Glenn Greenwald's Blog, page 122

Obama's new executive order on Guantanamo

President Obama yesterday signed an Executive Order which, as The Washington Post described it, "will create a formal system of indefinite detention for those held at the U.S. military prison at Guantanamo Bay" and "all but cements Guantanamo Bay's continuing role in U.S. counterterrorism policy." The Order -- which codifies a system of charge-free indefinite detention and military commissions once ostensibly scorned by Democrats -- was captured perfectly by this headline from Time: None of this is the slightest bit unexpected. The new Executive Order has been previewed for months and merely codifies what has long been Obama's policy: "long" in the sense of "since he's inaugurated"  -- not, of course, "when he was a Senator and presidential candidate." I'm writing about this merely to address the excuse from the White House and its loyalists that the fault for this policy, this inability to "close Guantanamo," lies with Congress, which forced the President to abandon his oft-stated campaign pledge. That excuse is pure fiction.

It is true that Congress -- with the overwhelming support of both parties -- has enacted several measures making it much more difficult, indeed impossible, to transfer Guantanamo detainees into the U.S. But long before that ever happened, Obama made clear that he wanted to continue the twin defining pillars of the Bush detention regime: namely, (1) indefinite, charge-free detention and (2) military commissions (for those lucky enough to be charged with something). Obama never had a plan for "closing Guantanamo" in any meaningful sense; the most he sought to do was to move it a few thousand miles north to Illinois, where its defining injustices would endure.

The preservation of the crux of the Bush detention scheme was advocated by Obama long before Congress' ban on transferring detainees to the U.S. It was in May, 2009 -- a mere five months after his inauguration -- that Obama stood up in front of the U.S. Constitution at the National Archives and demanded a new law of "preventive detention" to empower him to imprison people without charges: a plan the New York Times said "would be a departure from the way this country sees itself." It was the same month that the administration announced it intended to continue to deny many detainees trials, instead preserving the military commissions scheme, albeit with modifications. And the first -- and only -- Obama plan for "closing Guantanamo" came in December, 2009, and it entailed nothing more than transferring the camp to a supermax prison in Thompson, Illinois, while preserving its key ingredients, prompting the name "Gitmo North."

None of this was even arguably necessitated by Congressional action. To the contrary, almost all of it took place before Congress did anything. It was Barack Obama's position -- not that of Congress -- that detainees could and should be denied trials, that our court system was inadequate and inappropriate to try them, and that he possessed the unilateral, unrestrained power under the "laws of war" to order them imprisoned for years, even indefinitely, without bothering to charge them with a crime and without any review by the judiciary, in some cases without even the right of habeas review (to see why claims of such "law of war" detention power are so baseless, see the points here, especially point 5).

In other words, Obama -- for reasons having nothing to do with Congress -- worked from the start to preserve the crux of the Bush/Cheney detention regime. Even with these new added levels of detention review (all inside the Executive Branch), this new Executive Order is little more than a by-product of that core commitment, and those blaming it on Congress either have little idea what they're talking about or are simply fabricating excuses in order to justify yet another instance where Obama dutifully "bolsters" the Bush War on Terror template. Indefinite detention and military commissions are continuing because Obama worked from the start for that goal -- not because Congress forced him to do so.

As as happened over and over, while progressives and civil libertarians are furious about the new Order, former Bush officials and right-wing Warriors are ecstatic. The anti-Muslim McCarthyite Rep. Peter King (R-NY) issued a statement this morning, as quoted by The Post, which lavished Obama with praise: "I commend the Obama Administration for issuing this Executive Order. The bottom line is that it affirms the Bush Administration policy that our government has the right to detain dangerous terrorists until the cessation of hostilities." That perfectly captures the legacy of Barack Obama and civil liberties.

It's certainly possible to claim that none of this much matters because other issues are more important. It's coherent to argue that -- everyone has to prioritize what matters most -- but that wasn't an argument I ever heard prior to January 20, 2009, when Democrats generally and Obama specifically aggressively touted these issues for substantial political gain.

Bradley Manning's forced nudity to occur daily

To follow-up on yesterday's observations about the prolonged forced nudity to which Bradley Manning has been subjected the last two days:  brig officials now confirm to The New York Times that Manning will be forced to be nude every night from now on for the indefinite future -- not only when he sleeps, but also when he stands outside his cell for morning inspection along with the other brig detainees.  They claim that it is being done "as a 'precautionary measure' to prevent him from injuring himself."  

Has anyone before successfully committed suicide using a pair of briefs -- especially when under constant video and in-person monitoring?  There's no underwear that can be issued that is useless for killing oneself?  And if this is truly such a threat, why isn't he on "suicide watch" (the NYT article confirms he's not)?  And why is this restriction confined to the night; can't he also off himself using his briefs during the day? 

Let's review Manning's detention over the last nine straight months:  23-hour/day solitary confinement; barred even from exercising in his cell; one hour total outside his cell per day where he's allowed to walk around in circles in a room alone while shackled, and is returned to his cell the minute he stops walking; forced to respond to guards' inquiries literally every 5 minutes, all day, everyday; and awakened at night each time he is curled up in the corner of his bed or otherwise outside the guards' full view.  Is there anyone who doubts that these measures -- and especially this prolonged forced nudity -- are punitive and designed to further erode his mental health, physical health and will?  As The Guardian reported last year, forced nudity is almost certainly a breach of the Geneva Conventions; the Conventions do not technically apply to Manning, as he is not a prisoner of war, but they certainly establish the minimal protections to which all detainees -- let alone citizens convicted of nothing -- are entitled.

The treatment of Manning is now so repulsive that it even lies beyond what at least some of the most devoted Obama admirers are willing to defend.  For instance, UCLA Professor Mark Kleiman -- who last year hailed Barack Obama as, and I quote, "the greatest moral leader of our lifetime" -- wrote last night: 

The United States Army is so concerned about Bradley Manning's health that it is subjecting him to a regime designed to drive him insane. . . . This is a total disgrace. It shouldn't be happening in this country. You can't be unaware of this, Mr. President. Silence gives consent.

The entire Manning controversy has received substantial media attention.  It's being carried out by the military of which Barack Obama is the Commander-in-Chief.  Yes, the Greatest Moral Leader of Our Lifetime and Nobel Peace Prize winner is well aware of what's being done and obviously has been for quite some time.  It is his administration which is obsessed with destroying and deterring any remnants of whistle-blowing and breaches of the secrecy regime behind which the National Security and Surveillance States function.  This is all perfectly consistent with his actions in office, as painful as that might be for some to accept (The American Prospect, which has fairly consistently criticized Obama's civil liberties abuses, the treatment of Manning "torture" and denounced it as a "disgrace").   As former Army officer James Joyner (and emphatic critic of WikiLeaks and Manning) writes:

Obama promised to close Gitmo because he was embarrassed that we were doing this kind of thing to accused terrorists. But he's allowing it to happen to an American soldier under his command?

And I'll say this again:  just fathom the contrived, shrieking uproar from opportunistic Democratic politicians and their loyalists if it had been George Bush and Dick Cheney -- on U.S. soil -- subjecting a whistle-blowing member of the U.S. military to these repressive conditions without being convicted of anything, charging him with a capital offense that statutorily carries the death penalty, and then forcing him to remain nude every night and stand naked for inspection outside his cell.  Feigning concern over detainee abuse for partisan gain is only slightly less repellent than the treatment to which Manning is being subjected.

The serial deceit of Geoff Morrell

(updated below)

New York Times, June 8, 2004:

In the weeks since photographs of naked detainees set off the abuse scandal at Abu Ghraib, military officials have portrayed the sexual humiliation captured in the images as the isolated acts of a rogue night shift. But forced nudity of prisoners was pervasive in the military intelligence unit of Abu Ghraib, so much so that soldiers later said they had not seen "the whole nudity thing," as one captain called it, as abusive or out of the ordinary.

Guantanamo Standard Operating Procedures, December, 2002:

In addition to degradation of the detainee, stripping can be used to demonstrate the omnipotence of the captor or to debilitate the detainee.

Jane Mayer, The Dark Side:

[T]he CIA interrogators also announced they planned to become [Abu] Zubaydah's "God." They reportedly took his clothing as punishment, and reduced his human interaction to a single daily visit in which they would say simply, "You know what I want," and then leave.

The New York Times, yesterday:

A lawyer for Pfc. Bradley Manning, the Army intelligence analyst accused of leaking secret government files to WikiLeaks, has complained that his client was stripped and left naked in his cell for seven hours on Wednesday. . . . The soldier's clothing was returned to him Thursday morning, after he was required to stand naked outside his cell during an inspection. . . . First Lt. Brian Villiard, a Marine spokesman, said a brig duty supervisor had ordered Private Manning's clothing taken from him.

 * * * * *

On January 26, 2011, Defense Department spokesman Geoff Morrell stood before the Pentagon press corps and made a series of patently false statements about Bradley Manning (the video is here).  Even taking into account the position Morrell occupies -- in which a penchant for telling the truth is not exactly a job requirement (it actually would be disqualifying) -- this Press Conference was an extraordinary display of pure official mendacity.  

Morrell was asked several times about the evidence -- first reported here -- that Manning was being held in repressive and inhumane conditions:  specifically, 23-hour/day solitary confinement, a prohibition on exercising in his cell, and being allowed out only 1 hour per day to "exercise" which entails walking around alone in a room, shackled.  Morrell repeatedly insisted that everything being done to Manning was being done to all of the other detainees at the brig; in his words:

he is being treated just like every other detainee in the brig. . . . assertions by liberal bloggers, or network reporters or others that he is being mistreated, or somehow treated differently than others, in isolation, are just not accurate . . . Just as though he is not being treated any worse than any other detainee, he is not being treated any better than any other detainee. . . . He is being treated exactly like everyone else in the brig is being treated. . . . what I come back to time and time again, Chris, is the notion that the manner of his confinement is not in the least different from the manner in which anyone else at the brig is being held. . . . that is consistent with how every other person in the brig is being held.

To describe those statements as "misleading" is to be extremely generous.  Morrell's claims were the opposite of reality:  factually and demonstrably false.   Manning was the only detainee being held under those conditions, the exact opposite of what Morrell told the public.  As Lt. Col. David Coombs, Manning's counsel, detailed that day:

Morrell stated during today's Pentagon briefing that PFC Manning's "confinement is not in the least different from the manner in which anyone else at the brig is being held."  This statement is patently false. . . .

Under the above restrictions, every other detainee is allowed outside of their cell for the majority of the day. The facility is not locked down when they are walking in the brig. They do not wear hand and leg restraints outside of their cell. They are not escorted by guards when outside of their cell. Every other detainee is assigned to work details during the day. These work details allow them move freely within the facility and also outside of the facility whenever within the security perimeter. . . .

Due to the POI watch, [Manning] is held in solitary confinement. For 23 hours per day, he sits in his cell. The guards check on him every five minutes by asking him if he is okay. He is required to respond in some affirmative manner. At night, if the guards can not see him clearly, because he has a blanket over his head or he is curled up towards the wall, they will wake him in order to ensure that he is okay. He receives each of his meals in his cell. He is not allowed to have a pillow or sheets. He is not allowed to have any personal items in his cell. He is only allowed to have one book or one magazine at any given time to read. The book or magazine is taken away from him at the end of the day before he goes to sleep. He is prevented from exercising in his cell. If he attempts to do push-ups, sit-ups, or any other form of exercise he will be forced to stop. He receives one hour of exercise outside of his cell daily. The guards take him to a room and allow him to walk. He usually walks in figure eights around the room. When he goes to sleep, he is required to strip down to his underwear and surrender his clothing to the guards.

Every other detainee is not subjected to constant monitoring or asked if they are okay every five minutes. Every other detainee is allowed to have sheets and a pillow. Every other detainee may have personal items in their cell. Every other detainee may have paper and pens in their cell in order to write to family and friends. Every other detainee may have any combination of 15 books or magazines in their cell at all times. Any other detainee can exercise in their cell during the day. No other detainee has to strip to their underwear at the end of the day and surrender their clothing to the guards. 

Is there any way to compare the facts to the multiple statements made to the media by Morrell -- e.g., Manning " is being treated exactly like everyone else in the brig is being treated" -- and reach any conclusion other than that Morrell is a completely deceitful and untrustworthy individual?

Yesterday, Morrell went on MSNBC to be interviewed by Chuck Todd and Savannah Guthrie about a variety of topics, including the conditions of Manning's detention -- and by "interviewed," I mean:  have a series of open-ended questions reverently posed to him without the slightest challenge to a word he uttered.  Guthrie touted beforehand her intent to ask Morrell about Manning, but despite being told before the interview about the series of deceitful statements, and despite the fact that she should have been independently aware of that episode as a journalist preparing to interview the Pentagon spokesman, Morrell's false statements were, needless to say, never brought up.

Instead, typifying what Jay Rosen calls "the death of the watchdog press," Todd and Guthrie posed a few innocuous, open-ended questions to him and then allowed him to spout his talking points without being challenged about anything.  Just as Bush officials used to do when asked about Guantanamo, Morrell proudly announced that he had just visited the brig and was so very impressed with the "professionalism" of how detainees are imprisoned.   Just as Bush officials so often did, he dismissed objections this detainee mistreatment as coming from nothing more than "some on the far left, a couple of wesbites in particular, and one of the shows on this network" (are Amnesty International and the U.N. Rapporteur on Torture  "far left websites"?  and note how often Obama officials adopt the Fox-News/Bush-follower slur of dismissing their critics (on detainee abuse and otherwise) as those on "the far Left")?  But this time, Morrell -- directly contrary to his unambiguous claims in his January press briefing, was forced to acknowledge that Manning (whose conduct he said has been "exemplary") suffers restrictions to which none of the other detainees are subject (except one, he claimed).  Despite all that, Morrell smugly insisted that, based on his visit, the conditions of Manning's detention were perfectly appropriate and correct.

Morrell chose a very bad day to go on MSNBC with his subservient journalistic pets to invoke his Potemkin Village defense of Manning's detention.  Literally hours later, Lt. Col. Coombs detailed the forced nudity to which Manning had been subjected the night before and described how "Manning has been told that the same thing will happen to him again tonight. "  He added that "this type of degrading treatment is inexcusable and without justification," that "it is an embarrassment to our military justice system," and that "no other detainee at the Brig is forced to endure this type of isolation and humiliation."  James Joyner -- a former Army Captain and relentless critic of WikiLeaks and Manning -- added his own righteous condemnation of this conduct, accurately noting:  "This treatment would be an international scandal if done to an accused terrorist at Gitmo or to a convicted criminal on death row. "

Brig officials refuse to say why they forced Manning to remain nude, telling the NYT that Manning's "privacy" rights precluded comment (these are the same people who forced Manning to remain nude for hours and then stand that way for inspection; now they cite concerns for his "privacy" as to why they can't comment on why they did it).  Recall that in late January, NBC News' Jim Miklaszewski reported that the brig commander had violated the military's rules by placing Manning on "punitive" suicide watch even after two psychiatrists concluded he was not a suicide risk; the commander was replaced shortly thereafter.  And, as Joyner notes, to the extent that Manning has suffered a decline in his psychological and emotional state -- as Manning's friend, David House, has been warning for months -- it's because he's been held in patently inhumane and repressive conditions for 10 straight months now despite being convicted of absolutely nothing, with no end in sight.

It's long been clear that the Obama administration is subjecting Manning to this treatment in order to break him and thus induce the type of incriminating statements they need to build a conspiracy case against their real targets:   WikiLeaks and Julian Assange.   Moreover, the Obama administration's unprecedented obsession with deterring and punishing whistle-blowers is undoubtedly motivating much of this punitive conduct as well.  

Whatever the motives, charging a whistle-blower with a capital offense of "aiding the enemy," sticking him for almost a full year in repressive solitary confinement, and then forcing him to remain nude in captivity, is the type of abusive detainee treatment that caused substantial political controversy during the Bush years.  Now, by stark contrast, the silence is deafening.

* * * * *

Morrell -- a former ABC News reporter before joining the Pentagon during the Bush administration -- is one of those countless Beltway officials who seamlessly travel back and forth between government positions and "journalism."   As his extremely amiable chat with Chuck and Savannah demonstrates, there is very little difference between the role played by establishment journalists and government spokespeople, which is why they're able so easily to move back and forth between the two.  And -- as his "far left" slurs and his Bush-like "I-visited-the-detention-facility-and-was-so-impressed-with-its-professionalism" defense demonstrates -- he's also one of those many, many bipartisan National Security State officials in Washington who fit every bit as comfortably in a Republican administration as they do in a Democratic one (just like his boss, former Bush and current Obama Pentagon chief Robert Gates).

UPDATE:  Coombs reports that Manning was forced into nudity again last night, and adds:

This treatment is even more degrading considering that PFC Manning is being monitored -- both by direct observation and by video -- at all times. The defense was informed by Brig officials that the decision to strip PFC Manning of all his clothing was made without consulting any of the Brig's mental health providers.

Let's try to fathom the uproar and politically opportunistic protests from Democrats if it were the Bush administration treating an American whistle-blowing member of the military -- on U.S. soil -- in this manner.

Bradley Manning could face death: For what?

(updated below)

The U.S. Army yesterday announced that it has filed 22 additional charges against Bradley Manning, the Private accused of being the source for hundreds of thousands of documents (as well as this still-striking video) published over the last year by WikiLeaks. Most of the charges add little to the ones already filed, but the most serious new charge is for "aiding the enemy," a capital offense under Article 104 of the Uniform Code of Military Justice. Although military prosecutors stated that they intend to seek life imprisonment rather than the death penalty for this alleged crime, the military tribunal is still empowered to sentence Manning to death if convicted.

Article 104 -- which, like all provisions of the UCMJ, applies only to members of the military -- is incredibly broad. Under 104(b) -- almost certainly the provision to be applied -- a person is guilty if he "gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly" (emphasis added), and, if convicted, "shall suffer death or such other punishment as a court-martial or military commission may direct." The charge sheet filed by the Army is quite vague and neither indicates what specifically Manning did to violate this provision nor the identity of the "enemy" to whom he is alleged to have given intelligence. There are, as international law professor Kevin Jon Heller notes, only two possibilities, and both are disturbing in their own way.

In light of the implicit allegation that Manning transmitted this material to WikiLeaks, it is quite possible that WikiLeaks is the "enemy" referenced by Article 104, i.e., that the U.S. military now openly decrees (as opposed to secretly declaring) that the whistle-blowing group is an "enemy" of the U.S. More likely, the Army will contend that by transmitting classified documents to WikiLeaks for intended publication, Manning "indirectly" furnished those documents to Al Qaeda and the Taliban by enabling those groups to learn their contents. That would mean that it is a capital offense not only to furnish intelligence specifically and intentionally to actual enemies -- the way that, say, Aldrich Ames and Robert Hanssen were convicted of passing intelligence to the Soviet Union -- but also to act as a whistle-blower by leaking classified information to a newspaper with the intent that it be published to the world. Logically, if one can "aid the enemy" even by leaking to WikiLeaks, then one can also be guilty of this crime by leaking to The New York Times.

The dangers of such a theory are obvious. Indeed, even the military itself recognizes those dangers, as the Military Judges' Handbook specifically requires that if this theory is used -- that one has "aided the enemy" through "indirect" transmission via leaks to a newspaper -- then it must be proven that the "communication was intended to reach the enemy." None of the other ways of violating this provision contain an intent element; recognizing how extreme it is to prosecute someone for "aiding the enemy" who does nothing more than leak to a media outlet, this is the only means of violating Article 104 that imposes an intent requirement.

But does anyone actually believe that Manning's intent was to ensure receipt of this material by the Taliban, as opposed to exposing for the public what he believed to be serious American wrongdoing and to trigger reforms? Indeed, in the purported chat logs between Manning and government informant Adrian Lamo, Lamo asked Manning why he didn't sell this information to a foreign government and get rich off it, and this is how Manning replied:

because it's public data. . . . it belongs in the public domain -information should be free - it belongs in the public domain - because another state would just take advantage of the information… try and get some edge - if its out in the open . . . it should be a public good

This prosecution theory would convert acts of whistle-blowing into a hanging offense.

Worse still, whatever Manning's behavior was in terms of "aiding the enemy," that exact same behavior was engaged in by The New York Times, The Guardian, and numerous other newspapers that published these classified documents and thus enabled the Taliban, Al Qaeda and all the other Enemies Du Jour to access them. As Professor Heller put it:

If Manning has aided the enemy, so has any media organization that published the information he allegedly stole. Nothing in Article 104 requires proof that the defendant illegally acquired the information that aided the enemy. As a result, if the mere act of ensuring that harmful information is published on the internet qualifies either as indirectly "giving intelligence to the enemy" (if the military can prove an enemy actually accessed the information) or as indirectly "communicating with the enemy" (because any reasonable person knows that enemies can access information on the internet), there is no relevant factual difference between Manning and a media organization that published the relevant information.

As Heller notes, since the UCMJ applies only to members of the military, newspapers (or WikiLeaks) couldn't actually be charged under Article 104; still, "there is still something profoundly disturbing about the prospect of convicting Manning and sentencing him to life imprisonment [GG: or the death penalty] for doing exactly what media organizations did, as well." It's true that members of the military have legal duties that others do not have -- including the duty not to leak classified information -- but this incredibly expansive interpretation of what it means to "aid the enemy" dangerously encompasses all sorts of legitimate press and speech activities, especially when combined with the Obama administration's escalating war on whistle-blowing and the journalists who expose government secrets. This is yet another step in infecting the law with doctrines of Endless War and its accompanying mentality.

* * * *

The Manning controversy tracks almost perfectly the one from 40 years ago involving Daniel Ellberg's leak of thousands of pages of the Top Secret Pentagon Papers. Not even Manning's most ardent defenders deny that he broke the law if he was actually the leaker (just as nobody denies that Ellsberg broke the law).

Nonetheless, the notion that Daniel Ellberg's leak was noble and justified has become consecrated orthodoxy among most Democrats, progressives and even among the American media -- because it's very easy to cheer on challenges to authority and political power from four decades earlier, when the targets of the whistle-blowing no longer wield power. Yet even though Manning's actions are so similar to Ellsberg's both in intent and effect -- as Ellsberg himself has repeatedly stated -- the reaction to Manning is radically different: both because Manning's actions challenge the policy of current authorities who actually wield power now and because it's a Democratic President prosecuting him. That Ellsberg is viewed as a hero while Manning is viewed as a death-deserving villain makes no logical sense.

It's at least intellectually coherent (though quite misguided) to see both Ellsberg and Manning as criminal demons who deserve to be locked away forever (the same things said now to condemn Manning were said back then about Ellsberg, including from the Supreme Court: "revelation of [the Pentagon Papers] will do substantial damage to public interests," wrote Justice White. But it's incoherent in the extreme to praise Ellsberg while condemning Manning (particularly since everything Manning is accused of leaking bears a much lower secrecy designation than the massive amounts of Top Secret material leaked by Ellsberg).

Critically, if one believes the authenticity of the purported Manning/Lamo chat log snippets selectively released by Wired, then Manning was very clear about why he decided to leak these materials: he sought to trigger worldwide reforms of government wrongdoing exposed by these documents:

Lamo: what's your endgame plan, then?. . .

Manning: well, it was forwarded to [WikiLeaks] - and god knows what happens now - hopefully worldwide discussion, debates, and reforms - if not, than [sic] we're doomed - as a species - i will officially give up on the society we have if nothing happens - the reaction to the [Baghdad Apache attack] video gave me immense hope; CNN's iReport was overwhelmed; Twitter exploded - people who saw, knew there was something wrong . . . Washington Post sat on the video… David Finkel acquired a copy while embedded out here. . . . - i want people to see the truth . . . regardless of who they are . . . because without information, you cannot make informed decisions as a public.

This leaves little doubt about Manning's motives. And there is also little doubt that Manning has achieved those ambitious and noble goals on multiple levels. Although the extent is reasonably in dispute, even WikiLeaks' most embittered antagonists -- such as New York Times Executive Editor Bill Keller -- acknowledge that the release of the diplomatic cables played some role in the uprising in Tunisia, which in turn sparked similar uprisings of historic significance throughout the Middle East. From Keller:

For those who do not follow these subjects as closely, the stories are an opportunity to learn more. If a project like this makes readers pay attention, think harder, understand more clearly what is being done in their name, then we have performed a public service. And that does not count the impact of these revelations on the people most touched by them. WikiLeaks cables in which American diplomats recount the extravagant corruption of Tunisia's rulers helped fuel a popular uprising that has overthrown the government.

Beyond that, the documents Manning is alleged to have leaked have revealed a wide range of corruption, deceit and illegality by government officials around the world. They have forced Americans to confront the realities of the wars they endlessly wage and support. And it is virtually impossible to read news articles about any significant event in the Middle East without encountering references to important information revealed by WikiLeaks documents.

In sum, if one believes the allegations and the chat logs, Manning's actions have already led to many of the "reforms" and increased awareness he hoped to achieve. Thus do we have the strange spectacle of Americans cheering on the democratic uprisings in the Middle East and empathizing with the protesters, all while revering American political leaders who for years helped sustained the dictatorships which oppressed them and disdaining those (Manning) who may have played a role in sparking the protests. More revealingly, American political leaders responsible for grave atrocities (like this and this and this) are treated like peace-loving statesmen and honored dignitaries, while those who heroically risk their lives to expose and end that wrongdoing (Manning, and Ellsberg before him) are thrown into a cage, threatened with death, and scorned by All Decent People.

Part of what explains that is just the standard authoritarian mindset: even heinous acts committed under sanction of officialdom are treated as inherently legitimate, while those who challenge those authorities are scorned. But there's something broader that accounts for the almost universal disdain directed at Manning: these leaks showed us the true face of American conduct in the world. Those who reveal truths which most people would prefer to ignore are typically hated, and are often those most severely punished.

* * * * *

As a reminder:  Manning -- convicted of nothing -- continues to be held in 23-hour/day, highly repressive solitary confinement; despite protests from Amnesty International, a formal investigation by the U.N.'s top torture official, and the replacement of the brig commander, Manning has been held that way for ten straight months, with no change in sight.

 

UPDATE:  Two briefs points to underscore the key issues here.  First, Richard Nixon -- when justifying the attacks on Daniel Ellsberg -- denounced him for having provided ""aid and comfort to the enemy."  As usual, the more things "change," . . .

And then there's this question I posed on Twitter:

Growing anti-Muslim hatred in the U.S.

(updated below)

Next week, House Homeland Security Committee Chairman Peter King (R-NY) will convene a Congressional hearing to investigate the loyalty and "radicalization" of American Muslims.  Earlier this week in Tennessee, a bill was proposed to make it a felony to follow sharia law -- which would essentially criminalize the practice of Islam in that state.  Last year, mosques in Tennessee, Oregon and Georgia were targeted with apparent arson.  The case against the Park51 community center -- including from mainstream TV journalists -- was grounded in the warped premise that Muslims generally bore guilt for the 9/11 attacks.   All of these sentiments  are regularly bolstered by a deranged cult-leader/TV personality followed by millions.

And last month, in Orange County, California, Tea Party members and other protesters bombarded a charity event sponsored by a Muslim group -- and the families of American Muslims entering the event -- with the most foul, hateful, threatening messages possible, while various politicians, including a member of Congress, praised the protesters.  Just please watch this video, compiled by CAIR-California, to get a taste of what is happening (you can watch it below or here):

Several months ago, I wrote about the "odiousness of the distorted Godwin's law":  the corrupt notion that anything and everything relating to the events that enabled Nazi Germany are off-limits in political discussion, that the entire historical matter is just blacked out and rendered taboo.  This understanding of that "law" is odious because learning from all historical episodes, including that one, is vital.  Indeed, the creator of this "law" -- Mike Godwin -- appeared in the comment section to that post to explain that he sought not to prevent all comparisons to the Germany of that era but only "glib comparisons," noting:  "The purpose of Godwin's Law is to provoke remembering, not forgetting (and certainly not silence)."

Regardless of what one believes about that comparison, to note the similarity between then and what's happening now -- laws to criminalize a minority religion, formal government investigations into disloyalty from a minority group, violent attacks on their place of worship, and the intensity of the hate-mongering evidenced by that disgusting video -- is anything but "glib."  The Southern Poverty Law Center recently declared that Pamela Geller and her band of twisted anti-Muslim hatemongers constitute a "hate group."  It's encouraging that SPLC is taking this growing menace that seriously; everyone should be.

 

UPDATE:  I think what was most striking about that video is that the presence of small children didn't give these anti-Muslim protesters even momentary pause; they just continued screeching their ugly invective while staring at 4-year-olds walking with their parents.  People like that are so overflowing with hatred and resentments that the place where their humanity -- their soul -- is supposed to be has been drowned.  

Chris Dodd shows how Washington works

Over the last two years -- particularly during the debate over the financial reform bill -- Sen. Chris Dodd served on multiple occasions as chief spokesman for, and defender of, the interests of Wall Street and corporate America.  That led to widespread speculation that the five-term Connecticut Senator, who announced that he would not seek re-election in 2010 in the wake of allegations of improper benefits from Countrywide Financial, was positioning himself for a lucrative post-Senate lobbying job -- i.e., peddling the influence and contacts he compiled over five decades in "public service." 

Dodd responded to those suggestions by repeatedly and categorically insisting that he would not work as a lobbyist.  In March of last year, he told The Hartford Courant that "he will not lobby, but, like [former Senators Chuck] Hagel and [Sam] Nunn, he may teach."  In an August article headlined "Dodd forswears a lobbying career," The Connecticut Mirror quoted him as saying:  "No lobbying, no lobbying."  That vow earned this praise from Public Citizen's Craig Holman:  "That's excellent on Senator Dodd's part."  

Here's what Chris Dodd's word and integrity are worth, :

Dodd to be Hollywood's top man in Washington

Former Sen. Chris Dodd (D-Conn.) will be Hollywood's leading man in Washington, taking the most prestigious job on K Street.

The Motion Picture Association of America (MPAA) named Dodd chairman and CEO on Tuesday. But heading Hollywood's lobbying arm could be problematic for the former senator, who accepted the kind of job he pledged not to take. . . .

Dodd's hiring, which had been rumored for weeks, ends months of media speculation regarding who would take one of the most glamorous jobs on K Street, whose perks include a $1.2 million-a-year salary and getting to attend the Academy Awards ceremony.

Dodd is barred from formally working himself as a lobbyist for two years after leaving the Senate, but the core purpose of his new job is to oversee lobbying activities and to convert his influence and inside knowledge of Washington into favorable legislation and desired regulatory action (or inaction) for the MPAA.  Dodd is replacing another long-time DC official paid to peddle his influence:  Dan Glickman -- the former 9-term Democratic Congressman from Kansas and Clinton administration Agriculture Secretary.  Leaving no doubt about what the MPAA seeks in this position -- a politician willing to sell his connections to the highest bidder -- the association chose Dodd only after it was unsuccessful in recruiting former Sen. Bob Kerrey.

Other than the blatant violation of his pledge, there is, of course, nothing unusual about Dodd's sleazy feeding at the trough through legalized influence-peddling.  It's how Washington works.  Holman's Public Citizen group circulates "Integrity Pledges" asking retiring members of Congress to find something else to do besides lobbying on the ground that, as Holman put it when praising Dodd's (worthless) no-lobbying pledge last year:

The revolving door abuse is just out of control here on Capitol Hill and it is a primary source of undue influence peddling, Only the very wealthy businesses can afford senators and congressmen.

This, of course, is the whole point.  So much energy and chatter is spent fixating on partisan wars and election victories, but this is the real process that determines policy outcomes.  How can ordinary Americans possibly compete with corporations that can purchase the Chris Dodds of the world from both parties, who then dutifully use their decades of influence to foster the legislative and executive outcomes their owners want?   Obviously, they can't and don't, which is another way of saying that democracy exists in name only; to say that "only the very wealthy businesses can afford senators and congressmen" is another way of describing oligarchy.

This is why I found Charles Koch's Monday Wall Street Journal Op-Ed so darkly amusing.  To justify the ugly spectacle of billionaires and TV millionaries endlessly demanding "sacrifices" from America's middle and lower classes -- by, for instance, suffering cuts in their Social Security and Medicare safety nets -- Koch tried to insist that he wants the sacrifice to be shared equally by everyone:

There have been few serious proposals for necessary cuts in military and entitlement programs, even though these account for about three-fourths of all federal spending.

Too many businesses have successfully lobbied for special favors and treatment by seeking mandates for their products, subsidies (in the form of cash payments from the government), and regulations or tariffs to keep more efficient competitors at bay.

Crony capitalism is much easier than competing in an open market. But it erodes our overall standard of living and stifles entrepreneurs by rewarding the politically favored rather than those who provide what consumers want.

That's all lovely in theory, but significant defense spending cuts and curbs on "crony capitalism" -- as Koch well knows -- will never happen absent some serious social unrest, precisely because the factions which benefit from them own all the influence in Washington, thanks to their purchase of people like Chris Dodd.  Only the politically powerless -- meaning the nation's middle and lower classes -- will involuntarily "sacrifice" because they can't afford to purchase the influence necessary to defend their interests in this battle over diminishing resources (and, of course, the only large entity capable of providing some minimal counterweight to this lopsided power imbalance -- unions -- happens to be the current target for destruction of the groups with which Koch most identifies).  That even Good, Liberal Democratic Politicians like Chris Dodd -- who has done some decent things in his career -- scamper out of the Senate to the nearest feeding hole, all to accelerate this process, underscores how potent a process it is.

* * * * *

Speaking of those feeding at the trough, The New York Times documents today the slew of highly-regarded lobbyists from both parties -- including John Podesta's brother, Tony -- who lobby on behalf of the Middle Eastern dictators who are the Villains of the Month.  It's amazing how easily the media reconciled its Middle East morality narrative (These Dictators are the Devils!!) with the fact that so many of American political elites -- both in and out of government -- have spent years keeping those very villains in power.

* * * * *

As I noted yesterday, for the week of March 7, I'll be speaking at several events in New Mexico and Texas; details are here.

Shifting editorial standards

(updated below - Update II)

After the Bush administration implemented a worldwide torture regime, The New York Times (and many other American media outlets) infamously -- and so very courageously -- refused to use the word "torture" to describe what was done.  Their excuse was that there was a "debate" over whether the authorized tactics were in fact torture, and media outlets should not take sides in that debate.

Earlier today, Ian Hislop, editor of a magazine called Private Eye, published a lengthy article recounting what he claims are anti-Jewish remarks made to him by Julian Assange in a private telephone call (meaning a call in which only Hislop and Assange participated).  Hislop claims that Assange complained that an earlier Private Eye story about a Holocaust-denying, Russian WikiLeaks volunteer was part of an anti-Wikileaks conspiracy orchestrated by several Jewish editors and reporters at The Guardian, with whom Assange has been feuding.  

Assange vehemently denies the story as asserted by Hislop -- both its particulars and its general claims.  WikiLeaks, on its Twitter feed, quoted Assange as stating that "Hislop has distorted, invented or misremembered almost every significant claim and phrase"; that the "'Jewish conspiracy' [claim] is false, in spirit and in word. It is serious and upsetting"; and that "we treasure our strong Jewish support and staff, just as we treasure the support from pan-Arab democracy activists and others who share our hope for a just world."

So let's survey what we have:  Ian Hislop is making uncorroborated assertions about his conversation with Assange, while Assange is vehemently denying his claims.  Despite this he-said/he-said conflict -- which no known evidence can remotely resolve -- this is how The New York Times presented the story to its readers in its headline today:

I have no idea whether Assange said some, all or none of what's attributed to him by Hislop.  In my multiple interactions with him, I've never detected even a smidgen of such sentiments; that doesn't mean he didn't say these things:  it merely means what it means.   But The New York Times also has no idea whether Assange said any of this, yet they categorically announce in their headline -- as though it's a proven fact -- that Assange "Complain[ed] of a Jewish Smear Campaign."  Whether that actually happened is very much in dispute, and -- unlike the "torture" controversy, where it was established by decades of case law and the U.S.'s own pronouncements that Bush officials authorized torture -- the NYT has no basis whatsoever for resolving this dispute in favor of the accuser.  While the body of the article does note Assange's denial, the whole story is told from the perspective of Hislop, and the headline constitutes a baseless NYT endorsement of his version.

All of this relates directly to the journalistic biases discussed here yesterday.  Journalists and editors love to endlessly tout their own objectivity, yet their editorial conduct is so often driven by their sentiments and allegiances toward the parties involved in the story (just yesterday, the NYT used the word "torture" to describe Zimbabwe's actions because, it is claimed, "a dozen [] activists had been beaten with broomsticks, metal rods and blunt objects on their bodies and the soles of their feet" -- just as they freely apply the word to that's not the U.S.).  Nobody -- not even the Guardians of the National Security State -- loathes Assange the way that journalists do; recall that they led the way in condemning him and calling for his prosecution for doing what they're supposed to do.  These Beacons of Objectivity thus use entirely different editorial standards -- far more unfavorable ones -- when reporting on him.

* * * * * 

In his statement today, Assange suggested the various campaigns to discredit him (including the new one today) are similar in kind to the recently revealed HB Gary schemes to destroy the reputations of his group and its supporters.  About that story, there are several recent developments:  (1) Aaron Barr, the CEO of HB Gary Federal resigned yesterday as a result of his involvement in this scandal; (2) The Washington Post reports today that numerous House Democrats have called for a Congressional investigation into the role played in these schemes by D.C. powerhouse lobbying and law firm Hunton & Williams; and (3) several ethical grievances have now been filed against Hunton & Williams partners involved in these schemes, which -- now that they are forced to respond -- should result in the disclosure of far more detailed information about what that firm did and what happened with these proposals.

 

UPDATE:  For those in New Mexico and Texas:  I'll be speaking at several events during the week of March 7 which are open to the public; details are here.

 

UPDATE II:  A commenter points out that Salon's article on this story does much the same thing in its headline as the NYT does, and indeed that's true (Salon: "Julian Assange says 'Jewish' conspiracy behind WikiLeaks smear campaign:  The WikiLeaks founder claims a 'Jewish' conspiracy is attempting to smear his organization").  Obviously, my critique applies equally to that headline.

The nationalism bias of journalists

Former Bush OLC official Jack Goldsmith defends the decision of The New York Times and several other American media outlets to conceal from their readers that Raymond Davis worked for the CIA -- even though those papers published President Obama's misleading description of him as "our diplomat in Pakistan" and the NYT told its readers about what it deceitfully called "the mystery about what Mr. Davis was doing with this inventory of gadgets."  This concealment stands in stark contrast to The Guardian, which quickly told the truth about Davis to its readers.  But what's most notable is Goldsmith's reasoning.  He argues that this concealment reflects the fact that American national security reporters are "patriotic" -- by which he means they are driven by a desire to protect American "interests" -- and this, he believes, is a good thing:

This is an example of an underappreciated phenomenon: the patriotism of the American press. For a book I am writing, I interviewed a dozen or so senior American national security journalists to get a sense of when and why they do or don't publish national security secrets. They gave me different answers, but they all agreed that they tried to avoid publishing information that harms U.S. national security with no corresponding public benefit. Some of them expressly ascribed this attitude to "patriotism" or "jingoism" or to being American citizens or working for American publications. This sense of attachment to country is what leads the American press to worry about the implications for U.S. national security of publication, to seek the government's input, to weigh these implications in the balance, and sometimes to self-censor. (This is a natural and prudent attitude in a nation with the fewest legal restrictions in the world on the publication of national security secrets, but one abhorred by critics like Greenwald.)  The Guardian, al Jazeera, and Wikileaks, by contrast, worry much less, if at all, about U.S. national security interests. . . .

As General Michael Hayden said last year in his comments on Gabriel Schoenfeld's fine book on national security secrecy, the government is "kind of out of Schlitz" when trying to persuade the foreign media not to publish a national security secret. American journalists display "a willingness to work with us," he said, but with the foreign press "it's very, very difficult."

Note that Goldsmith isn't merely pointing out that American journalists are "patriotic" or "jingoistic" as individuals.  He's saying that these allegiances shape their editorial judgments.  And "patriotism" to Goldsmith doesn't merely mean some vague type of "love of country," but much more:  this "sense of attachment" creates a desire to advance "U.S. national security interests," however the reporter perceives of those.

Leave aside just for the moment the question of whether it's good or bad for American journalists to allow such nationalistic allegiances to mold their journalism.  One key point is that allowing such loyalties to determine what one reports or conceals is a very clear case of bias and subjectivity:  exactly what most reporters vehemently deny they possess.  Many establishment journalists love to tout their own objectivity -- insisting that what distinguishes them from bloggers, opinionists and others is that they simply report the facts, free of any biases or policy preferences.  But if Goldsmith is right -- and does anyone doubt that he is? -- then it means that "the American press" generally and "senior American national security journalists" in particular operate with a glaring, overwhelming bias that determines what they do and do not report:  namely, the desire to advance U.S. interests. 

Indeed, Goldsmith's main point is that media entities that are free of this bias (he names The Guardian, Al Jazeera and WikiLeaks) are willing to disclose truths which "patriotic" American media outlets will conceal.  That, of course, is exactly what happened in the Davis case, and in so many other episodes as well.  Bizarrely, Goldsmith believes he's defending the American media by arguing that subjective policy goals and nationalistic loyalty are what drives their reporting.  But that "defense" is squarely at odds with how most reporters hold themselves out to the public:  as beacons of journalistic objectivity who do not allow their opinions or outcome preferences to shape what they report.  Goldsmith's factual premise is certainly correct:  nationalistic bias is a central ingredient in how American national security journalists and their editors "report" the news.

This was exactly the point I made the other day when highlighting a passage from NYT Executive Editor Bill Keller in his long article about Wikileaks and Julian Assange, in which he explained why the NYT published WikiLeaks documents.  Keller assured the public that -- despite publication of these documents -- "the journalists at The Times have a large and personal stake in the country's security" and are thus "invested in the struggle against murderous extremism."  Keller understands the War on Terror -- in which, he said, the NYT sides with the U.S. -- as one "directed not just against our people and our buildings but also at our values and at our faith in the self-government of an informed electorate."  

Keller -- without even realizing it -- has ingested a whole slew of biases about the War on Terror:  that it's about a "struggle against murderous extremism"; that the Iraq and Afghanistan wars -- the subjects of the WIkiLeaks documents -- are designed to enhance "the country's security"; that The Terrorists hate us for our freedoms; that the War on Terror makes us safer; and that the U.S. is one of the Good Guys in the world (or at least the ones who deserve the allegiance of the NYT).  One is perfectly entitled to agree or disagree with Keller's premises, but whatever it is, that outlook is anything but "objective."

And now we arrive at the question of whether reporters ought to have these nationalistic biases.  There's certainly nothing wrong with journalists, as individuals, harboring feelings of patriotism or any other political outlook -- as long as it doesn't interfere in their journalistic duties.  One such duty is to inform their readers of what's newsworthy and to avoid misleading them; another key duty is to serve as an adversarial check on those in political power ("the Fourth Estate") rather than dutifully serving as their stenographers and propagandists.  And here is where Goldsmith's claims about what motivates these reporters becomes so problematic.

A desire to promote American policy or its "interests" will often directly conflict with core journalistic obligations.  It's often the case that disclosing the truth about the American government (a journalistic duty) will undermine the government's policy aims or subvert government "interests."  The same is true for serving as an adversarial watchdog on government officials: exposing their false statements and lies, uncovering their corruption and deceit, contradicting their propaganda; doing that can also undermine American interests.  Reporters who engage in journalism with the goal of advancing U.S. interests or promoting their nationalistic allegiance -- which Goldsmith suggests is the majority of them -- are engaged in activism and propaganda, not adversarial journalism.  That's fine, I suppose, if they acknowledge their biases, but those who are driven by these allegiances while pretending to be "objective" are engaged in a game of deceit.

Ultimately, the most important point here may be Goldsmith's recognition that the biases and concealments of the American media are becoming increasingly irrelevant.   That's because, as he explains, "the growing scrutiny of American military and intelligence operations by an increasingly powerful global media that is relatively indifferent to U.S. national security interests is an important reason why U.S. national security secrets are harder than ever to keep."  This is also why WikiLeaks is so vital: because, as Jay Rosen repeatedly points out, as a "stateless organization," they are free of the nationalistic allegiances which Goldsmith argues shapes (and restricts) the American media's reporting. 

One can debate whether it's good that American media outlets are driven in their reporting by an allegiance to the U.S. government and what these reporters define as America's "national interests."  But what's not debatable is that this is far away from an "objective" press, and even further away from an adversarial one.  America's "establishment media" is properly described as such precisely because their overarching objective is to promote and defend establishment interests in what they report -- and conceal -- to their readers.  That's precisely why so many people are increasingly turning to other outlets that are emancipated from those biases -- foreign media, the Internet, whistle-blowing sites -- in order to remain informed.

* * * * *

For one of the best analyses yet on the NYT's concealment of Raymond Davis' CIA employment -- and for a definitive refutation of its Public Editor's defense of that concealment -- see this typically insightful article from The New Yorker's Amy Davidson.

U.S. continues Bush policy of opposing ICC prosecutions

(updated below w/correction)

It has been widely documented that many of the worst atrocities on behalf of Libyan leader Moammar Gadaffi have been committed by foreign mercenaries from countries such as Algeria, Ethiopia and Tunisia.  Despite that, the U.N. Security Council's sanctions Resolution aimed at Libya, which was just enacted last week, includes a strange clause that specifically forbids international war crimes prosecutions against mercenaries from nations which are not signatories to the International Criminal Court (ICC), which protects many of the mercenaries Gadaffi is using.  Section 6 of the Resolution states that the Security Council:

Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

Why would a clause be inserted to expressly protect war crimes-committing mercenaries on Gadaffi's payroll from international prosecutions?  Because, as The Telegraph's John Swaine reports, the Obama administration insisted on its inclusion -- as an absolutely non-negotiable demand -- due to a fear that its exclusion might render Bush officials (or, ultimately, even Obama officials) subject to war crimes prosecutions at the ICC on the same theory that would be used to hold Libya's mercenaries accountable:

[T]he US insisted that the UN resolution was worded so that no one from an outside country that is not a member of the ICC could be prosecuted for their actions in Libya.

This means that mercenaries from countries such as Algeria, Ethiopia and Tunisia -- which have all been named by rebel Libyan diplomats to the UN as being among the countries involved -- would escape prosecution even if they were captured, because their nations are not members of the court.

The move was seen as an attempt to prevent a precedent that could see Americans prosecuted by the ICC for alleged crimes in other conflicts. While the US was once among the signatories to the court, George W. Bush withdrew from it in 2002 and declared that it did not have power over Washington. . . . It was inserted despite Susan Rice, the US ambassador to the UN, saying that all those "who slaughter civilians" would "be held personally accountable".

Speaking to reporters outside the council chamber, Gerard Araud, the French UN ambassador, described the paragraph as "a red line for the United States", meaning American diplomats had been ordered by their bosses in Washington to secure it. "It was a deal-breaker, and that's the reason we accepted this text to have the unanimity of the council," said Mr Araud.

This report notes that Araud blamed the Obama administration's demand on "parliamentary constraints" -- implying that Obama officials believed inclusion of this provision was the only way to induce Congress to approve and implement it.  There's no evidence that this is the case, but whatever the motives, here we have yet another episode where the U.S. exempts itself from standards it purports to impose on the rest of the world:  in this case going so far as to allow murderous mercenaries to go unpunished all in service of this administration's overarching, compulsive goal of ensuring that America's own accused war criminals are never held accountable or even required to have their actions subjected to legal scrutiny.  This is the sort of gross, credibility-destroying hypocrisy that escapes notice by America's media but not by anyone else's.

* * * * * 

Two related points:

(1) Here is the crux of America's foreign policy unintentionally captured by two consecutive tweets.

(2) I've written many times before about the case of Sami al-Haj, the Al Jazeera cameraman abducted in late 2001, encaged at Guantanamo for six years without ever being charged, and tortured, all while being questioned almost exclusively about Al Jazeera's operations, not about Al Qaeda.  As I've noted, his case was an enormous story in the Muslim world -- entailing, as it did, the U.S.'s due-process-free imprisonment and abuse of a journalist -- but received almost no attention in the U.S. media (Nicholas Kristof was a noble exception, writing several times about the case and demanding his release). 

A newly released WikiLeaks cable documents the hero's welcome and massive media storm triggered in the Muslim world by al-Haj's eventual release from Guantanamo in 2007.  By contrast, very, very few Americans have any idea who al-Haj is or even know generally that the U.S. imprisoned numerous journalists -- including him -- for years without due process (though they certainly know that Iran and North Korea did that).  The vast disparities in perception between non-U.S. Muslim and Americans are often noted, though it's usually attributed in the American media to the way in which They are propagandized.  Often times, the cause is exactly the opposite:  it's propaganda, to be sure, but not Them who are being subjected to it.

 

UPDATE/CORRECTION:  Looking over the language of the U.N. Resolution again, I think it's quite possible that The Telegraph -- and therefore me -- got a big part of this story wrong.  There's language in Paragraph 6 defining the scope of the immunity that is easy to overlook because of the strange way it's drafted -- "arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council" -- that seems to limit the immunity only to those participating in "operations authorized by" the U.N. Security Council:  meaning anyone involved in a U.N. peacekeeping mission (or U.N.-authorized military action) in Libya.  That would seem to exclude Libya's mercenaries from the immunity clause (in an update, Kevin Jon Heller comes to a similar realization).  

This is clearly a case where the Obama administration is continuing the Bush administration's insistence that the U.S. (as a non-signatory to the Rome Statute) should be exempt from all ICC prosecutions, but it does not seem -- as The Telegraph and then I indicated -- that the cost of this position here is immunity for Libya's mercenaries.  [The headline and sub-header have been changed to reflect this error; they originally read:  "U.S. shields foreign mercenaries in Libya to protect Bush officials - A U.N. resolution bars war crimes prosecutions for Libya's foreign fighters because Obama officials demanded it"].

U.S. shields foreign mercenaries in Libya to protect Bush officials

(updated below w/correction)

It has been widely documented that many of the worst atrocities on behalf of Libyan leader Moammar Gadaffi have been committed by foreign mercenaries from countries such as Algeria, Ethiopia and Tunisia.  Despite that, the U.N. Security Council's sanctions Resolution aimed at Libya, which was just enacted last week, includes a strange clause that specifically forbids international war crimes prosecutions against mercenaries from nations which are not signatories to the International Criminal Court (ICC), which protects many of the mercenaries Gadaffi is using.  Section 6 of the Resolution states that the Security Council:

Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

Why would a clause be inserted to expressly protect war crimes-committing mercenaries on Gadaffi's payroll from international prosecutions?  Because, as The Telegraph's John Swaine reports, the Obama administration insisted on its inclusion -- as an absolutely non-negotiable demand -- due to a fear that its exclusion might render Bush officials (or, ultimately, even Obama officials) subject to war crimes prosecutions at the ICC on the same theory that would be used to hold Libya's mercenaries accountable:

[T]he US insisted that the UN resolution was worded so that no one from an outside country that is not a member of the ICC could be prosecuted for their actions in Libya.

This means that mercenaries from countries such as Algeria, Ethiopia and Tunisia -- which have all been named by rebel Libyan diplomats to the UN as being among the countries involved -- would escape prosecution even if they were captured, because their nations are not members of the court.

The move was seen as an attempt to prevent a precedent that could see Americans prosecuted by the ICC for alleged crimes in other conflicts. While the US was once among the signatories to the court, George W. Bush withdrew from it in 2002 and declared that it did not have power over Washington. . . . It was inserted despite Susan Rice, the US ambassador to the UN, saying that all those "who slaughter civilians" would "be held personally accountable".

Speaking to reporters outside the council chamber, Gerard Araud, the French UN ambassador, described the paragraph as "a red line for the United States", meaning American diplomats had been ordered by their bosses in Washington to secure it. "It was a deal-breaker, and that's the reason we accepted this text to have the unanimity of the council," said Mr Araud.

This report notes that Araud blamed the Obama administration's demand on "parliamentary constraints" -- implying that Obama officials believed inclusion of this provision was the only way to induce Congress to approve and implement it.  There's no evidence that this is the case, but whatever the motives, here we have yet another episode where the U.S. exempts itself from standards it purports to impose on the rest of the world:  in this case going so far as to allow murderous mercenaries to go unpunished all in service of this administration's overarching, compulsive goal of ensuring that America's own accused war criminals are never held accountable or even required to have their actions subjected to legal scrutiny.  This is the sort of gross, credibility-destroying hypocrisy that escapes notice by America's media but not by anyone else's.

* * * * * 

Two related points:

(1) Here is the crux of America's foreign policy unintentionally captured by two consecutive tweets.

(2) I've written many times before about the case of Sami al-Haj, the Al Jazeera cameraman abducted in late 2001, encaged at Guantanamo for six years without ever being charged, and tortured, all while being questioned almost exclusively about Al Jazeera's operations, not about Al Qaeda.  As I've noted, his case was an enormous story in the Muslim world -- entailing, as it did, the U.S.'s due-process-free imprisonment and abuse of a journalist -- but received almost no attention in the U.S. media (Nicholas Kristof was a noble exception, writing several times about the case and demanding his release). 

A newly released WikiLeaks cable documents the hero's welcome and massive media storm triggered in the Muslim world by al-Haj's eventual release from Guantanamo in 2007.  By contrast, very, very few Americans have any idea who al-Haj is or even know generally that the U.S. imprisoned numerous journalists -- including him -- for years without due process (though they certainly know that Iran and North Korea did that).  The vast disparities in perception between non-U.S. Muslim and Americans are often noted, though it's usually attributed in the American media to the way in which They are propagandized.  Often times, the cause is exactly the opposite:  it's propaganda, to be sure, but not Them who are being subjected to it.

 

UPDATE/CORRECTION:  Looking over the language of the U.N. Resolution again, I think it's quite possible that The Telegraph -- and therefore me -- got a big part of this story wrong.  There's language in Paragraph 6 defining the scope of the immunity that is easy to overlook because of the strange way it's drafted -- "arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council" -- that seems to limit the immunity only to those participating in "operations authorized by" the U.N. Security Council:  meaning anyone involved in a U.N. peacekeeping mission (or U.N.-authorized military action) in Libya.  That would seem to exclude Libya's mercenaries from the immunity clause (in an update, Kevin Jon Heller comes to a similar realization).  

This is clearly a case where the Obama administration is continuing the Bush administration's insistence that the U.S. (as a non-signatory to the Rome Statute) should be exempt from all ICC prosecutions, but it does not seem -- as The Telegraph and then I indicated -- that the cost of this position here is immunity for Libya's mercenaries.