Thursday, June 9, 2011

Cables, Cables, Cables: Turning The Tables…On Everyone!

Cables, Cables, Cables: Turning The Tables…On Everyone!


Last month, I reported that the FBI had served a Cambridge resident with a subpoena compelling his testimony in the active Grand Jury investigation into WikiLeaks and Julian Assange, and that the subpoena revealed a very broad scope to the criminal investigation.  A similar subpoena has now been served on David House -- one of the founders of the Bradley Manning Support Network who helped publicize the oppressive conditions of Manning's detention and who then had his laptop seized by the government without a warrant  -- compelling his testimony before the Grand Jury next Wednesday.  The subpoena and accompanying documents received by House can be viewed here and here.

This latest subpoena reveals how active the criminal investigation is and how committed the Obama administration is to criminally pursuing the whistleblowing site.  Also receiving subpoenas in addition to House and the Cambridge resident have been ex-Manning boyfriend Tyler Watkins, and a cryptography expert at Princeton, Nadia Heninger (whose Princeton photo is credited to Jacob Appelbaum, the persistently harassed American once identified as a WikiLeaks spokesman). 

But it also highlights a very important potential controversy: the refusal of numerous witnesses to cooperate in any way with this pernicious investigation.  One witness who has appeared before the Grand Jury has already refused to answer any questions beyond the most basic biographical ones (name and address), invoking the Fifth Amendment right against self-incrimination to do so, and other witnesses are highly likely to follow suit.  

One option for federal prosecutors when facing a witness who refuses to answer questions on this basis is to offer them immunity, meaning that nothing they say when testifying can be used to prosecute them (they can still be prosecuted, just not with the aid of anything they say while testifying).  Such an offer then precludes further invocations of the self-incrimination privilege as grounds for refusing to answer questions, as it means there is no longer any danger that the witness could incriminate themselves by testifying.  In the event the government makes such an offer, the court would almost certainly compel the witness to answer questions.  But at least some of those witnesses -- ones who have already been subpoenaed or are likely to be -- intend to refuse to answer questions anyway, risking an almost-certain finding of contempt of court, which typically carries jail terms as a means of forcing testimony.

One witness or potential witness who is considering that form of civil disobedience told me they view the attempt to criminalize WikiLeaks as such a profound assault on basic freedoms, including press freedoms -- one motivated by a desire to conceal government wrongdoing and illegality -- that they would rather be imprisoned than cooperate in any way with those efforts. That is the mindset of true principled heroism, and if it actually comes to that, anyone committed to transparency and preservation of press freedoms should do everything possible to support such persons in any way they can (a similar conflict is possible with the Obama DOJ's subpoena served on New York Times reporter James Risen to force him to testify against his alleged source, a subpoena Risen has vowed to fight).

The attempt to criminalize WikiLeaks is clearly a leading prong in the Obama administration's truly odious and dangerous war on whistleblowers.  Just today, The Washington Post reports that the Obama DOJ's espionage prosecution against Thomas Drake -- who exposed substantial waste, corruption and illegality at the NSA -- is falling apart.  

The Nation today examines how diplomatic cables released by WikiLeaks show that the U.S. worked cooperatively with large American corporations (Fruit of the Loom, Haines, Levi's) to block attempts by the Haitian Parliament to raise the meager minimum wage to $5/day for Haitian workers who labor in factories producing t-shirts and underwear (in the portions of his purported chat log selectively released by WiredBradley Manning said that part of his motive was that the diplomatic cables show "how the first world exploits the third").  It is because of revelations like those that the Government is so desperate to punish and deter future disclosures.

It is not hyperbole to say that the Obama administration is waging an all-out war against transparency and whistleblowing (and the transparency groups who obsequiously awarded Obama a transparency award [one accepted in secret] are as disgraceful as the five Norwegians who awarded him the Nobel Peace Prize as he continues to do things like this).  The persecution of WikiLeaks -- for engaging in the crux of investigative journalism -- along with anyone who supports it is one particularly dangerous weapon in that war.  And anyone who defies or resists that war deserves, and will need, ample public support.

UPDATE:  The New Yorker's Jane Mayer echoes The Washington Postreport linked above in reporting that the Obama DOJ's espionage prosecution of NSA whistleblower Thomas Drake is "crumbling." Mayer writes that "the government has been scrambling to find a way to avoid the trial now scheduled for next Monday" and that -- after indicting him on 10 felony counts, including espionage -- "the government has offered Drake the possibility of pleading to a misdemeanor, with no jail time," an offer he refuses to accept if it means admitting wrongdoing.  But the benefit of prosecuting whistleblowers endures even if the case crumbles because (as is true for the criminal investigation of WikiLeaks) it is legally frivolous: namely, it still serves as a thuggish deterrent to future would-be whistleblowers thinking about exposing government corruption, deceit and illegality. More: Glenn Greenwald


Posted by Dan Kaufman

Last month, Baltasar Garzón, a Spanish judge, came to town to receive the Human Rights Activism award. It is a new annual honor given jointly by the Puffin Foundation, a New Jersey-based arts-oriented non-profit, and the Abraham Lincoln Brigade Archives, an educational organization devoted to preserving the history of American volunteers in the Spanish Civil War. The award—with a hundred-thousand-dollar prize—comes at a particularly difficult time for Garzón, who has been suspended from his job amid extensive legal troubles of his own.
Garzón is widely known for his pursuit of international human-rights pariahs like Augusto Pinochet, the former Chilean dictator, but Garzón himself is now on trial in a case that stems from Spain’s own troubled history. In 2008, Garzón issued a judicial edict accusing General Francisco Franco and thirty-four accomplices of the disappearance and systematic killing of more than a hundred and fourteen thousand people during the Spanish Civil War and in the decade that followed. Many of the victims were buried in fosas comunes, or mass graves. As part of the ruling, Garzón ordered the exhumation of nineteen graves, including one believed to contain the remains of the poet Federico García Lorca. (Jon Lee Anderson wrote about the dispute over Lorca’s grave in The New Yorker.)
A week after Garzón issued his order, Spain’s chief prosecutor, Javier Zaragoza, challenged it, partly on the grounds that it violated a series of amnesty laws passed in the late nineteen-seventies as part of the process of restoring democracy to Spain. This agreement to not examine the past later became known as the pacto del olvido (pact of forgetting).
In November, 2008, the country’s highest court of appeals ruled 14-3 against Garzón. The matter appeared to be settled, but two months later a far-right organization filed a criminal suit against Garzón, accusing him of “judicial prevarication,” knowingly overstepping his authority, and violating the pacto del olvido. Garzón’s defense is that crimes against humanity cannot be absolved by a self-given, retroactive immunity. Garzón is now on trial in the Spanish Supreme Court. He faces disbarment for twenty years if convicted.
The day before he accepted the award in New York, Garzón spoke about his legal problems over a lunch of tapas and paella at La Nacional, one of the last remnants of “Little Spain,” a tiny stretch of West Fourteenth Street that was once filled with refugees from the Spanish Civil War. That war’s long shadow also helped shape Garzón’s judicial worldview.
“My family on my father’s side was more progressive, while on my mother’s side they were more conservative,” Garzón said. His mother’s brother, Gabriel, was politically conservative and an observant Catholic, but “maintained that under the law, the Republic was the legally elected government.” Gabriel fought for the Republican side in several battles, including Teruel, one of the Republic’s last stands and one of the bloodiest encounters of the war, with some hundred thousand casualties on both sides. After the war he was given three death sentences; those were later commuted, but he served eight years in prison and faced continued persecution.
“In a town of fifteen hundred people, in the course of forty years, my uncle was unable to see his friend Juan, who lived on the next street over. Not even to speak to him, because they had both been in the Republican army,” Garzón said. When Gabriel visited Garzón and his family, the Guardia Civil would show up. “I remember seeing the guards and thinking, ‘There they are, my uncle must be coming,’ ” Garzón said. “That’s how it was for many years.”
“My wife’s family has a totally different story,” Garzón continued. Her grandfather and her great-uncle were conservatives who lived in a small town. “They were pulled out of their home in the middle of the night and killed by the Republicans,” Garzón said. “They were buried and just left there.” When Garzón pursued his case, “the extreme right would say, ‘Garzón investigates Franco’s crimes because his uncle was a Republican and was persecuted.’ Of course, that didn’t quite line up with the story of my wife’s family, so they would say, ‘How dare he do this when his wife’s grandfather was assassinated by the Reds?’ They even made leaflets that they would send to my wife and to my mother-in-law, to say: ‘This is what your son-in-law is doing.’ ”
In Spain, investigative magistrates like Garzón act as a combination of prosecutor and judge. To pursue extraterritorial cases like Pinochet’s, Garzón mainly relied on Spain’s liberal acceptance of a legal doctrine called universal jurisdiction, which asserts that courts in any country can—and should—prosecute cases of genocide, crimes against humanity, war crimes, torture, and terrorism, if prosecution is not possible in the home country. In 2003, Garzón invoked universal jurisdiction to indict Osama bin Laden and dozens of Al Qaeda members; in 2009, he launched an investigation into torture at Guantánamo Bay.
 (Later that year, the Spanish legislature made the conditions for such cases more stringent, requiring, among other things, a Spanish victim.) He also took up a complaint accusing six senior Bush Administration officials of authorizing torture.
A December, 2007, diplomatic cable, obtained by WikiLeaks, from the American Ambassador to Spain, Eduardo Aguirre, Jr., describes a private meeting with Garzón. “He clearly has an anti-American streak,” the Ambassador wrote.
 He added, however, that “Garzón has also doggedly pursued many important terrorist cases and there have been and will continue to be numerous areas where our interests overlap.”
I asked Garzón about the killing of Osama bin Laden in Pakistan by a Navy Seal team. “From my perspective, it doesn’t fit well with international law,” he said. “There is not a right to kill. It can be the consequence of a military action but not the purpose,” he said. “As a judge, if there is not some hidden reason that has yet to be revealed to me, I don’t understand why they would give up the information that bin Laden potentially had.”
Garzón is now working temporarily at the International Criminal Court in The Hague.
Last Tuesday, the alleged Serbian war criminal Ratko Mladic was extradited to the Hague to stand trial for orchestrating the 1995 mass murder of more than seven thousand Muslim men and boys in Srebrenica. The day before, a colleague of Garzón’s invoked universal jurisdiction to issue arrest warrants for several El Salvadorian military leaders accused of killing six Jesuit priests in 1989.
By Deborah Cole (AFP) – 10 hours ago

BERLIN — The man who typed up Oskar Schindler's list which helped save more than 1,000 Jews from the Nazis, Mietek Pemper, has died in Germany aged 91, the Bavarian city where he lived said Thursday.

Pemper died Tuesday in Augsburg, southern Germany, and is to be buried in the city's Jewish cemetery Friday, when municipal authorities will order flags to be lowered to half-mast in his honour.

Born Mieczyslaw Pemper in 1920 in the Polish city of Krakow to a Jewish family, he was imprisoned at the Nazi concentration camp of Plaszow, where he worked as the personal typist for its feared commandant Amon Goeth from March 1943 to September 1944.

It was there that he linked up with German industrialist Schindler.

Pemper secretly read in Goeth's mail from Berlin that all factories that were not producing goods for the Nazi effort should be shuttered.

He convinced Schindler, an ethnic German from Czechoslovakia and a member of the Nazi party who first sought to profit from Germany's invasion of Poland, to abandon enamel production at his plant and make anti-tank grenade rifles.

Then Pemper, at great risk to his own life, supplied Schindler with a typed list of the names of more than 1,000 fellow prisoners to be recruited for work.

Schindler is credited with saving the lives of some 1,200 Jews through such work schemes as well as bribes paid to German officers.

Pemper later testified against Goeth and other war criminals in trials in Poland after the war. Goeth was hanged in 1946.

Schindler died in anonymity in Germany in 1974 at the age of 66, although he and Pemper remained close friends, but his story was later unearthed by Australian writer Thomas Keneally.

US director Steven Spielberg adapted the book into the 1993 film "Schindler's List" which won seven Oscars. Pemper served as an advisor on the picture.

In 2005, Pemper published his memoirs under the title "The Road to Rescue: The Untold Story of Schindler's List".

"After being forced to work for Amon Goeth and after having had the privilege to work for Oskar Schindler, I've often wondered what would have happened had there been no war and no Nazi ideology with its racist mania," he wrote.

"Goeth would probably not have been a mass murderer, nor Schindler a saver of lives. It was only the extraordinary circumstances of war and the immense power granted to individual men that revealed the nature of these men to such an impressive and terrifying degree.

"Fate had placed me between the two of them and it was like having an angel on one side and a demon on the other."

Pemper moved with his father after his mother's death in 1958 to Augsburg, where his brother had settled immediately after the war. He became a German citizen and worked as a management consultant.

Gernot Roemer, a longtime friend of Pemper's and the author of several books on Jewish life in Augsburg, described him as aN "unusually modest man" who broke his silence years after the war to relate his experiences to university, school and adult audiences.

"I am sure he never wanted to become famous or be celebrated," he wrote in the Augsburger Allgemeine newspaper Thursday. "He never married and was a very lonely person."

Roemer noted that Pemper had years ago sought out Goeth's daughter, who he said never came to terms with the legacy of her sadistic father.

Augsburg Mayor Kurt Gribl said Pemper was a tireless advocate of intercultural understanding.

"With Mietek Pemper, the city has lost an important builder of bridges between the Jewish and Christian religions and a contributor to reconciliation," Gribl said in a statement.

Augsburg awarded Pemper a civic medal in 2003 and made him an honorary citizen in 2007.

ACLU FOIAs WikiLeaks Cables

By: emptywheel Thursday June 9, 2011 1:52 pm-  

Back in April, the ACLU FOIAed a bunch of State Department cables that had been released via WikiLeaks. The State Department made no response. So now the ACLU is suing to get the cables.

The suit is interesting for several reasons. First, check out which cables ACLU has FOIAed:

The requested cables relate to the United States’ diplomatic response to foreign investigations of United States abduction, interrogation, detention, and rendition practices; efforts by the Federal government to prosecute or release former and current Guantanamo detainees; the United States’ use of unmanned aerial vehicles; and the diplomatic efforts surrounding President Obama’s decision to oppose the release of photographs depicting U.S. interrogations of persons suspected of terrorism.

The ACLU is focusing on cables that cut to the heart of America’s hypocrisy on human rights and international law.

As the suit suggests, it wants the government to have to confirm or deny whether the discussions depicted in the cables actually happened.

In spite of the urgent national interest and extensive media coverage surrounding the alleged diplomatic cables, at the time this FOIA request was made, DOS had not yet informed the American people whether the disclosed documents referred to actual federal government activity. Nor has it done so to date.

Mind you, we know they really happened–but by releasing the cables through FOIA, the State Department will have to admit it. And if they have to admit it, it will become harder to keep quashing these investigations.

(As luck would have it, the European Parliament yesterday just passed a resolution that “Calls on the EU and Member States authorities, as well as the US authorities, to ensure that full, fair, effective, independent and impartial inquiries and investigations are carried out into human rights violations and crimes under international, European and national law, and to bring to justice those responsible, including in the framework of the CIA extraordinary renditions and secret prisons programme;”)

Plus, this suit will be an interesting parallel proceeding to the government’s plodding formulationof guidelines that will allow Gitmo defense lawyers some access to the Gitmo Documents that describe their clients.

Finally, there’s one other interesting wrinkle here. 

Many of these documents seemingly should have been turned over in the ACLU’s (and CCR’s) previous FOIAs on torture and rendition. So will this FOIA suit force the State Department to admit whether it was blowing off a FOIA in the past?

Here’s the actual request from April. The cables they’ve requested are below:

ACLU Sues The State Department To Declassify WikiLeaks’ Already-Published Cables
The American Civil Liberties Union Just Filed An Unusual Lawsuit: One That Aims To Make Publicly Published Documents Public.

On Thursday the ACLU sued the State Department [read a PDF of its complaint here] for failing to respond for the last two months to its Freedom of Information Act request for 23 memos that have already been released by WikiLeaks. Despite having been published last year by the secret-spilling group, those documents remain classified.
The State Department cables expose, for instance, secret drone strikes by U.S. forces in Yemen, and American pressure on Spain and German tocomply with CIA extraordinary rendition of terrorist suspects. The ACLU says it selected the 23 cables out of the thousands already published because they were kept secret to avoid government embarrassment rather classified for purposes of national security, and because they show human rights violations.
Given that all those memos have already been covered by the news media, why bother to declassify them anyway? “The point is to expose the legal fiction that the secrecy system rests on,” says Ben Wizner, a staff attorney for the ACLU. “The government uses this formality of secrecy to avoid having to answer for real violations of the law.”
Wizner says that keeping the documents classified makes them much more difficult to use in courts, for instance, and allows the government to avoid confirming their authenticity.
The files that WikiLeaks released on Guantanamo detainees in April, for example, can’t be used by the defense lawyers for those prisoners unless they’re viewed in a secure government facility. “Government employees can’t read the New York Times. When I go to court in a real lawsuit seeking to get compensation for a victim’s ordeal and hold people liable, I can’t use this information,” Wizner says. “The information in those cables isn’t just information we ought to know, it’s information we ought to be able to use.”
I contacted the State Department for comment on the lawsuit, but didn’t immediately receive a response.
The ACLU’s legal maneuver comes at a clever moment: Next Tuesday marks the 40th anniversary of the initial release of the Pentagon Papers by the New York Times. And 40 years after they became public, the Pentagon is only now declassifying those documents.
Daniel Ellsberg, the source of those top secret documents, wrote on Twitter Thursday, “Pentagon Papers declassified–40 years late. Their lessons are more timely than ever.”

See the ACLU’s full complaint below.


Country recovering from collapse of its banks and government is using social media to get citizens to share their ideas.

It is not the way the scribes of yore would have done it but Iceland is tearing up the rulebook by drawing up its new constitution through crowdsourcing.

As the country recovers from the financial crisis that saw the collapse of its banks and government, it is using social media to get its citizens to share their ideas as to what the new document should contain.

"I believe this is the first time a constitution is being drafted basically on the internet," said Thorvaldur Gylfason, member of Iceland's constitutional council.

"The public sees the constitution come into being before their eyes … This is very different from old times where constitution makers sometimes found it better to find themselves a remote spot out of sight, out of touch."
Iceland's existing constitution dates back to when it gained independence from Denmark in 1944. It simply took the Danish constitution and made a few minor adjustments, such as substituting the word "president" for "king".
In creating the new document, the council has been posting draft clauseson its website every week since the project launched in April. The public can comment underneath or join a discussion on the council's Facebook page.

The council also has a Twitter account, a YouTube page where interviews with its members are regularly posted, and a Flickr account containing pictures of the 25 members at work, all intended to maximise interaction with citizens.

Meetings of the council are open to the public and streamed live on to the website and Facebook page. The latter has more than 1,300 likes in a country of 320,000 people.
The crowdsourcing follows a national forum last year where 950 randomly selected people spent a day discussing the constitution. If the committee has its way the draft bill, due to be ready at the end of July, will be put to a referendum without any changes imposed by parliament – so it will genuinely be a document by the people, for the people.
Given that it was intended to go to a referendum, Gylfason said, the idea was that the public should be involved from the start of the process and not just at the end. Social media is seen as a way of making that happen with Iceland's population among the world's most computer-literate. Two-thirds of its people are on Facebook.
Gylfason said he had been pleasantly surprised by the level of discussion. "There's been a lot of goodwill for what we are trying to do. The public have added much to our debate. Their comments have been quite helpful and they have had a positive effect on the outcome."
Gylfason, an economics professor at the University of Iceland, said the draft bill would include checks and responsibilities for parliament and provisions for separation of powers intended to prevent a repeat of the financial crisis. It would also contain significant changes in the way MPs are elected and judges appointed.

A firestorm on the US right has erupted after the Guardian reported that Sarah Palin will be denied a meeting with Lady Thatcher on the grounds that it would be "belittling" for her to meet the darling of the Tea Party movement.

Rush Limbaugh, the conservative radio host, devoted the opening section of his radio show to denouncing the "preposterous" Guardian report, as Palin supporters accused Thatcher's circle of disgracing the former prime minister.

The US conservative right reacted furiously after the Guardian reported that Thatcher's aides had decided it would be inappropriate for her to meet Palin, who is planning to visit London next month en route to Sudan. Palin has been touring US historical sites (an excursion that saw her slip up this week on the subject of Paul Revere, the American patriot who made a famous "midnight ride" to warn of approaching British forces).

One Thatcher ally told the Guardian: "Lady Thatcher will not be seeing Sarah Palin. That would be belittling for Margaret. Sarah Palin is nuts."
The former prime minister's friends say she will show the level she punches at when she marks the centenary of the birth of Ronald Reagan by attending the unveiling of a statue of the late president outside the US embassy in Grosvenor Square on independence day, 4 July. The Thatcher ally added: "Margaret is focusing on Ronald Reagan and will attend the unveiling of the statue. That is her level."
The response from the US right was swift. Limbaugh opened his show on Wednesday with a lengthy denunciation of the Guardian after the New York Daily News and a host of US publications picked up on the comments.

"There's a story out there today, and it's an illustration of how things happen, how things are said and reported," Limbaugh told his listeners.
"This is preposterous, and I have personal knowledge of this."
Limbaugh said he knew Thatcher well and embarked on a lengthy description of how he had driven her round a Florida golf course on a golf cart: "I have been with her in social and professional settings as well. It's obvious that her health is not today what it was, but back in the day, Margaret Thatcher would in no way allow an aide to refer to anybody, Sarah Palin notwithstanding, as 'nuts'."

La Donna Hale Curzon, the host of Sarah Palin Radio, accused the Thatcher circle of disgracing the former prime minister. "Margaret Thatcher would never call a fellow Conservative, let alone Gov Palin 'nuts'," Hale Curzon tweeted. "Thatcher's handlers have disgraced the Iron Lady."

The ally who criticised Palin said the Thatcher circle would not change their minds despite the backlash. "Margaret will not be meeting Sarah Palin. If necessary we will make sure that Margaret has an off day when Palin is in London."
Critics of Palin revelled in the backlash against Thatcher's circle, whose dismissive views of Palin undermine her claim that she is the victim of a witch-hunt by left-leaning mainstream media. Palin regards Thatcher as one of her heroines.

Andrew Sullivan, of The Dish blog, which chronicles Palin's weaknesses, wrote : "As usual, the tired old bigoted comedian Rush Limbaugh took offence that anyone could call Sarah Palin 'nuts,' even though she is quite obviously a few sandwiches short of a picnic, and her grip on reality is, shall we say, tenuous. And as usual, Limbaugh blamed it on the left, ie the Guardian's Wintour/Watt blog.

"What he doesn't understand is that Palin's nutsiness is not a partisan matter in Britain, or anywhere else in the world. It is an obvious truth marvelled at by all.
Palin's emergence as a serious figure in American politics has made the country a laughing stock across the world. The idea that a stateswoman like Thatcher, in advanced dementia, would be used by such a crackpot is simply unseemly."

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