legacies of transparency.
Trump’s administration set new lows for the censoring and withholding government documents from journalists and citizens who request records under the Freedom of Information Act (FOIA). Media organizations filed more FOIA lawsuits under Trump than the combined presidencies of Obama and George W. Bush.
Agency backlogs increased substantially in 2020, partly because of the COVID-19 pandemic.
Yet, as the Associated Press reported, Obama censored and withheld a record number of files from requesters, and even spent $36 million in lawsuits against requests in his final year in office.
There is minimal interest in Congress in approaching this as a pressing problem. Though President Joe Biden’s administration shows a modest interest in restoring government transparency, a wide coalition of activists, journalists, civil liberties, human rights, press freedom, and other nonprofit organizations demand stronger action.
Sunshine Week (March 14-20) is an opportunity to take stock of the state of FOIA in the United States and renew the push among journalists, transparency advocates, and press freedom and various civil society organizations for meaningful changes to address a system in crisis.
The Trump Administration’s Atrocious FOIA Legacy
At the Federalist Society’s National Lawyers Convention in 2019, Attorney General Bill Barr attacked the Freedom of Information Act, a law passed in the United States over fifty years ago to ensure public access to government records.
“There is no FOIA for Congress or the Courts,” Barr complained. “Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process.”
“That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people,” Barr added.
Well before the pandemic, during 2018’s Sunshine Week, the Associated Press reported, “The federal government censored, withheld or said it couldn’t find records sought by citizens, journalists and others more often [in 2017]”—Trump’s first year in office—”than at any point in the past decade.”
The AP also found that around 78 percent of requesters received censored files or no records at all, and the Trump administration spent $40.6 million to defend decisions to withhold federal files in court.
The number of times the federal government insisted it would be illegal under U.S. laws to release requested material “nearly doubled to 63,749.” Such claims, the AP noted, can range from officials maintaining the release of information that would jeopardize national security, reveal trade secrets, or expose private identifying information. (Each claim can be abused to conveniently shield records that are in the public interest from disclosure.)
“Under the records law, citizens and foreigners can compel the U.S. government to turn over copies of federal records for no or little cost,” but the AP pointed to a “disturbing trend,” where the government reversed itself when challenged for improperly withholding files in “more than one-in-three cases.”
Trump withheld tax returns, fought the release of White House visitor logs, “returned” a Senate torture report to Congress to ensure it stayed secret, revoked a reporting rule for U.S. drone strikes, and broke a pledge by disclosing only some of the remaining records on President John F. Kennedy’s assassination.
When it came to the EPA, Interior Department, and other agencies that oversee policies related to the environment and human health, the secrecy abuses of the Trump administration were particularly hazardous.
As a letter to members of Congress from a coalition of environmental organizations pointed out, delays occurred to shield EPA Administrators Scott Pruitt and Andrew Wheeler. Both had ties to the fossil fuel industry, and only on July 8, 2018—after Pruitt resigned due to “career-ending scandals”—did the EPA agree to search for records from Pruitt’s personal email accounts. (Notably, many of the scandals occurred as a result of information gleaned from other FOIA requests.)
“The Center for Biological Diversity requested records generated in connection with meetings and discussions between EPA and CropLife America, an industry trade group that represents and advocates on behalf of pesticide manufacturers, formulators, and distributors,” according to the letter. “EPA effectively delayed producing the requested records that would reveal improper influence by industry groups,” and only released them in November after Trump lost the election.
More than 125 regulations aimed at protecting air, water, and land were weakened or entirely wiped out while Trump was president, the Washington Post reported. Disregarding or frustrating FOIA requests helped Trump officials conceal the influence toxic industries had over them.
According to the American Civil Liberties Union (ACLU), the Trump administration secretly loosened the rules of engagement for U.S. drone strikes and weakened “safeguards” intended to prevent civilian deaths. The ACLU submitted a FOIA request in October 2017 and was denied a copy of the new rules.
The civil liberties organization sued the Trump administration and won in federal court on September 29, 2020, but they still do not have a copy of the rules.
Obama Was Not Much Better On Government Transparency
To some degree, Trump’s FOIA record represented a continuation of secrecy that defined President Barack Obama’s administration.
In 2015, the last year of Obama’s presidency, “More than three-quarters of requesters received censored files or nothing at all,” the Associated Press reported. It was an “unprecedented development” and not much lower than the rate of censorship under Trump.
The Obama administration spent $36.2 million in 2016 to fight FOIA requests in court (Trump spent $40.6 million). And like the Trump administration, in more than one-third of cases, the government acknowledged it was wrong to deny the release of records when challenged.
Journalist Jason Leopold, who is well-known for his FOIA journalism, and the Freedom of the Press Foundation exposed how the Obama administration collaborated with the Justice Department to kill the FOIA Oversight and Implementation Act of 2014.
“The Justice Department, speaking on behalf of the administration, opposed codifying into law Obama’s presidential memorandum in which he instructed agencies to act with the ‘presumption of openness.’ To see the administration memorialize its position in documents was shocking,” Leopold declared.
Obama officials even opposed “the creation of an online FOIA portal” to help the process for fulfilling requests become more efficient.
The White House maintained the legislation would somehow “increase the FOIA backlog, result in astronomical costs, and cause unforeseen problems with processing requests.”
Anne Weismann, who was the executive director of the Campaign for Accountability and involved in efforts to reform FOIA, called this notion “ludicrous.”
“The breadth of their objections and lack of evidence to back up their claims and their absolute opposition to codifying Obama’s memo expose the lie that is the administration’s policy,” Weismann added.
A version of the reform bill was finally passed into law in July 2016, as senators and representatives marked the law’s 50th anniversary.
Before the ACLU challenged the Trump administration for records on the administration’s legal and factual basis for U.S. drone strikes, the ACLU fought the Obama administration for similar records.
The CIA tried to pretend their “targeted killing” program did not exist, but in a FOIA lawsuit, a federal appeals court ruled the CIA could not “deny its interest in the program.”
Still, the ACLU lost their lawsuit in 2016. The organization was unable to pry loose files, which would show “when, where, and against whom drone strikes can be authorized,” and why officials believe such strikes comply with international law.
The Center for Constitutional Rights sought the disclosure of video and photos of Guantanamo Bay prisoner Mohammed al Qahtani so attorneys for Qahtani could publicly confirm whether he was tortured. Separately, 16 U.S. media outlets asked a federal court to order the release of videos showing Abu Wa’el Dhiab, a Guantanamo Bay prisoner who was force-fed while on hunger strike.
In both cases, the Obama administration succeeded in preventing the disclosure of videos that would have likely exposed torture or abuse.
Yet, perhaps the most notorious act of secrecy involved instructions to government lawyers to oppose the release of photos of detainee abuse and torture in Iraq. Obama argued the release of photos would have a “chilling effect” on investigations into detainee abuse, an absurd suggestion since his administration did not attempt to prosecute anyone for torture.
After a federal court determined the Obama administration had not properly justified keeping each photo secret, officials turned around and claimed the Islamic State of Iraq and Syria required the “re-classification” of nearly two thousand photos. Only 200 indistinguishable photos of detainee abuse, like close-ups showing cuts, bruises, swelling, etc, saw the light of day.
Officials in the Obama administration also tried to claim credit for being the first administration to release White House visitor logs, but the records were only disclosed because the Obama administration lost a FOIA lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW) and Judicial Watch.
Steps Biden Can Take To Fix and Strengthen FOIA
On March 15, Attorney General Merrick Garland delivered a statement for Sunshine Week that celebrated FOIA. Garland said throughout his career, and at the Justice Department, he has “seen firsthand the importance” of FOIA and recognizes the responsibility the Justice Department has to ensure FOIA’s “faithful and effective administration.”
Garland acknowledged the strain FOIA professionals were under during the COVID-19 pandemic and mentioned that over 770,000 requests were processed. Yet crucial context for understanding this number was not shared, such as how frequently requests were denied or censored and withheld from the public.
A coalition of organizations led by the ACLU and the Knight First Amendment Institute at Columbia University sent a letter [PDF] to Biden on February 22 that outlined several steps his administration could take if the administration truly is committed to transparency.
It urges the Biden administration to “direct agencies to proactively disclose records” instead of waiting for FOIA requests or litigation. For example, the Justice Department could automatically publish final legal opinions from the Office of Legal Counsel (OLC) that represent binding legal interpretations for the executive branch. (Such opinions have been at the center of FOIA lawsuits for records on the legality of torture techniques and drone strikes.)
Additionally, the organization recommends enforcement of the “foreseeable harm standard” when handling FOIA requests. The standard, codified in 2016, is that if the government cannot reasonably foresee that disclosure would cause harm it should process the document. Officials could provide a particularized explanation that connected potential harm to specific information requested instead of giving a boilerplate explanation to justify secrecy.
“FOIA offices and activities are underfunded, under-resourced, and beleaguered by enormous backlogs of records requests,” the coalition notes. “Some FOIA requests languish for years, if not decades.” Funds could be increased to prioritize recordkeeping and the processing of requests.
If Garland believes in the words he read for Sunshine Week, he can immediately order a review of all FOIA litigation and dismiss cases that do not fit Biden’s stated commitment to transparency.
The Justice Department could also “assume greater leadership over FOIA implementation,” and instead of sabotaging reform legislation, advocate for changes that would make the process more responsive to journalists and citizens. They could support an amendment to the “deliberative process privilege” exemption, which the Supreme Court recently bolstered.
Biden is already failing in one respect—his administration refuses to release visitor logs for “virtual meetings,” which POLITICO points out is the “primary mode of interaction until the coronavirus pandemic eases.”
It is incredibly easy to be more transparent than the Trump administration, but merely being a bit better than Trump is unacceptable. The last decade has left FOIA in utter disrepair and requires attention immediately.
