Category Archives: Editor’s comments

WikiLeaks and the Espionage Act

WL Central reports:

Today, Jennifer Robinson, one of the lawyers for Julian Assange, told The Guardian that the US government may be about to press charges against Julian Assange under the Espionage Act. She said that the legal team had heard from “several different US lawyers rumours that an indictment was on its way or had happened already, but we don’t know”. Ms Robinson told ABC News that “Our position of course is that we don’t believe it (the Espionage Act) applies to Mr. Assange and that in any event he’s entitled to First Amendment protection as publisher of Wikileaks and any prosecution under the Espionage Act would in my view be unconstitutional and puts at risk all media organizations in the U.S.”

Rumours about the possibility of Julian Assange having been indicted by a grand jury, whose proceedings are secret, have been circulating for a while. The Christian Science Monitor had a few days ago quoted Stephen Vladeck, an expert in national security law at American University, who said that an empaneled grand jury could have already been considering the case. “We wouldn’t know what they’re doing until the whole thing is concluded,” he said. The Monitor also quoted CNN legal expert Jeffrey Toobin, who said “I would not be at all surprised if there was a sealed arrest warrant currently in existence.”

Prominent civil rights attorney Harvey A. Silverglate, who worked on the Pentagon Papers case, also raised the possibility in an interview with NECN, while also pointing out that prosecution would be extremely difficult, and for many reasons not in the interest of the United States government.

As we previously covered, the legal consensus appears to be that a prosecution under the Espionage Act would be both difficult and dangerous for the United States, notably with regards to First Amendment protections (also see: EFF, ACLU.)

The US Congressional Research Service published on December 6 a report titled “Criminal Prohibitions on the Publication of Classified Defense Information” [PDF]:

This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions. (emphasis ours)

The report’s conclusion states: “Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected.”

A new poll finds that only 31% of Americans believe that the publication of secrets is protected by the First Amendment.

This implies that most Americans have unquestioningly swallowed the line that the boundaries that circumscribe freedom for the press are those defined by the US government. The government defines the terms of national security and the press must not challenge those definitions.

In other words, the press should have as much freedom as the government sees fit.

In other words, the press can enjoy the same amount of freedom that a well-trained dog enjoys once it has learned to never strain at its leash.

In other words, most of the Americans who say that America is at war in order to protect our freedom, see that freedom as being akin to the freedom of a domesticated animal.

We know how to bark, how to wag our tails and how to catch treats.

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How WikiLeaks turned the First Amendment into a ‘problem’

First Amendment attorney Floyd Abrams says: “WikiLeaks may just be the price we pay for freedom of the press in this country.”

Why not: “WikiLeaks demonstrates the value of the First Amendment”?

After all, what’s the good of having a free press when journalists so willingly serve the interests of the establishment? If the Fourth Estate had not turned itself into a fourth branch of government, WikiLeaks would have little reason to exist — or at least, little reason to be challenging the authority of the US government.

Freedoms not exercised will easily be taken away.

Time reports:

Thanks to nearly a century of cases dealing with the clash between national security and the freedom of the press, the Constitution provides enormous protection for publishers of state secrets. Those who leak the secrets in the first place — government officials, even soldiers, for instance — can and are prosecuted, such as Army private, Bradley Manning, now sitting in a military prison after having been charged with illegally downloading secret files amid suspicions that he gave them to WikiLeaks.

Putting someone like Assange in jail for publishing documents he did not himself steal, on the other hand, is exactly the kind of thing that First Amendment makes difficult. “From everything we’ve seen, [Manning] was merely responding to the notion that Assange might publish the cables,” former CIA inspector general Frederick P. Hitz told TIME. “There’s nothing to show that Assange played an active role in obtaining the information.” He conceded that the leaks had been tremendously damaging, but added “I don’t see any easy effort there” in pursuing charges.

Holder has said the government will explore whether Assange could be charged with a form of theft since the records had been stolen, though such a course is fraught will obstacles, given that the files are digital copies of government records. Holder said too the government will consider whether Assange might be guilty of conspiring somehow with Manning, or went beyond the traditional role of publisher by acting as a kind of broker in dissemenating the files to newspapers around the world. What worries famed First Amendment attorney Floyd Abrams is that if the government stretches to get around the Constitution to charge Assange, it may end up damaging the press freedoms enjoyed by every publisher. Nobody should applaud Assange, Abrams told TIME, but trying to remedy the harm he caused could easily leave the country worse off. “WikiLeaks may just be the price we pay for freedom of the press in this country,” Abrams said.

The New York Times reports on the administration’s ongoing effort to find a legal trap in which they might snare Assange:

Justice Department officials have … examined whether Mr. Assange and WikiLeaks could be charged with trafficking in stolen government property.

But scholars say there might be legal difficulties with that approach, too, because the leaked documents are reproductions of files the government still possesses, not physical objects missing from its file cabinets. That means they are covered by intellectual property law, not ordinary property law.

“This is less about stealing than it is about copying,” said John G. Palfrey, a Harvard Law School professor who specializes in Internet issues and intellectual property.

Intellectual property law criminalizes the unauthorized reproduction of certain kinds of commercial information, like trade secrets or copyrighted music, films and software files. But those categories do not appear to cover government documents, which by law cannot be copyrighted and for which there is no ordinary commercial market.

Mr. Assange has received leaks of private-sector information as well. He has indicated, for example, that his next step might be to publish a copy of the contents of a hard drive belonging to an executive at a bank — apparently, Bank of America.

If he does so, some of the problems associated with trying to find a way to prosecute him for distributing leaked government documents could disappear. The works of a person in the private sector are automatically copyrighted, and bank documents could be deemed trade secrets.

“If you had large-scale dissemination of a private-sector company’s records, there might be some kind of argument there similar to commercial espionage,” said James Boyle, a Duke University law professor who specializes in intellectual property and public-domain issues.

There would still be obstacles. For example, Mr. Assange could claim that his distribution of the files was allowable under the “fair use” exception to copyright law and that it was not for financial gain. Still, “fair use” does not allow wholesale reproduction, and prosecutors could argue that his organization was raising money from its activities.

Even so, Mr. Boyle cautioned, intellectual property law is not well designed to prosecute what WikiLeaks is doing.

“The reason people are upset about this is not about commercial theft or misusing the fabulous original expressions of U.S. diplomats,” Mr. Boyle said. “I think it is the wrong tool. You go after Al Capone for tax evasion rather than bootlegging — fine. But this is a bridge too far.”

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Latest graduate in FBI’s terrorist training program

Since it’s difficult to identify and capture terrorists, the FBI seems to have concluded that an effective counterterrorism program can only work if they first find potential terrorists, coach them and then catch them. It’s a bit like sports hunting for those whose pride in displaying a trophy is undiminished by the fact that the animal was raised to be shot.

Associated Press reports:

A 21-year-old man charged with trying to blow up a military recruiting center briefly hesitated when he heard about a federal sting operation that nabbed an alleged terrorist in Oregon last month but decided to keep going with his plan, authorities said.

Antonio Martinez, a naturalized U.S. citizen who goes by the name Muhammad Hussain after recently converting to Islam, faces charges of attempted murder of federal officers and attempted use of a weapon of mass destruction.

He told an informant working with the FBI he thought about nothing but jihad and wasn’t deterred even after a Somali-born teenager was arrested in Portland, Ore., the day after Thanksgiving in a sting, court documents released Wednesday showed.

The Oregon suspect intended to bomb a crowded downtown Christmas tree-lighting ceremony. But – like Martinez – the people he’d been communicating with about the plot were with the FBI. Martinez wondered if he was headed down a similar path, documents say.

After hearing about the Oregon case, Martinez was uneasy and called the informant demanding to know who he was, according to court documents.

“I’m not falling for no b.s.,” he told the informant. He said he still wanted to go ahead, but the informant told him to think about it overnight and call the next day, which Martinez did.

In the following days, Martinez reiterated his support for the plan several times, documents show, at one point reassuring the informant that he didn’t feel pressured to carry it out: “I came to you about this, brother.”

The bomb he’s accused of trying to detonate was fake and had been provided by an undercover FBI agent. It was loaded into an SUV that Martinez parked in front of the recruiting center, authorities said, and an FBI informant picked him up and drove him to a nearby vantage point where he tried to set it off.

“There was never any actual danger to the public during this operation this morning,” U.S. Attorney Rod J. Rosenstein said Wednesday. “That’s because the FBI was controlling the situation.”

The FBI’s dubious approach to counterterrorism was highlighted earlier this week in a Washington Post report on a convicted forger named Craig Monteilh who became an FBI informant and is now suing the agency.

The Islamic Center of Irvine in Southern California was a target of Monteilh’s operations.

In the Irvine case, Monteilh’s mission as an informant backfired. Muslims were so alarmed by his talk of violent jihad that they obtained a restraining order against him.

He had helped build a terrorism-related case against a mosque member, but that also collapsed. The Justice Department recently took the extraordinary step of dropping charges against the worshiper, who Monteilh had caught on tape agreeing to blow up buildings, law enforcement officials said. Prosecutors had portrayed the man as a dire threat.

Compounding the damage, Monteilh has gone public, revealing secret FBI methods and charging that his “handlers” trained him to entrap Muslims as he infiltrated their mosques, homes and businesses. He is now suing the FBI.

Officials declined to comment on specific details of Monteilh’s tale but confirm that he was a paid FBI informant. Court records and interviews corroborate not only that Monteilh worked for the FBI – he says he made $177,000, tax-free, in 15 months – but that he provided vital information on a number of cases.

Some Muslims in Southern California and nationally say the cascading revelations have seriously damaged their relationship with the FBI, a partnership that both sides agree is critical to preventing attacks and homegrown terrorism.

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The expanding Saudi file

Saudi Arabia’s Prince Turki al-Faisal demanded on Sunday that WikiLeaks be “vigorously punished” and said that it was incumbent on the US “to not just be extra vigilant but to try to restore the credibility and the legitimacy of their engagement with the rest of us, and ensure that there are no more leaks to be faced in the future,” Reuters reported.

Leaked cables claim that Saudi Arabia is the world’s largest source of financial support for terrorism; that the Iraqi government sees a greater threat to the country’s stability coming from Saudi Arabia than Iran; and that the Saudis appeared to want ‘another Musharraf‘ to take over Pakistan — no wonder the Saudis want to see WikiLeaks punished.

The Los Angeles Times now reports:

At Saudi Arabia’s urging, Morocco broke ties with Iran and began a domestic campaign against Moroccan Shiites in exchange for economic trade-offs, an Egyptian diplomat told sources at the U.S. Embassy in Rabat, according to a leaked U.S. diplomatic cable published by the Lebanese newspaper Al Akhbar.

“[The diplomat] said goading Iran, a country with which it had limited economic interests, and demonizing the Shi’a, a powerless minority group, was a small price for Morocco to pay for a strategy that could have major payoffs,” the April 2009 cable read.

In exchange for active Moroccan support, Saudi Arabia allegedly promised to ensure the flow of subsidized oil and compensate for the loss in direct foreign investment in Morocco resulting from the global financial crisis.

The diplomat, whose name had been redacted from the cable, also said that the domestic campaign against Shiites was intended to neutralize opposition groups in the municipal elections and reassert King Mohammed VI’s authority as a religious leader.

Morocco broke ties with Iran in March 2009, accusing Tehran of using its embassy in Rabat as a base for spreading Shiite Islam. The formal break in relations was followed by a crackdown on Morocco’s tiny Shiite minority, which resulted in the closure of religious schools and the arrest of hundreds of people.

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New York Times plays down Saudi role in promoting terrorism

“WikiLeaks cables portray Saudi Arabia as a cash machine for terrorists,” declares The Guardian, reporting on the US State Department’s concerns about the Kingdom’s role in funding al Qaeda and other militant organizations.

The New York Times opts for the bland, “Cash Flow to Terrorists Evades U.S. Efforts,” with a subhead, “Arab Allies Resist U.S. Moves to Close Aid Pipelines, Cables Say.”

Reporters Eric Lichtblau and Eric Schmitt wait until paragraph nineteen of their report to declare: “Saudi Arabia, a critical military and diplomatic ally, emerges in the cables as the most vexing of problems.” Paragraph nineteen! Why wasn’t that in the first paragraph? Just because President Obama has demonstrated his willingness to bow to King Abdullah, does the Times feel obliged to assume the same posture?

The Guardian reports:

Saudi Arabia is the world’s largest source of funds for Islamist militant groups such as the Afghan Taliban and Lashkar-e-Taiba – but the Saudi government is reluctant to stem the flow of money, according to Hillary Clinton.

“More needs to be done since Saudi Arabia remains a critical financial support base for al-Qaida, the Taliban, LeT and other terrorist groups,” says a secret December 2009 paper signed by the US secretary of state. Her memo urged US diplomats to redouble their efforts to stop Gulf money reaching extremists in Pakistan and Afghanistan.

“Donors in Saudi Arabia constitute the most significant source of funding to Sunni terrorist groups worldwide,” she said.

Three other Arab countries are listed as sources of militant money: Qatar, Kuwait and the United Arab Emirates.

The cables highlight an often ignored factor in the Pakistani and Afghan conflicts: that the violence is partly bankrolled by rich, conservative donors across the Arabian Sea whose governments do little to stop them.

The problem is particularly acute in Saudi Arabia, where militants soliciting funds slip into the country disguised as holy pilgrims, set up front companies to launder funds and receive money from government-sanctioned charities.

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Is Yossi Melman linking WikiLeaks to Mossad?

In The Independent yesterday, Yossi Melman made an intriguing statement. Melman is the intelligence and military affairs correspondent for Haaretz and generally regarded as well informed on the operations of Mossad. He wrote:

Three events – not seemingly related – took place yesterday. The leaking of State Department documents, many of which deal with the world’s concerns about Iran’s nuclear programme; the mysterious assassination in Tehran of a top Iranian nuclear scientist and the wounding of another, and the appointment of Tamir Pardo as the new head of Mossad, Israel’s foreign espionage agency.

But there’s a link between them. They are part of the endless efforts by the Israeli intelligence community, together with its Western counterparts including Britain’s MI6 and America’s CIA, to sabotage, delay and if possible, to stop Iran from reaching its goal of having its first nuclear bomb.

In the rest of his article he focused on the assassins in Tehran and says that it is “obvious” that “Israel was behind it.” He does not amplify on this part of his opening assertion, namely, that the leaking of State Department cables is part of the effort to stop Iran developing nuclear weapons. However you read it, he seems to be suggesting that WikiLeaks is in some way part of the effort.

Interestingly, a request for a debate on WikiLeaks in the Israeli parliament has been rejected.

The Knesset will not hold a debate on WikiLeaks, despite a request by a number of parliamentarians for a session on leaked U.S. cables that has rocked the diplomatic world.

The Knesset Presidium, the body which regulates plenary debates in Israel’s parliament, turned down a request from a number of members for a session on the consequences of the leaks for national security.

Among the WikiLeaks disclosures were an Israeli plan to coordinate its 2008 invasion of Gaza with Palestinian President Mahmoud Abbas and details of Israel’s covert ties with governments in the United Arab Emirates.

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“Terrorism” is now a fabrication of a national security state

This is not a conspiracy theory. To say that terrorism is a fabrication of a national security state is to say that when the label “terrorist” starts being indiscriminately applied to anyone who threatens the government we have taken another step towards totalitarianism.

Rep. Peter King, R-N.Y., the incoming chairman of the House Committee on Homeland Security, is calling for WikiLeaks to be designated a terrorist organization.

At Slate, David Weigel writes:

As Republicans come into power, they’re going to explore what can be done. They can’t do much. But let’s be honest. The quest to find some way to define Assange’s group as terrorists is not about fighting terrorism. It’s about indulging the fantasy, well put by Cornell law professor William Jacobson, of Assange being hunted down like a Robert Ludlum villain and possibly “killed while resisting arrest.”

And all of this assumes there’s something talismanic about declaring someone a “terrorist.” In reality, American agents could capture any boogeyman they wanted and prosecute him in the United States. The 1992 decision in U.S. v. Alvarez-Machain affirmed that the government was within its rights when a Mexican citizen was abducted and brought to the U.S. to be tried for the murder of a Drug Enforcement Administration agent. “We have kidnapped people to bring them to justice,” explains David Cole, a law professor at Georgetown. “Whether it applies in this case, I don’t know.”

It probably doesn’t. What’s being lost in the James Bond scenarios about taking down WikiLeaks is that its current, highly embarrassing leaks don’t actually threaten American intelligence assets. They create problems for diplomats, and by extension they embarrass the United States. They cause the State Department to lose face. That’s not terrorism as we define it.

So how does King or anyone else turn Julian Assange into a terrorist? They either have to define terrorism in some real way that would eventually open up media organizations to terror charges of their own, or WikiLeaks actually has to do something materially to benefit terrorists. Neither scenario seems likely. What is likely: None of this gets past the shouting stage.

Weigel’s analysis may be sound in the short term but the broader question is not legal. It is whether in American popular discourse the term “terrorist” continues to acquire legitimacy in broader and broader applications or whether those who criticize the term’s flagrant abuse are able to shout louder and get more widely heard. So far the terrorists are winning.

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Transparency will be the first casualty of the latest WikiLeaks revelations

Christopher Dickey writes:

The first and most lasting casualty of this massive avalanche of documents classified “confidential,” “secret” and “noforn” (not for foreign governments to see) is going to be precisely the “transparency” that WikiLeaks founder Julian Assange says he advocates. “Transparent government tends to produce just government,” he opined in July after an earlier dump of military dispatches about Afghanistan. But the fact is, transparent diplomacy is nothing but press releases.

The problem the State Department faces now is not just the difficulty of having frank conversations with allies or secret negotiations with enemies who think—who know—it leaks like a sieve. It will also be harder to have frank exchanges within the United States government itself. To avoid this kind of massive leak in the future, documents will get higher classification and less distribution, and a lot of the most important stuff may not be committed to the keyboard at all.

As a former US ambassador in some of the Middle East’s most sensitive posts wrote me (privately) this morning: “The consequence will be even less written reporting and communication—a disaster if you ever want to reconstruct what happened. It is already bad and now will be even worse. Everyone (or those in the know) will be passing info verbally. Ever play that whisper game as a kid?” He means the one where you pass a message from mouth to ear and discover it’s utterly distorted at the end of the chain. “Yep!” he wrote, that’s what internal communications are going to be like.

For everyone who believes that the truth will set you free (and I do), transparency is something that has the flavor of being inherently good. But to understand that diplomacy and transparency mix together as well as oil and water, one merely has to remember that diplomacy hinges on negotiations.

If you’re buying a car, do you want the seller to know what you earn or how much money you have in the bank? Haggling — and that’s what every negotiation ultimately is — is all about being able to control what you want to reveal and what you want to conceal. Walk into a negotiation as an open book and there won’t be any negotiation.

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Crisis on the Korean peninsula or business as usual?

Vice Marshal Ri Yong Ho flanked by Kim Jong Un and Kim Jong Il

Steven Borowiec writes:

South Korean officials promised “enormous retaliation” if more North Korean attacks follow the shelling Tuesday of tiny Yeonpyeong island. For more than one reason, they can be glad that hasn’t happened.

To match the North’s aggression would cause a destructive conflict; to do nothing is to appear weak. A taxi driver in Seoul told me North Korea would never have attacked if the South still had a strong leader, like one-time military dictator Park Chung-hee. The driver said policies of engagement with the North had made the South into a pushover, a country that can be attacked without fear of serious retaliation. Nowadays, it seems everyone has a theory on how to handle North Korea.

Regardless, some things are fairly clear. To justify its military-first regime, North Korea always needs fresh evidence that the outside world wishes ill on the country. Its leaders need to present some acceptable reason why so many North Koreans are starving.

According to North Korea expert Brian Myers, “If the U.S. and South Korea cannot do anything for fear of Seoul coming under attack, and are foolish enough to make this line of reasoning public, then a future ‘provocation’ is merely a matter of time.”

Twenty-something Kim Jong Un is expected to take over leadership from his aging father soon, but the training wheels aren’t off yet. Some consider the North Korean attack a kind of practice for the young Kim, a way to demonstrate experience in dealing with conflict.

Myers plays down that angle: “I don’t like the current Western journalist habit of attributing NK’s every show of belligerence to the succession dynamic. It implies that things will change in the future once Kim Jong Un is settled in. I don’t consider that likely; when you are a military-first state you have to keep flexing your muscles on the world stage.”

The succession narrative invests too much significance in personality politics: the idea that a kind of rite of passage is playing out through which Kim Jong Un can demonstrate his capacity to be invested with the authority now possessed by his father. Yet as with all authoritarian regimes, the power of the state resides in the institution of the regime and the overriding interest of that institution is in its own continuity. Dynastic succession has less to do with a transfer of power than it has with maintaining the status quo.

The Sydney Morning Herald adds:

Behind North Korea’s cartoon dictator, handful of semi-functional nuclear weapons and threats of ”merciless” retaliation there is a desperate and exhausted nation that can barely concentrate beyond the next meal.

If there is any cause for reassurance after this week’s deadly attack on South Korean civilians and revelations that North Korea has a second nuclear program, it is that Kim Jong-il and his generals may be dangerous but there is little evidence they are collectively mad.

”Do you think the North Korean military is stupid enough to have a war with America?” says Park Syung-je, of the Asia Strategy Institute in Seoul. ”Do you think his son and others want suicide? I don’t think that is possible.”

North Korea has the world’s second-largest army with more than a million soldiers and nearly 5 million reservists, despite its population shrinking to just 23 million people after two decades of famine and malnutrition. But even within this privileged military strata soldiers are physically stunted, equipment is not maintained and even bullets are in short supply.

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Hitchens on 9/11

From an interview of Christopher Hitchens by Australia’s ABC TV (the full interview can be viewed on broadband here on Windows Media Player):

TONY JONES: So let’s talk briefly about that day September 11, 2001.

CHRISTOPHER HITCHENS: Yes.

TONY JONES: You described it very tellingly soon afterwards, if not on the day, as it being as if Charles Manson had been made God for a day.

CHRISTOPHER HITCHENS: Mmm. Yes, I remember thinking that as I watched this huge cloud of filth emerge from the wreckage, as the towers sank, up came this sort of billowing cloud of ordure and wreckage and including the shredded remains of about 3,000 of my fellow creatures.

This is a really evil looking cloud. There was shot from a helicopter above Manhattan showing it sort of spreading on this really beautiful day all across the southern tip of my favourite island. And I thought “it’s as if Charles Manson is giving orders today, yes”.

TONY JONES: The other…

CHRISTOPHER HITCHENS: That’s how it felt. I think about it every day, still.

TONY JONES: Take yourself back then to watching it. Because one of the most horrific images – and I think you actually described this as one of the most horrific images that still remains in your head that you have ever seen and that is, the burning people falling or jumping, in fact, from the towers before they collapsed.

CHRISTOPHER HITCHENS: Yes.

Yes – hesitating between jumping to their deaths or being burnt alive and getting both – jumping while burning.

And a terrible little shrill cry that was overheard on the streets of Greenwich Village by a school teacher who was trying to escort some children along the sidewalk and one of them pointing and saying, “Look, teacher, the birds are on fire”.

A childish attempt to rationalise what was going on, make sense of it or, if you like – the wrong word but to humanise it.

That stayed in my mind as well. Still does.

TONY JONES: One of the more remarkable things that happened in the aftermath was the reaction of some on the Left – and I am sure this rather helped your – or helped galvanise the transformation that you were already undergoing – particularly from the reaction from people like Noam Chomsky.

Tell us a little bit about that.

CHRISTOPHER HITCHENS: Well, once I had sorted out my various impression of the day, which I had in common with everyone else – and which also included the realisation that a friend of mine had just been flown into the walls of the Pentagon.

I felt, with that additional horror, much as everyone else did, to discover, work through shock, rage, fear – not so much, oddly enough. I didn’t feel I was frightened by it but I was very powerfully shaken by it.

And then – I wasn’t sure whether to trust myself with this but I actually have to admit it – a sort of sense of exhilaration coming from, “Okay, it’s everything I hate versus everything I love”.

It’s a summons of a sort. It’s “Okay, now if you don’t recognise this as a crisis, when would you recognise one?”

And then very soon succeeded by the realisation – I then had been working for The Nation magazine as columnist for the flagship journal of the American Left for upwards of two decades – immediately realising I wasn’t going to like what a lot of my comrades were going to say.

And I remember thinking of Noam Chomsky, Michael Moore, Howard Zinn, and a few others. They would find a way of explaining this away.

And that I wasn’t in the mood for it. And I don’t just mean mood for that moment. It wasn’t a temporary sort of eruption of my digestive system or anything.

I wasn’t prepared to tolerate that.

To tar the Left with the suggestion that 9/11 would simply be “explained away” is to ignore a dimension of the response in many observers which had nothing to do with diminishing the magnitude of what had happened or claiming that America had it coming. We weighed the significance of the events of that single day against what we feared would follow in the years and decades to come. Which is to say, there were many of us who witnessed 9/11 with a sense of dread, convinced that what would follow would be vastly more destructive, but unlike al Qaeda’s attack be violence done in our name.
(H/t to Pulse.)

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AIPAC bares all to quash Rosen lawsuit

Maybe the days of the Israel lobby are numbered — not because it’s about to fall apart but because the terms of discourse will change. That is, we will no longer be speaking about a “lobby” as such but more explicitly about the evidence that the state of Israel has effectively pulled off a soft coup and through its informal representatives in Washington assumed a controlling influence over significant parts of the US government.

To put the notion of America under Israeli control in perspective, imagine this: if at the height of the Cold War, hundreds of USG officials and political operatives inside Washington were discovered to have sympathies and close ties with the Soviet Union. No greater shock to the American political system would have been seen since the Civil War. The fact that Israel is characterized as a friendly state really does little to diminish the significance of the influence it wields in domestic American politics. No other foreign government enjoys a fraction of Israel’s power in the US.

Grant Smith writes:

On Nov. 8, 2010, the American Israel Public Affairs Committee (AIPAC) filed a massive 260-page motion [.pdf] in the District of Columbia Superior Court. It asks Judge Erik Christian to dismiss former AIPAC employee Steven J. Rosen’s $20 million defamation suit. In October the court dismissed all counts of the March 2009 lawsuit except for Rosen’s claim of harm over AIPAC statements to the press that he did not uphold its standards of conduct. Rosen and AIPAC have – until now – abstained from filing damaging information about the internal workings of AIPAC in court. AIPAC’s willingness to publicly air some extremely sordid and revealing content to get the remaining count thrown out before an alternative dispute resolution hearing begins in December is a sign that AIPAC is now fighting for its life, or – as one former AIPAC attorney put it – “reason for being.” If Rosen proves in court that AIPAC has long handled classified information while lobbying for Israel, the worn public pretense that AIPAC is anything but a stealth extension of the Israeli Ministry of Foreign Affairs – from which it emerged in 1951 – will end forever.

Rosen filed his civil suit after adverse judicial rulings made his (and coworker Keith Weissman’s) prosecution under the Espionage Act unlikely. Col. Lawrence Franklin pled guilty to passing classified national defense information to persons not entitled to receive it while Rosen and Weissman were indicted in 2005 for their role in the espionage affair. Although prosecutors reluctantly dropped [.pdf] their indictment in May 2009 – as AIPAC carefully notes in its filing – Rosen was never acquitted. Outstanding questions in the defamation suit about classified-information trafficking have now placed AIPAC in a bind. If AIPAC financially settles with Rosen, it will signal to the American people and attentive law enforcement officials that it is honoring a previous compensation deal to pay Rosen off after the spy flap subsided. On May 11, 2010, Rosen revealed an e-mail to Washington Post reporter Jeff Stein asserting that AIPAC promised “when this is over we will do right by Steve.” But it’s now far from clear whether AIPAC has the financial wherewithal or donors willing to honor such a – possibly illegal – commitment.

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Israelis united by fear

Uri Avnery writes:

On Saturday evening, two weeks ago, we returned by taxi from the annual memorial rally for Yitzhak Rabin, and as usual got into a conversation with our driver.

Generally, these conversations flow smoothly, with lots of laughs. Rachel loves them, because they bring us face-to-face with people we don’t normally meet. The conversations are necessarily short, the people express their views concisely, without choosing their words. They are of many kinds, and in the background we generally hear the radio news, talk shows or music chosen by the driver. And, of course, the soldier-son and the student-daughter are mentioned.

But this time, things were less smooth. Perhaps we were more provocative than usual, still depressed by the rally, which was devoid of political content, devoid of emotion, devoid of hope. The driver became more and more upset, and so did Rachel. We felt that if we had not been paying customers, it might have ended in a fight.

The views of our driver can be summed up as follows:

There will never be peace between us and the Arabs, because the Arabs don’t want it.

The Arabs want to slaughter us, always did and always will.

Every Arab learns from early childhood that the Jews must be killed.

The Koran preaches murder.

Fact, wherever there are Muslims, there is terrorism. Wherever there is terrorism, there are Muslims.

We must not give the Arabs one square inch of the country.

What did we get when we gave them Gaza back? We got Qassam rockets!

There’s nothing to be done about it. Only to hit them on the head and send them back to the countries they came from.

According to the Talmudic injunction: He who comes to kill you, kill him first.

This driver expressed in simple and unvarnished language the standard convictions of the great majority of Jews in the country.

It is not something that can be identified with any one part of society. It is common to all sectors.

“Just because you’re paranoid doesn’t mean they aren’t after you,” Joseph Heller wrote and most Israelis believe.

In a way, whether this conviction in a Jewish island surrounded by a sea of enmity has a solid basis in reality is besides the point. If most Israelis believe in the impossibility of peace, that belief itself surely makes peace impossible. But it also begs the question of whether a Jewish state or any other state can have a solid foundation if that foundation is constructed from fear.

Paradoxically, the great demographic threat to Israel may turn out to result from too many Jews — Jews only capable of seeing themselves, their nation and the world through the prism of fear.

For an individual, if fear grows to a proportion where it shapes every feature of their life — if it colors their decisions, their perceptions and everything they think and feel — this is not a way of living but rather a condition that requires treatment. Why should a similar need not equally apply to a whole nation afflicted by the disease of fear?

Many Israelis might counter that so long as the Jewish state can retain its position of regional military supremacy, then it will retain the upper edge in a balance of fear and thus its only concern should be that Israel is able to engender more fear than it suffers. Yet this is the mindset of the survivalist whose fixation on danger has reduced life to the tremors of desperate isolation.

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Separation without separating

Amjad Atallah and Mickey Bergman step outside the confines of a two-state solution whose parameters are supposedly already well understood, and present a new approach that could conceivably meet both Palestinian and Jewish nationalist aspirations. In their outline for a plan, the two states would be defined more in terms of the political rights based on resident status than through an attempt to physically separate the two populations. As with any novel approach to resolving the conflict, its value hinges on a precursor that has yet to happen: a collective acknowledgment that the peace process aimed at a two-state solution has failed.

Introducing a permanent residency status into the toolbox of an agreement can lead to two national states, with two national polities, and clearly defined borders, while not forcing relocation or denial of political rights from those who want to remain in or return to their homes. In essence, separation without separating. Here is how it might work:

    1. Between the Mediterranean Sea and the Jordan River, there will be two national states with clearly defined, internationally recognized borders along the internationally accepted 1967 border.
    2. Each person living in this territory will be able to hold one of two citizenships: Israeli or Palestinian, regardless of which nation state is their place of residence.
    3. It is possible for a citizen of one state to reside in the other, under a clear mutually agreed upon formula between the two states, with a permanent residency status, as exists with a number of states around the world.
    4. Those permanent residents will be allowed to own property, pay taxes, abide by local laws and even vote in municipal elections. Their national political aspirations, however, will be exercised by voting in the elections of their national government.

This concept can allow Israeli-Palestinians to choose their nationality, while maintaining their property, residency and rights. It will allow Jewish settlers, who choose to remain in their homes to do so, while retaining their Israeli citizenship. It will allow Palestinian refugees the right of return, gaining Palestinian citizenship and residing in a location of their choice.

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Pentagon’s Cyber Command seeks authority to expand its battlefield

A defense official quote in this report from the Washington Post says: “Al Qaeda is everywhere.”

That’s the same as saying that anyone who has a blog is “everywhere” — presence on the web is by its nature global. Still, it’s a dubious claim when coming out of the mouth of a US government official because it will inevitably be used to justify the extension of government powers in ways that vastly exceed the size or scope of the threat that they are designed to counter.

The Pentagon’s new Cyber Command is seeking authority to carry out computer network attacks around the globe to protect U.S. interests, drawing objections from administration lawyers uncertain about the legality of offensive operations.

Cyber Command’s chief, Gen. Keith B. Alexander, who also heads the National Security Agency, wants sufficient maneuvering room for his new command to mount what he has called “the full spectrum” of operations in cyberspace.

Offensive actions could include shutting down part of an opponent’s computer network to preempt a cyber-attack against a U.S. target or changing a line of code in an adversary’s computer to render malicious software harmless. They are operations that destroy, disrupt or degrade targeted computers or networks.

But current and former officials say that senior policymakers and administration lawyers want to limit the military’s offensive computer operations to war zones such as Afghanistan, in part because the CIA argues that covert operations outside the battle zone are its responsibility and the State Department is concerned about diplomatic backlash.

The administration debate is part of a larger effort to craft a coherent strategy to guide the government in defending the United States against attacks on computer and information systems that officials say could damage power grids, corrupt financial transactions or disable an Internet provider.

The effort is fraught because of the unpredictability of some cyber-operations. An action against a target in one country could unintentionally disrupt servers in another, as happened when a cyber-warfare unit under Alexander’s command disabled a jihadist Web site in 2008. Policymakers are also struggling to delineate Cyber Command’s role in defending critical domestic networks in a way that does not violate Americans’ privacy.

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Leasehold settlements?

Haaretz reports:

Israel is conducting secret negotiations with the U.S. on establishing the future borders of a Palestinian state, the London-based Arabic language daily Asharq al-Awsat reported on Friday.

According to the report, Palestinian sources confirmed that the two sides discussed an option wherein Israel may lease lands in East Jerusalem from the Palestinians in exchange for the establishment of an independent Palestinian state.

Israel would lease the territories from the Palestinian state for a period of 40 to 99 years.

The Palestinian sources said that the talks are an American initiative that has been going on for some time in order to obtain an understanding with Israel regarding the terms surrounding a future Palestinian state.

The Palestinian Authority apparently has only recently been made aware of the talks and hasn’t been given the details of the proposal.

An Egyptian source told the newspaper that the negotiations are “more quiet than secret, and are meant to try to save the peace process.”

Neither the Prime Minister’s Office nor the U.S. government agreed to comment on the report.

Israel in secret negotiations with the US? I guess this confirms what has long appeared to be the case: that the Palestinians are regarded as being peripheral to the conflict. But I really don’t know what to make of this lease proposal. Britain held Hong Kong on a lease, but once the lease expired Hong Kong went back to China. Somehow I don’t see a Palestinian state ever having quite as much leverage as China. Neither, given its disregard for UN resolutions, do I see Israel feeling a heavy obligation to honor a legal contract limiting its occupation of East Jerusalem. The Israelis’ interests have always seemed to be focused on the so-called facts no the ground rather than legal issues of ownership.

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Lieberman orders a “day after” plan for dealing with a nuclear-armed Iran

Reuters reports:

Hardline Israeli Foreign Minister Avigdor Lieberman has commissioned a report on how to prepare for a nuclear-armed Iran as doubt mounts about the efficacy of preventive action, an Israeli source said on Monday.

Publicly, Israel has pledged to deny the Iranians the means to make a bomb but its previous, centrist government also discreetly drew up “day after” contingency plans should Tehran’s uranium enrichment pass the military threshold.

At the time, rightist opposition leader Benjamin Netanyahu called for Israel to consider preemptive strikes against its arch-foe’s nuclear sites. Now prime minister, Netanyahu has reined in such rhetoric while not ruling out the use of force.

In a sign the government is examining a full range of options, Lieberman, the most hawkish member of Netanyahu’s coalition, has ordered ministry strategists to draft a paper on “what to do if we wake up and discover the Iranians have a nuclear weapon,” said the senior Israeli political source, who declined to be named due to the sensitivity of the matter.

Considering the fact that Israeli leaders have been sounding the alarm about Iran’s “imminent” acquisition of nuclear weapons for over a decade, it’s a bit late in the day to be working on a “day after” plan. Indeed, it suggests rather strongly that despite warning that another Holocaust might be just around the corner, the leaders of a nation protected by its own arsenal of around 200 nuclear weapons has never been quite as afraid of Iran as they claimed.

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Clearing the fog of war in Iraq

The expression “fog of war” evokes both the confusion of the battlefield and the ways in which uncertainty can be used as propaganda tool to obscure the real nature of warfare.

One of the striking things about the statistics that Wikileaks have released is that the leading cause of death which accounts for half the 66,081 civilian deaths recorded between January 2004 and December 2009 is murder. This was not about ordinary people being the random victims of violence — caught in crossfire, or the targets of trigger happy soldiers, or simply being in the wrong place at the wrong time when roadside or car bombs caused carnage. These were extrajudicial executions, in the tens of thousands, occurring under the watch of American and coalition forces.

Patrick Cockburn writes:

From late in 2004 Interior Ministry troops trained by the Americans were taking part in savage raids on Sunni or suspected Baathist districts. People prominent in Saddam Hussein’s regime were arrested and disappeared for few days until their tortured bodies were dumped beside the roads.

Iraqi leaders whispered that the Americans were involved in the training of what were in fact death squads in official guise. It was said that US actions were modelled on counter-insurgency methods pioneered in El Salvador by US-trained Salvadoran government units.

It was no secret that torture of prisoners had become the norm in Iraqi government prisons as it established its own security services from 2004. Men who were clearly the victims of torture were often put on television where they would confess to murder, torture and rape. But after a time it was noticed that many of those whom they claimed to have killed were still alive.

The Sunni community at this time were terrified of mass sweeps by the US forces, sometimes accompanied by Iraqi government units, in which all young men of military age were arrested. Tribal elders would often rush to the American to demand that the prisoners not be handed over to the Iraqi army or police who were likely to torture or murder them. The power drill was a favourite measure of torture. It is clear that the US military knew all about this.

The Guardian reports:

Britain’s role in the alleged torture and unlawful killing of Iraqi civilians may be the subject of legal action following the publication of nearly 400,000 leaked military documents by the website WikiLeaks.

British lawyers said the classified US army field reports embroiled British as well as American forces in an alleged culture of abuse and extrajudicial killings in Iraq. Solicitor Phil Shiner of Public Interest Lawyers, appearing alongside WikiLeaks founder Julian Assange at a press conference in London today, said some of the deaths documented in the reports may have involved British forces and could now go through the UK courts.

The Iraq logs, Shiner said, indicated that UK as well as US commanders were likely to have ignored evidence of torture by the Iraqi authorities, contrary to international law. He said: “Some of these deaths will be in circumstances where the UK have a very clear legal responsibility. This may be because the Iraqis died while under the effective control of UK forces – under arrest, in vehicles, helicopters or detention facilities.”


Al Jazeera reports:

In October 2006, an Iraqi army unit reportedly robbed a number of people living in Sunni neighbourhoods in western Baghdad. The unit was arrested on October 11 – and told its captors that it was operating under the authority of Iraqi prime minister Nouri al-Maliki.

1/5/6 IA patrol stops 2X IA M1114s and 1X pick up truck occupied by 17X LNs in IA uniforms and equipment. 5/6 orders detenftion of all 17 individuals and vehicles due to reports over several days of 2X IA M1114s conducting robberies in the Mansour and Washash areas of 5/6 IA battle space.

[…] Detainees claim to be Iraqi special forces working for the prime minister’s office.

The unit seems to be a sort of “detention squad” operating under al-Maliki’s authority. An official from the defence ministry showed up several hours later and urged the US to release the men, saying their mission was “directed by PM Maliki”.

Politics, unsurprisingly, factors little into these leaked documents: They are ground-level assessments from army units, far removed from the government.

Still, some of the reports paint the Iraqi prime minister in an unflattering light, which may be why al-Maliki and his allies have described them as a smear campaign. “These are all just fakes from the Internet and Photoshop,” Hassan al-Sneid, a member of al-Maliki’s State of Law coalition, said on Saturday.

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The utter failure of multiculturalism?

Germany: third place winners in 2010 World Cup

It wasn’t just Germans who were disappointed to see their team fail to win the 2010 World Cup in South Africa this summer. If this was the team that represented “multi-kulti”, for most of us who had the pleasure of watching their performance, the response was: let’s have more — not: this is an utter failure. Did Angela Merkel so quickly forget?

In The Guardian, Philip Oltermann writes:

Today, when I heard reports of Angela Merkel announcing that multiculturalism had “utterly failed”, my first thoughts were: who is she talking about? I am German, and I have a sister whose three boys are half-Peruvian. My brother’s children are part-Japanese. My partner is English. Were we all utter failures?

“Multi-kulti” covers a grey area somewhere between co-existence and co-operation, and one hopes the German chancellor was trying to speak in favour of team-play and against mere tolerance. My guess is that Merkel wasn’t talking about us, or about Poles, Italians or Greeks living in Germany, but about her country’s 4 million-strong Muslim population – in which case she has still chosen her words terribly badly. The result is a faux pas uncharacteristic of a politician who has won a reputation for treading quietly in matters diplomatic.

So what made her say it? The question over how to integrate Muslim migrants and the rest of German society is hardly new: politicians and commentators have been discussing it ever since the first wave of Gastarbeiter (migrant workers) arrived in the 1960s. If you look at the figures alone, there would be no particular reason to reheat the debate at this time: the number of Turkish immigrants into Germany in 2008 was as low as it had last been in 1983, according to Der Spiegel magazine, and the number of asylum applications is about a sixth of what it was in the mid-90s. More Turks returned to Turkey last year than came to live in Germany, which is actually bad news for the German economy, because with the population forecast to fall by 11.6 million by 2050, the country needs every qualified worker it can get its hands on.

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