Author: Nathan
Australian attorney general George Brandis has introduced an amendment to National Security Bill 2014, which he says will criminalise the removal of intelligence information from an agency but is written so broadly that it can potentially be used to punish journalists for publishing or reporting on intelligence information they discover or receive.
As the Guardian reports, according to the Bill’s explanatory memorandum, it criminalises “disclosures by any person, including participants in an SIO [special intelligence operation], other persons to whom information about an SIO has been communicated in an official capacity, and persons who are the recipients of an unauthorised disclosure of information, should they engage in any subsequent disclosure”.
This last clause effectively makes journalism — publishing and reporting on secret government documents — a crime.
The new Bill is in line with an ongoing crackdown on whistleblowing and subsequently on the journalism it enables, in the spirit of the US government’s persecution and ongoing investigation of WikiLeaks for publishing Iraq and Afghanistan war logs and State Department cables. In the US trial of Army whistleblower Chelsea Manning, military prosecutors avowed that they would have tried Manning the same way had she passed the documents to the New York Times rather than WikiLeaks.
It also recalls the abusively broad language of the 1917 Espionage Act, a conviction of which requires merely “potential” harm — no proof of actual damage caused is needed. As Pentagon Papers whistleblower Daniel Ellsberg writes, reversing Manning’s 35-year prison sentence and conviction on multiple Espionage Act counts is America’s best shot at ending the government’s use of the law to imprison truthtellers.
The Espionage Act carries a ten-year prison term, and Australia’s new bill does as well, making it a crime to “endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.” This language hypes fears of national security damage without any factual backing. Snowden-released documents have been published, excerpted from and reported on for more than a year, and American officials have been unable to point to any tangible harm as a result.
Rather than learn from this lack of damage that these documents needn’t have been classified in the first place, Brandis is moving in the opposite direction, stoking fears in an effort to dissuade whistleblowing and, more broadly, Australian journalism.
Kevin Zeese, Courage Advisory Board. 9 July 2014
Edward Snowden submitting to prosecution in the United States would be like Alice going into the courtroom in Wonderland.
Alice stood before the King and Queen of Hearts who served as the judges. The jurors, Alice realises, are “stupid things.” The first witness against her was the Mad Hatter who is as mad as the culture he represents. The guinea pigs who protest are immediately “suppressed” by having their mouths tied up and being put into a bag and sat on by the King so their protests cannot be heard. The most important evidence in the trial was secret, a poem whose author is unknown and which concludes:
For this must ever be a secret,
Kept from all the rest,
Between yourself and me.
Alice realised the court room, with the icons of a justice system (a judge, jury, witnesses), was really a sham that mocks a legitimate legal process. To confirm her realisation, the King said, after the meaningless secret poetry evidence, that it was “the most important piece of evidence” and “let the jury consider their verdict.” The Queen retorts: “No, no! Sentence first; verdict afterwards.”
Last week, former Secretary of State Hillary Clinton joined the current Secretary of State John Kerry in urging Edward Snowden to come home and face prosecution. Clinton told the Guardian that he should “return knowing he would be held accountable and also able to present a defense.” When asked about whether he could really present a defense, Clinton said:
In any case that I’m aware of as a former lawyer, he has a right to mount a defense. And he certainly has a right to launch both a legal defense and a public defense, which can of course affect the legal defense.
In fact, under current US law, Snowden would face a criminal process with virtually no defense, a pre-ordained outcome and he would be silenced during the process. The law he would be charged under, the Espionage Act, provides for no real defense and the due process afforded would be inadequate, resulting in an unfair trial and a lengthy sentence.
On 14 June, federal prosecutors in Alexandria, VA, filed espionage charges against Edward Snowden. He became the eighth person to be charged under the 1917 Espionage Act during the Obama presidency, more than double all previous presidents combined. Under the three current felony charges, Snowden faces up to 30 years in prison. The prosecutors could add additional charges when Snowden is indicted.
Recent court decisions, including the prosecution of Chelsea Manning, have interpreted the Espionage Act to not require proof that the person accused intended to commit espionage. If the person intended to blow the whistle on illegal activity and was acting in the public interest, as in the case of Snowden and the NSA, that would not be a defense.
Former US intelligence officials had given Snowden an award for integrity in intelligence. A judge on the FISA surveillance court, David Saylor, acknowledged, “The unauthorized disclosure … have engendered considerable public interest and debate…” Even the Director of National Intelligence, James Clapper, acknowledged “I think it’s clear that some of the conversations this has generated, some of the debate, actually needed to happen.” And the reporters who worked with Snowden to publish the documents won the top journalism award, the Pulitzer Prize for Public Service. None of this would be relevant in court under the Espionage Act.
The jury would not be allowed to consider how the leaks were a public service, not espionage. Unlike other criminal laws violation of the Espionage Act is a strict liability law — there is no defense for a whistleblower who has admitted they leaked the documents, i.e. the fact of the leak is espionage even if the intent was to serve the public interest by exposing crimes by the government. As a result, even though Snowden was not a spy committing espionage — in the traditional sense of the term as someone spying for a foreign enemy — the law could still be applied to him.
In addition, rather than due process allowing a legitimate defense as the Constitution requires, his trial would rely on warped procedures that actually prevent the basics of a fair trial. It is very likely that Snowden would be denied bail and held in prison pending trial despite the Constitution providing for a right to bail, especially since he fled the nation and sought political asylum in a foreign country. Being incarcerated pending trial makes mounting a defense very difficult and would preclude communication with the public and the media. Clinton has it backward: unlike his current situation, where Snowden can explain himself and the importance of documents being released, he would be silenced.
As in Manning’s and other national security cases, it is likely that much of the evidence in the trial would be classified as secret which would severely limit the number of people who can see it and prevent the public and the media from seeing all of the evidence, despite the Constitution requiring a public trial. As in Chelsea Manning’s case, large portions of the trial would be out of public view because the government would claim national security secrets would be breached if the trial were completely public. This would keep the public uninformed of the real nature of the facts and in the dark when the inevitable conviction results. Pundits supporting the security state would say: “Well, you can’t criticise the verdict because you do not know what the judge and jury knew; you did not see all the evidence.”
Finally, the trial would be held in federal court in Alexandria, Virginia. This is where the grand jury has been based. The jurisdiction of this court includes the Pentagon, Pentagon City, Crystal City and Rosslyn, areas concentrated with military, security and intelligence contractors as well as people working in the Pentagon and their relatives. The Alexandria federal court is known to be very much a pro-security state court in part because of the make-up of the jury pool. Is this the “impartial jury” the Constitution envisions? It would be impossible for Snowden to get a fair trial.
Why should Snowden submit to a judicial process that would be so unfair and obviously unjust? Surely Clinton, a former lawyer, and Kerry are well aware that Snowden would be prosecuted in a phony Kangaroo court where the deck would be stacked against him, so their comments are false rhetoric, like Kerry calling on Snowden to “man-up,” comments designed to confuse the public. They know that what they are suggesting would result in Snowden facing an unfair prosecution with a pre-ordained conviction resulting in a lengthy sentence.
Should Edward Snowden submit to this mocking of legitimate trials, where there is no real due process or any opportunity to prove his innocence? That is what US security state trials have become. A sham of justice, something that Edward Snowden should never submit to.
Kevin Zeese is an advisory board member of the Courage Foundation. He is an organiser with Popular Resistance, serves as the Attorney General of the Green Shadow Cabinet and on the steering committee of the Chelsea Manning Support Network.
At last week’s Global Media Forum, WikiLeaks Investigations Editor and Courage Foundation Acting Director Sarah Harrison gave the keynote address, entitled “The Battle Against Unaccountable Power”, which covered whistleblowing, publishing, and press freedom. Harrison stressed the the value of publishing source documents in full and in searchable formats, using transparency to hold the powerful to account and the importance of combating government claims that overstate threats to national security.
Courage Foundation Acting Director and WikiLeaks Investigations Editor Sarah Harrison sat down with Democracy Now! to talk about her four months with Edward Snowden after escorting him from Hong Kong to Moscow, why she can’t return to the UK, and why we need the Courage Foundation.
Harrison explained why she would go to such lengths to help Snowden:
A few reasons. One’s sort of a general ethical point that someone had done something so brave, and they should be supported, and I felt an empathy, a natural human empathy, and wished to support. Then there’s also the fact that, I mean, I work for a publishing organization. We obviously rely a lot on sources and believe in source protection. And the last example that the world had of how the U.S. government treats a high-value source is Chelsea Manning, who they put into a cage, was tortured, sentenced to prison for 35 years in the end. And I think it’s important for the world that you can speak the truth, you can blow the whistle, and you don’t have to end up in a cage; there are people that will support you, that there are people that will take risks for you, when you have risked so much, and you can have asylum in a country.
Asked about the importance of the Courage Foundation, she said:
[It’s] for Edward Snowden’s defense and also for future Snowdens. We want to show that there is an organization that will do what we did for Snowden and as much as possible in raising money for legal defense, public advocacy for whistleblowers, so that they know when they—if they come forward, there is a support group there for them.
When asked what future Snowdens should do, Harrison advised:
I think that it is important for them to understand that there are people that will support them. I think they should reach out to organizations like the Courage Foundation that can help them—ideally pre-emptively. It would be better if we didn’t have to save someone with their face all over the front pages of every newspaper in the world. And I think that—I think it’s important that they understand that there is a public desire for the truth and that they will hopefully be seen as heroes.
See the full segment and full transcript of the interview here.
Wolfgang Kaleck, Edward Snowden’s German lawyer and the founder and general secretary for the European Center for Constitutional and Human Rights, spoke to Democracy Now! on Monday.
Kaleck discussed Snowden’s prospects of returning to the United States:
It’s not only about the charges. Yeah, there are charges under the Espionage Act, a very doubtful law which deserves to be reformed very quick. But it’s the treatment, the special treatment, what whistleblowers like Chelsea Manning got in the recent year in the U.S., and that’s special administrative measures in—during the prison time. It’s incommunicado time. It’s inhumane treatment, what he might face, but especially it’s a very long and not appropriate prison sentence he might get. And so, I fully understand, we all fully understand—the German public, the European public fully understands—that he doesn’t return under these conditions.
He talked about the German government canceling its contract with Verizon:
…the significance of this is that there were some members of the Parliament who raised their concern that when Verizon is organizing the internal communication within the German Parliament on one hand, and on the other hand they are known for their cooperation with U.S. secret services, there is a danger that internal communication within the German Parliament will be kind of wiretapped by U.S. secret services. You know, no matter if this concern is right or not, but, I mean, this is a strong signal to all U.S. corporations, telephone corporations and Internet corporations, to do something about this problem, because they are going to lose more contracts than this if they are not willing to establish firewalls between, you know, their clients and the secret services.
Kaleck commented on what he thought was Snowden’s most important revelation:
I think it’s not one document. It’s the series of documents released all over the last 12 months. There is no way out. There is no excuse possible. All what we were suspecting over the last decade, many people were criticizing, but without real evidence, and now this evidence is out. And so, nobody can deny that this practice of mass surveillance, not only of so-called terrorists, not only of so-called dangerous people, but massive surveillance against many of us is taking place. And I think that’s the biggest—the biggest revelation, the most important.
Watch the full broadcast and read a full transcript here.