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Dr. Binoy Kampmark is a senior lecturer in the School of Global, Urban and Social Studies, RMIT University. He was a Commonwealth Scholar at Selwyn College, University of Cambridge. He is a contributing editor to CounterPunch and can be followed at @bkampmark.

Poor Timing: Cartier meets Australia Post

Watch brands do not tend to circulate as discussion topics in the Australian federal parliament. Time watching is a more functional affair. But Australia Post’s Chief Executive Christine Holgate gave politicians their chance to shine on October 21 in what can only be described as a mauling. In Senate Estimates, eyes were honing on small details. Why had four Australia Post executives received Cartier watches, valued at AU$19,950 in total?

In the bruising Senates Estimates session, Holgate had actually claimed that the four watches in question had cost AU$3000 each, tokens of appreciation for the “inordinate” work Gary Starr, Deanne Keetelaar, Anna Bennett and Greg Sutherland had put into securing the Bank@Post deal. The deal involved the Commonwealth Bank, National Australia Bank and Westpac paying AU$22 million in annual fees for providing banking services at Australia Post branches. But Australia Post chairman Lucio Di Bartolomeo was ever helpful, correcting the amounts in a statement. Apparently, the Cartier watches gifted to staff in November 2018 cost AU$7,000, AU$4,759, AU$4,400 and AU$3,800.

Holgate also stumbled in claiming that the watches had not been purchased using proceeds from the Australian taxpayer. “I have not used taxpayers’ money. We are a commercial organisation; it was a recommendation from our chair that these people get rewarded.”

This synaptic lapse was understandable to some degree. Australia Post is owned by the federal government but draws no funding from it. It remains an independent business. But Holgate had erred in blending the cultures of the corporate sector and those of the public. It was sufficient to put some government members into a more than irritable mood.

What stood out in the response to Holgate was its overly shrill note. Outrage was everywhere, coming from government members and even unions, with whom the conservative Morrison government has little by way of common ground. Communications Minister Paul Fletcher was “shocked and concerned as everybody else to discover [the Cartier watch gifts] when it was revealed in Estimates this morning.” He had also informed Holgate that she would “stand aside during the course of this investigation.”

The language of Greg Rayner, the national secretary of the CEPU communications union, was all venom and extermination. “The Government needs to intervene further than just wiping out the CEO – Australia post needs a whole reshuffle to get their leadership team right.”

The response from Prime Minister Scott Morrison was stormy and unctuous. The gifts were “disgraceful and not on.” The federal government “are the shareholders of Australia Post on behalf of the Australian people.” By the next day, his mood had barely improved. “I don’t think what we learned [on Thursday] would have passed any test with the Australian public when it comes to a company that is owned by the government.”

This was a far cry from the phlegmatic air of his government to a bungle that led to the overpayment of AU$27.6 million of taxpayers money for a 12.26 hectare land parcel adjacent to Western Sydney Airport in 2018. On October 19, Senate Estimates heard from the Auditor-General of the Australian National Audit Office Grant Hehir that “the Commonwealth may have been defrauded.” The matter had even been referred to the Australian Federal Police.

The stench of the deal between the Department of Infrastructure and the Leppington Pastoral Company, which so happens to be a Liberal Party donor, was impressive. The audit office was baffled to find that AU$30 million changed hands for property that had been valued by the company’s own accounts at AU$3 million. Senators also heard from Department of Infrastructure Simon Atkinson that two public servants were under investigation for the deal, with one having been stood down. Labor Senator Penny Wong put it to Atkinson that a cover up was afoot. “Senator, I agree with you,” came Atkinson’s reply. “I’m trying to clean it up.”

It was all, then, a matter of timing. With the government itself caught out in a deal that had been praised in September by the Deputy Prime Minister Michael McCormack as a “very good investment” and “bargain,” scalps had to be sourced from elsewhere. Holgate supplied the opportunity, which was taken with distracting glee.

Holgate has not made matters easy for herself. She has been doing what many corporate executives do: splash out and find the baubles, though not in a necessarily obscene way. A good amount has been spent on corporate credit cards and chauffeur-driven transport (according to figures from the 2018/20 financial year, AU$300,000). A reputation management firm was hired for a sum of $AU119,000 for a mere 38 days’ work between June and July this year.

Then again, Prime Minister Morrison had little to say to parcel delays, the pruning back of letter delivery services to every second day and the rise in postal prices. Other lavish expenditures such as the AU$1 million spent on indoor plants barely warranted a mention.

Seemingly forgotten in the Cartier storm are other aspects of Holgate’s tenure: arriving at Australia Post with a fifth of the pay given to her predecessor Ahmed Fahour, whose total salary package in 2016 was AU$5.6 million; the Bank@Post deal, which was manna from heaven to licensed post office work. Angela Cramp of the LPO Group, a body representing postal franchisees, went so far as to suggest that the “deal saved the licensed post office network.” Franchisees providing banking services in rural and regional areas had been previously short changed by the banks, who not only felt it decent to close their branches in those areas but inadequately pay post office branches for supplying substitute services. “We were in jeopardy of closing down across the country.”

Holgate has a few defenders, though they do come with a tarnishing. Eddie McGuire, president of the Collingwood Football Club, spoke highly of the chief executive, who also happens to be a board member of the club. “Why do we go and get superstar, business people to run public entities, and then try and make them play like dullards?”

Holgate has made her share of enemies, and this presented an opportunity. The language she used at the Estimates hearing was telling, confusing that of greater corporate freedom with the often hypocritical values of public service reserve. She did not regard the $60 million spent in bonuses as “bonuses” at all, as they were shared between 2,500 staff facing the increased volume of mail deliveries during the COVID-19 lockdowns. Some 34,500 frontline workers had also received “thank you” payments of AU$600, totalling AU$AU27 million.

This did not prevent such observations as those of Greens Senator Sarah Hanson-Young, who pointed an accusing finger at Australia Post for profiteering from the pandemic. The sticks and kindling have been brought out and a burning is expected. No gender defenders are expected this time.

 

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Trusted Demonologies: US Electoral Interference, the Proud Boys and Iran

Iran, Russia and electoral interference. It is all part of the delicious mess that any observer of US politics has come to expect. Were the US body politic capable of being examined on the clinician’s couch, historical fears, psychic disturbances, and a range of unsettling syndromes would be identified. The issue of electoral interference would certainly be at the fore; it would also be fitting that a state so indifferent to the electoral sovereignty of others would now find itself constantly fearing large return servings.

On some level, this standards to reason. In 1948, the United States, still flushed with victory, made a punchy bid to interfere with the outcome of the Italian elections. It was the Central Intelligence Agency’s first covert operation, and it was ignominiously undemocratic. As Walter Dowling, Italian desk officer at the US State Department urged in a memorandum in November 1946, the US had to become increasingly involved with Italian affairs, making itself “so pro-damned Italian that even the dumbest wop would sense the drift. Being so damnably pro-Italian naturally meant being anti-communist. US intelligence officials got to work ensuring that the Italian Communist Party (PCI), allied with the Italian Socialist Party (PSI) were kept out of office in favour of Alcide De Gasperi. Contingency plans were laid for the prospect of US military intervention in the event of civil strife. After De Gasperi’s victory, covert US aid to Italy’s centrist parties continued into the 1960s.

Hair splitting in these sorts of things is the order of the day. Chat in the land of political inference, especially when appraising the US role, focuses on how considerably different the meddling tends to be. “Unlike Russian electoral interference,” suggests Thomas Carothers of the Carnegie Endowment for International Peace, “US democracy promotion does not … favour particular candidates, or undercut the technical integrity of elections. On the whole, it seeks to help citizens exercise their basic political and civil rights. Carothers had obviously forgotten Chile in all of this, along with Secretary of State Henry Kissinger’s infamous remarks about correcting the democratic choice of Chile’s voters.

Post-Cold War history has not been freed from the meddling hand of Washington. In 1996, President Bill Clinton had to admit to efforts assisting Shimon Peres as the preferred candidate in Israel’s general elections. Benjamin Netanyahu prevailed, and Clinton conceded on Israel’s Channel 10 news that he “tried to do it in a way that didn’t overtly involve me.” When Netanyahu visited the White House as Israel’s prime time minister, he “wanted me to know that he knew I wasn’t for him and he beat us anyway.”

Such behaviour shows that allies are not exempt from the practice. The CIA did its bit in the lead-up to the French elections in 2012, though the effort was modest. Available in the WikiLeaks CIA Vault 7 Series, a number of “tasking orders” were executed in an effort to infiltrate French political parties and conduct surveillance. As WikiLeaks describes it, “All major French political parties were targeted for infiltration by the CIA’s human (‘HUMINT’) and electronic (‘SIGINT’) spies in the seven months leading up to France’s 2012 presidential election.” Despite being seen as pro-American, President Nicolas Sarkozy was not exempt from Washington’s prying eyes.

With such a glorious record, it is little wonder that Kentucky Senator Rand Paul, when asked about Russian interference in the 2016 presidential election, had little time for the fuss. In an interview with CNN’s Jack Tapper, Paul suggested that the electoral interference game was a buffet of reciprocal options: “they’re going to interfere in our elections. We also do the same … We all do it. What we need to do is make sure our electoral process is protected.” The investigation by Special Counsel Robert Mueller into the Trump campaign and Russian interference was a needless “witch hunt.”

With only a brief interval now to the presidential elections next month, it would have been odd not to have another set of allegations of interference. This latest round of claims has even been a bit neurotic. It began as accusations of interference from a domestic source: the far-right Proud Boys group. Emails, supposedly sent from “info@officialproudboys.com,” warned registered Democratic voters in Pennsylvania, Arizona, Florida, and Alaska to “vote for Trump on Election Day or we will come after you.” Enrique Tarrio, chairman of the Proud Boys and Florida state director of Latinos for Trump, denied that the group had a hand in the effort. “We don’t do mass emails,” he told Fresh Take Florida, a news service of the University of Florida College of Journalism and Communications. “This is definitely, definitely not us.”

With little care for caution and corroboration, a good stable of mainstream media outlets jumped on the narrative, accepting the premise that the Proud Boys had orchestrated a domestic campaign of electoral intimidation. It seemed to tally with image and reputation. Some group members have promised to keep an eye on polling stations across the country in a show of political heft. The Lincoln Project was furious, claiming that “the Proud Boys are attempting to scare voters away from the polls.” Such an act was “punishable by up to a year in jail and a blatant attempt to prevent people from voting. Let’s find them and make them famous.”

Then came the press conference of October 21, convened by the FBI and the Office of the Director of National Intelligence. FBI director Christopher Wray and the Director of National Intelligence John Ratcliffe were present. According to Ratcliffe, Iran and Russia “have taken specific actions to influence public opinion relating to our elections. Voter registration information had been obtained by both countries. “This data can be used by foreign actors to attempt to communicate false information to registered voters that they hope will cause confusion, sow chaos, and undermine your confidence in American democracy.”

Reference was made to the intimidating emails, which would not have comforted the anti-Trump camp. “We have already seen Iran sending spoofed emails designed to intimidate voters, incite social unrest, and damage President Trump,” stated Ratcliffe. “You may have seen some reporting on this in the last 24 hours or you have been one of the recipients.” Iran was also “distributing other content,” including a video implying “that individuals could cast fraudulent votes, even from overseas. This video – and any claims about such allegedly fraudulent ballots – are not true.”

Rachel Maddow of MSNBC, never one to be entirely balanced when viewing material on the White House Ogre, questioned the assertions made during the press conference. Interference in US elections over the last four years had always been taken to be against the Democrats and favourable to Trump. Could it actually be designed to sabotage the US president? Good of Ratcliffe, claimed Maddow, to be having the gathering (there was “drama” in holding a “short-notice press conference on election security”). “But when it comes to what he actually communicated, frankly nobody actually knows what he was talking about.”

It should have been clear from the context, but clarity was not dawning on Maddow. “We assume what he’s talking about here is these intimidating ‘vote Trump or else’ emails that were sent to Democratic registered voters in Florida and in numerous other states, but maybe that’s not what he’s talking about.”

For the devotees of Russia gate, any reverse angle was hard to stomach. Ideology must shape reality. Senate minority leader Chuck Schumer, in an effort to move the focus away from any specific targeting of Trump, claimed to have a different account of the security briefing he had been given. “From the briefing, I had the strong impression it was much rather to undermine confidence in elections and not aimed at any particular figure.”

A passable knowledge of recent Iran-US relations would surely make Ratcliffe’s assertions credible, not least Trump’s effort to sink the Iran nuclear deal and the ordered killing of Quds leader Major General Qasem Soleimani. But partisanship has been the order of the day for four years. Even in matters of electoral inference, trusted demonologies cannot be disturbed.

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Tarnished Crown: Finding the Thorns of a Gambling Empire

The Crown Resorts Annual General Meeting last year, held inside the company’s now flagging flagship Melbourne casino, was an ill-tempered matter. Members of the board were in no mood to please shareholders, many of whom have occupied the barricades of activism.

Crown executive chairman John Alexander had little time for those who had been muddying the good name of Australia’s foremost gambling brand. “There have been a number of sensationalist and unproven claims made, with many focused on allegations from over five years ago. Let me be clear – Crown does not tolerate any illegal activity by its employees or its patrons.”

At the same gathering, former government minister and current Crown Resorts chairman Helen Coonan also took issue with those “unsubstantiated and unproven allegations that have been made against Crown,” all of which had “been deeply distressing to all of us.”

The meeting was conducted in conditions hostile to transparency. It lacked a monitoring webcam. There were no pictures or recordings. One shareholder activist, the continuously plucky Stephen Mayne, daringly asked if there would be a transcript. “No,” fumed Alexander.

Mayne has been a shareholder warrior over the years, and the reply from Alexander would have come as no surprise. He suggested to those in attendance that a “crisis” was afoot. “When are you going to address the concerns your own shareholders are expressing here to the tune of AU$1.5 billion worth of stock, or is this just going to be ignored or dismissed like everything else at Crown?”

The organisation is suffering from a surfeit of attention, and for good reason. Regulators are breathing heavily down neck and body for a range of alleged irregularities from money laundering to old fashioned corruption. A name long associated with James Packer, who still retains a 36% stake in the company, has truly tarnished.

In August 2019, the Australian Commission for Law Enforcement Integrity thought the claims serious enough to launch Operation Angove, an investigation into allegations of corruption between staff at the Department of Home Affairs regarding the provision of visas for Crown VIPs; possible corruption between Australian Border Force (ABF) staff regarding clearing those VIPs at the Australian border; and whether one ABF member “engaged in corrupt conduct while employed by a VIP junket operator.”

Last month, the findings of Operation Angove were published. While it promised exposing many smells in the relationship between Crown and Australian government authorities, officials in the ABF and Home Affairs could rest easy. “Our investigation did not find evidence of corrupt conduct by Home Affairs or ABF staff in relation to any of the three corruption issues which we investigated.” No concrete instances of corruption, perhaps, but certainly some looming ethical questions. The ACLEI noted that “too much weight” had been given by Home Affairs officials to Crown’s visa applications, effectively granting the organisation a special form of access for their high roller clients. While “face to passport checks” for the passengers did take place on chartered flights, the inquiry was “provided with insufficient information to comment on baggage checks, other than it appears that they were conducted rarely.”

The New South Wales Independent Liquor and Gaming Authority has also been busying itself receiving evidence into alleged breaches of the company’s Sydney license. Interest was sparked by the sale of a 19.9% stake in Crown Resorts to Lawrence Ho’s Hong Kong-based casino operation Melco Resorts & Entertainment Limited. This was problematic, largely because the issuing of a licence to Crown in 2013 by the New South Wales state government had been made on the proviso that the company not involve itself with various companies run by Stanley Ho, Lawrence Ho’s billionaire father long suspected of being linked to organised crime in Macau. Lawrence might well be furiously clean, but Great Respect Ltd., a company with links to his father, is on the NSW prohibited list and claims a stake in Melco. Stanley would have seen the fun in this, having been previously frustrated by licensing regulators in Australia, Canada and the United States from expanding his casino imperium.

Coonan, in giving evidence to the inquiry on October 20, was asked about Crown’s relationship with SunCity, a Macau-based outfit notorious for recruiting batteries of heavily cashed gamblers from China. For doing so, the company had private rooms at various casino operators, including Crown, enabling millions to be frittered away in blissful, unscrutinised seclusion. The activities piqued the interest of regulators given allegations of SunCity’s links to organised crime made last year by The Sydney Morning Herald, The Age and 60 Minutes.

Senior counsel assisting the inquiry, Naomi Sharp, asked Coonan why the private function room for SunCity had not been shut down despite evidence of money laundering. “Isn’t it a quintessential example of Crown Resorts turning a blind eye to the prospects of money laundering occurring at its casino?” Coonan’s response was all fudge and qualification. “It may have been ineptitude or a lack of attention, I don’t think it was deliberately turning a blind eye, I do think it’s a different adjectival conclusion.

The last five years have been a bit too colourful, even by the standards of most casinos. But it conforms to a pattern, where hubris eventually meets nemesis. Crown’s Macau operations received a shudder in 2016 when Chinese authorities detained 19 Crown employees. This was precipitated, in no small part, by the company’s “whaling” efforts that eventually caught the attention of the ACLEI: the program of recruiting wealthy Chinese gamblers on Australian trips, largely to cover revenue shortfalls from Beijing’s anti-corruption campaign. This was a risky circumvention, given that Chinese law criminalises the practice of organising groups of more than 10 to gamble offshore. Crown’s unconvincing argument was that it did not operate casinos, more “integrated resorts.”

A warning had already been fired by Chinese authorities in their June 2015 arrest of thirteen South Korean casino managers, accused of “enticing” Chinese nationals to gamble in their casino. The sweeteners were extensive: gratis tours, free accommodation and sexual services. Convictions for the 19 Crown employees followed. Packer decided to exit the once lucrative Macau scene.

The latest round of probing to be added to the dishonour board comes from the anti-money laundering government agency AUSTRAC (Australian Transaction Reports and Analysis Centre). According to a statement from Crown, there were areas of alleged “non-compliance” including “concerns in relation to ongoing customer due diligence, and adopting, maintaining and complying with an anti-money laundering/counter-terrorism financing program.” The concerns surfaced during a compliance assessment commencing in September 2019, with a focus on “Crown Melbourne’s management of customers identified as high risk and politically exposed persons.”

As with much in the field of gambling and regulations, the regulators themselves can prove, if not inattentive, then unwilling to sink their teeth in. The onus is left to the corporation to manage and self-regulate, filing reports on suspicious conduct. AUSTRAC had already warned Crown in June 2017 that SunCity’s Macau-based executive Alvin Chau was a “foreign PEP,” otherwise known as a politically exposed person. “It is not acceptable,” AUSTRAC CEO Nicole Rose explained to an Australian Senate hearing, “for the entities to simply report and not to manage the risks.” Much, then, to talk about for the shareholders at the October 22 Annual General Meeting.

 

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Follow the Money: Banking, Criminality and the FinCEN Files

It was all a fitting reminder of Bertolt Brecht’s remark that bank robbery lies in the province of amateurs. The real professionals of plunder establish banks. Last month, the labours of Buzzfeed and the International Consortium of Investigative Journalists revealed just that. Centre stage: international banking misbehaviour. And my, was there much to go on.

The journalists had been combing through leaks comprising 2,121 suspicious activity reports (SARs) filed with the US Financial Crimes Enforcement Network (FinCEN) between 2000 and 2017. The relevant amount in terms of transactions: somewhere in the order of $2 trillion. It was awfully good of the banks themselves to be filing such reports with the US Treasury. But such matters are mere formalities; there is no incentive for the bank in question to stop trading with a shady client, despite what is suspected in the report. The point is to merely keep an account of it.

The criteria for an SAR are not sharply defined. Matthew Collin of the Brookings Institute suggests a few: unclear sources and ill-defined beneficiaries; a nexus with a jurisdiction historically noted for financial crime and irregularity. Another “common sign of suspicion is one in which a client attempts to avoid attention from the authorities by making several deposits below $10,000, which is the automatic reporting threshold.”

The FinCEN Files highlight five stellar performers in the movement of illicit cash: JP Morgan Chase, HSBC, Standard Chartered Bank, Deutsche Bank and Bank of New York Mellon. A few instances are worth mentioning. Despite being fined $1.9 billion in the US for money laundering, HSBC moved money through its US operations to accounts in Hong Kong in 2013 and 2014. Central to this was a Ponzi investment scam known as WCM777.

The brainchild of Chinese national Phil Ming Xu, self-styled “Dr Phil,” the World Capital Market scheme promised returns of 100 per cent profit in 100 days. Xu vigorously promoted this version of monetary paradise through social media, webinars and seminars. Gullible investors obliged, seduced by a rather grotesque combination of God and Mammon. (Xu was courting the evangelical market.) $80 million was raised and, for the unsuspecting investors, lost.

In the aftermath of the losses, direct physical harm resulted. Santa Rosa investor Reynaldo Pacheco extolled the virtues of WCM777 to family and friends. One acquaintance Pacheco had recruited to the scheme took umbrage at having lost $3,000. Taking matters rather seriously, she enlisted the services of three men in April 2014. They kidnapped the doomed Pacheco and bludgeoned him to death with rocks, leaving his remains in a creek bed in Napa, California.

Despite such events, and the knowledge that WCM was the subject of investigative interest in three countries, HSBC continued moving money for the investment fund. As the ICIJ describes it, over “$30 million tied to WCM flowed through the bank in 2013 and 2014 – at a time when HSBC was under probation as part of its deferred prosecution deal with America authorities.”

Not to be outdone, JP Morgan is also revealed to be more than the obliging middleman in dirt-caked transactions. An SAR filed by the bank in 2015 reveals that its London office might have assisted moving some of an amount totalling $1.02 billion. JP Morgan had provided services to ABSI Enterprises, a shady offshore company, between 2002 and 2013, despite being unclear of the firm’s provenance and ownership. The filed SAR disclosed how the parent company of ABSI “might be associated with Semion Mogilevich – an individual who was on the FBI’s top 10 most wanted list.” Such relationships demonstrate that capitalism lacks nationalist allegiances: Mogilevich is, after all, the emperor of Russia’s organised crime network.

JP Morgan’s reaction to such unmasking was an excuse all the banks have used at some point. “We follow all laws and regulations in support of the government’s work to combat financial crimes. We devote thousands of people and hundreds of millions of dollars to this important work.”

The amounts involved boggle, but they really ought to boggle more. Minds have been tasked with trying to comprehend the deep sea of money laundering, and they have been left baffled in the drowning. The United Nations Office on Drugs and Crime has an estimate: each year, between 2-5 per cent of global GDP, or $800 billion to $2 trillion – is laundered. In all this we see the tarnished, and, in banking circles, the acceptable fruits, of globalisation.

The United Nations Office on Drugs and Crime puts it down to various vectors: the development in financial information, the innovation of technology, the advance of communications. All “allow money to move anywhere in the world with speed and ease. This makes the task of combating money-laundering more urgent than ever.” Using the image of depth, “dirty money” becomes more difficult to identify as it plunges into the system, being rinsed and laundered.

The root of the problem is a deeply conventional one. Money is to be made. Banks make money handling money. Rinsing and washing, they still earn fees for the service. They are also encouraged by their staying power as indispensable international citizens. Politicians of various shades come and go. They occasionally spout demagogic promises about reforming and regulating the banking sector, but these voices will eventually pass.

Mechanisms are also in place that serve as damp slaps on the wrist than genuine incentives for reform. The deferred prosecution agreement (DPA) is a central part of the US government’s approach to induce change within a bank’s transaction practices. The reporting system is also feeble. Banks often filed SARs months after the suspicious transaction, often several with the same client. No action would be taken. A corollary of such filings is the value of such SARs. In the hope of preventing regulatory consequences, banks may issue an avalanche of them for regulators at FinCEN to investigate. Since 2003, the number of SARs from banks has quadrupled. FinCEN’s staffing has not kept the pace 178 in 2001; 300 in 2020.

This is not to say that kid gloves have always been the order of the day. Penalties have resulted. Since 2008, $36 billion worth in financial institution fines have been issued, with the bloc of North America taking about $27.9 billion. But such punishments have done little to chasten the sinners. Like thorny flagellation for the pious, the expectation of such treatment is built into the belief system. The sin is permitted to continue.

This is the institutional understanding that permeates the regulators and the regulated. Little wonder that FinCEN was unimpressed by the leaks. “As FinCen has stated previously,” the body asserted in a statement, “the unauthorized disclosure of SARs is a crime and can impact the national security of the United States, compromise law enforcement investigations, and threaten the safety and security of the institutions and individuals who file such reports.”

 

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Britannic Impunity: The UK Overseas Operations Bill

It was praised by Michael Clarke, former Director-General of the Royal United Services Institute, as “clear and entire laudable” – at least up to a point. The UK Overseas Operations (Service Personnel and Veterans) Bill would “give [British] troops serving overseas much-needed extra protection against fraudulent or frivolous claims against them of criminal behaviour.” It was also part of a commitment made by the Conservatives that British personnel would be padded with more legal protection against the nasty designs of future litigants.

Veterans minister Johnny Mercer had his lines in order, and they were not particularly convincing. “This legislation is not about providing an amnesty or putting troops above the law but protecting them from lawyers intent on rewriting history to line their own pockets.” For Mercer, Britannia is exceptional, a cut above the rest, suggesting, in the lingering wisdom of British imperialism, that they are just a bit more exceptional in hypocrisy than others.  

The Ministry of Defence has been feathering grounds for such changes arguing that unnecessary claims have been made against its personnel. They include compensation claims for unlawful detention regarding operations in Afghanistan and Iraq. To this can be added 1,400 judicial review claims for investigations and compensations on the basis that human rights have been violated. Of these, 70 per cent assessed by the Iraq Historic Allegations Team were dismissed as having no case to answer.

Instances such as those of solicitor Phil Shiner are cited, that ever zealous creature who was found guilty on five counts of dishonesty by the Solicitor’s Disciplinary Tribunal in February 2017 for tampering with evidence submitted to the Al-Sweady inquiry into allegations of atrocities in Iraq. Shiner was accused of showing a “clear disregard for the rules” in terms of his actions, having circulated “deliberate and calculated lies” regarding alleged atrocities by British soldiers after the commencement of the Iraq War.

The Bill has a particularly odious provision that serves to impose a five year time limit on prosecuting crimes that span offences committed by UK personnel while serving in overseas theatres, including a whole range of reprehensible offences, potentially including genocide, crimes against humanity and war crimes. Operations “dealing with terrorism” and peacekeeping endeavours will also be covered.  

What is being proposed is, in effect, a statute of limitations on grave criminality, a presumption against prosecution. Out with such solemn declarations that genocide is so reprehensible a crime as to defy time itself. In with more practical, paperwork limitations shielding abuses from legal review.

This would be part of what is described as a “triple lock” against unwanted suits against UK military personnel, the two other features involving a range of considerations prosecutors would have to give “particular weight to” against pursuing a case, and a requirement to obtain the consent of the Attorney General, or Advocate General in Northern Ireland, before commencing any prosecution. The Bill would also impose a duty on the government to consider derogating from the European Convention on Human Rights regarding significant overseas military operations.

To round it all off, Part II of the Bill also adds a time bar on civil claims against the Ministry of Defence by both survivors of torture and UK soldiers themselves who might have a grievance with their employer. Claimants will also be barred by the time limit despite being unlawfully detained or impeded in bringing forth their actions.

Should it become law, the Bill will jar with obligations arising under the Geneva Conventions. The Additional Protocol 1 of 1977 is a stand out on that score. A range of other international legal instruments also risk being breached, including the Convention Against Torture. As the legal action charity Reprieve argues in its submission to parliament on the Bill, “This risks effectively decriminalising torture when committed by UK forces overseas more than five years ago.” The organisation even notes that the proposed law would run counter to a 300 year old tradition stretching back to the Long Parliament’s Abolition of the Star Chamber in 1640.

The legal establishment is also concerned. In the sober words of the Law Society, “the proposal to introduce a presumption against prosecution amounts to a quasi-statute of limitations. Introducing a time limit risks creating impunity for serious crimes and the proposal would be an exception to the normal law for a category of criminal matters that does not exist anywhere else.”

Another submission on the Bill, written by Samuel Beswick of the University of British Columbia, points to a potential violation of the Equality Principle found deep in the immemorial foundations of UK constitutional law, spectral as it is: “that everyone is equally subjected to the ordinary law of the land: that the Crown and government officers do not benefit from more favourable rules than apply to the British people generally.”

Such concerns have not been the preserve of legal bleeding hearts and anti-torture charities. The Judge Advocate General Jeff Blankett has also expressed deep reservations. In the middle of the year, he wrote to the Secretary of State for Defence noting “significant misgivings” about a bill “ill-conceived” and dangerous in potentially bringing “the UK armed forces into disrepute.”

As for David Greene, vice president of the Law Society, something more flame-on-the-hill was at stake, and he had little desire for snuffing it out. “Our armed forces are rightly known across the world for their courage and discipline. Proposals to prevent the prosecution of alleged serious offences – including murder and torture – by service personnel outside the UK would undermine this well-deserved reputation and could break international law.”

The Bill is a classic, long overdue unmasking of the impunity that is British military power. More than a Freudian slip, it is an elucidating admission. In praising the standards of British military professionalism, Greene ignores the country’s thin record in prosecuting its own nationals for crimes committed in foreign theatres. Clive Baldwin, Senior Legal Adviser to Human Rights Watch, points to the butcher of Amritsar Brigadier General Reginald Dyer as a case in point. The killing of hundreds of unarmed men, women and children on April 13, 1919 at Jallianwala Bagh did little to even provoke an apology from the UK. The most severe rebuke Dyer faced was enforced retirement. “You might want to rewrite history, but you can’t,” sniffed the High Commissioner to India, Dominic Asquith, during commemoration proceedings held last year.

The deployment of torture in Kenya through the 1950s in response to the Mau Mau revolt against British rule barely stirred the prosecutor’s brief. In 2013, UK Foreign Secretary William Hague recognised in the Commons “that Kenyans were subject to torture and other forms of ill-treatment at the hands of the colonial administration.” Sincere regrets were offered, including £19.9m in compensation. But defiant to the last, Hague insisted that the UK had no legal responsibility for the actions of the colonial administration. Britannic contempt is deathless.

In focusing on such exceptional instances of manipulation as Shiner, the Bill is a riposte to British responsibility for more recent abuses in such theatres as Iraq. Despite public inquiries and court rulings finding British forces culpable for abusing detainees, in some cases killing them, few prosecutions have been filed. The death of Iraqi citizen Baha Mousa in September 2003 in Basra, the result of 93 surface injuries, led to an inquiry and a smattering of Court Martial proceedings. It also saw the first open admission by a British soldier to committing a war crime, though Corporal Donald Payne denied manslaughter and perverting the course of justice. Six other colleagues from the 1 Queen’s Lancashire Regiment were ultimately acquitted. Payne was jailed for one year. A meagre return.

With the passage of this Bill, Prime Minister Boris Johnson’s Global Britain will abandon any pretence to Queensberry rules, or rules of any sort. The jungle is there for the taking, and other powers in the jungle will finally be able to point this out. Clarke, sounding sorrowful, uses the standard understatement: that this Bill “opens up some intriguing possibilities for our adversaries, who love to claim international legitimacy for their blatantly illegal behaviour.” It might be a suitable epitaph for British power for long stretches it has been exercised: legitimacy claimed for blatant illegality.

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Dropped Prosecutions: The Afghan Files, Public Interest Journalism and Dan Oakes

In July 2017, two journalists working for the Australian Broadcasting Corporation, Dan Oakes and Sam Clark, wrote of a stash of incriminating documents, running into hundreds of pages. They were “secret defence force documents leaked to the ABC.” These documents gave “an unprecedented insight into the clandestine operations in Australia’s elite special forces in Afghanistan, including incidents of troops killing unarmed men and children.”

In exposing these depravities of invasion, adventurism and war, the devotees of secrecy got busy. Bureaucrats chatted; investigations commenced. On June 5, 2019, officers of the Australian Federal Police raided the Sydney offices of the ABC. It was a busy time for the police; Annika Smethurst of News Corp was also the subject of a warrant, having written about discussions about a proposed enlargement of surveillance powers already possessed by the Australian Signals Directorate. Both warrants had been executed pursuant to alleged breaches of official secrecy under the old version of the Crimes Act 1914 (Cth). Legal affairs editor of The Australian, Chris Merritt was alarmed enough to write of a less than brave new world. “Welcome to modern Australia – a nation where police raid journalists in order to track down and punish the exposure of leaks inside the federal government.”

Both warrants were subsequently challenged. The returns for journalism were mixed. In the case of the ABC, they were abominable. In February, the Federal Court Justice Wendy Abraham dismissed the effort by the broadcaster to impeach the warrant. She found the warrant validly drafted and sufficiency clear. Justice Abraham also affirmed that the implied constitutional right to communicate on political subjects was not a personal, enforceable one, merely a restraint on state power. “[T]he notion of speech as an affirmative value has no role to play.”

This formulation of Australian law, miraculously extracted from the worn teeth of the Australian constitution, is designed to render any such rights inoffensive and benign, lest the citizenry get uppity with such ideas as free speech. This state of affairs ought to encourage a move towards a bill or charter of rights, but Australia’s politicians will have none of it. Constitutionally enshrined rights would only inhibit the powers of parliament and frustrate the ever abstract sovereign will.

Smethurst had better luck in invalidating the search warrant on April 15. But the judges of the High Court found against the police the way a teacher might against an essay from a student prone to poor grammar. The warrant in question failed “to identify any offence under section 79(3)[of the Crimes Act]” and significantly misstated “the nature of an offence arising under it.” In short, go back to class and mind your punctuation before searching the homes and workplaces of journalists. The ill-gotten gains of the police – material taken from the Smethurst’s home – could still be kept, guaranteeing her a run of sleepless nights.

The AFP subsequently confirmed that a brief of evidence had been submitted to the Commonwealth Director of Public Prosecutions (CDDP), the result of the July 11, 2017 referral received from the Chief of the Defence Force and then acting-secretary of defence. It recommended that charges be made, though only against Oakes.

Dan Oakes (Image from abc.net,au)

With Oakes facing a gloomy prospect of being charged, the Parliamentary Joint Committee on Intelligence and Security released its report on “the impact of the exercise of law enforcement and intelligence powers on the freedom of the press.” The report, with its 16 recommendations, was predictably weak and timorous. At times, it reads like a cosy overview of how government institutions in the country truly appreciate the role of a free press. There are merry references to Australia’s vibrant democracy. It notes such fairly meaningless improvements as the Attorney General’s direction of September 19, 2019 that his consent would be required were the CDPP to initiate prosecutions against journalists.

The power to issue warrants against journalists was barely challenged. At most was a qualifying recommendation that the role of the Public Interest Advocate be expanded. This creature was already an oddity, given the secretive nature of the office. We know little about the credentials of those who occupy the office, nor its actual workings. The committee suggests a more active role for the advocate in dealing with warrant applications against journalists and media investigations concerning breaches of government secrecy. “The PIA must represent the interests of the principles of public interest journalism, and be authorised to request information to clarify elements of the warrant application provided by ASIO or an enforcement agency to enable the case to be built in their submission.” The monstrous chink in this already perforated armour is that that the PIA is wholly dependent on the evidence and claims of the government agency. The balancing act ceases to be credible.

With this less than comforting backdrop, it was confirmed on October 15 that the CDDP would not be taking the matter up against Oakes. According to a statement from the AFP, “In determining whether the matter should be prosecuted, the CDPP considered a range of public interest factors, including the role of public interest journalism in Australia’s democracy.” Having applied its own version of a “public interest” test (all government agencies seem to be doing so these days), the prosecutor found no reason to pursue the case despite believing that there was a “reasonable chance” of securing a conviction on three criminal charges.

As with such prosecutions, the public interest is a weapon twisted not in the name of the public’s interest, whose ignorance must be assured, but in the name of the state’s interest, ever reliant upon secrecy. To that end, “The CDPP determined the public interest does not require a prosecution in the particular circumstances of the case.”

The conclusion of the case against Oakes can only be troubling. The CDPP preferred waving the wand of deterrence just in case other journalists might wish to engage in the same practice. After all, there was a “reasonable” chance of securing a successful conviction. Clark, while welcoming the decision, claimed that “the matter should never have gone this far.”

As with the dangerous US Department of Justice indictment against WikiLeaks publisher and Australian national Julian Assange, the very fact of its existence is, in itself, threatening. It is a roaring threat, a promise that publishing national security information that reveals the dark side of state power will be pursued, and, importantly, can be pursued.

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Boris Johnson at Sea: Coronavirus Confusion in the UK

The tide has been turning against UK Prime Minister Boris Johnson. Oafishly, he has managed to convert that tide into a deluge of dissatisfaction assisted by the gravitational pull of singular incompetence. Much of this is due to such errors of communication as committed last month, when he got into a tangle over new coronavirus restrictions in England’s northeast.

In responding to a question on these new regulations, the prime minister erred in stating that the rule-of-six limit on gatherings did not apply to people meeting outdoors. “It is a six in a home or in hospitality but not six outside.” The government’s official guidance stated something rather different. “When meeting friends and family you do not live with (or have formed a support bubble with) you must not meet in a group of more than 6, indoors or outdoors.” This would be “against the law and the police will have the powers to enforce these legal limits, including to issue fines (fixed penalty notices) of £200, doubling for further breaches up to a maximum of £6,400.” Stiff consequences tend to follow from such misunderstandings.

Having fallen into his own trap, the prime minister had to concede his error. “Apologies,” he tweeted, “I misspoke today.” Having corrected himself on the regulations limiting such socialising both indoors and out, he tried to wave the much tattered flag of patriotic encouragement. “This is vital to control the spread of coronavirus and keep everyone safe. If you are in a high risk area, please continue to follow the guidelines from local authorities.” But evidently be wary of what the prime minister tells you.

It was all part of a push combining sterner measures in attempting to control coronavirus transmission while keeping some semblance of economic normality. “What we don’t want is to have to take even more severe measures as we go through Christmas,” warned Foreign Secretary Dominic Raab on LBC radio. “And that’s why we need to take the proportional, targeted measures we are taking now.” As a result, the laws and regulations have pleased no one and confused everyone.

Any balanced assessment would have to conclude that there is no uniform UK strategy on coping with coronavirus. Within the sceptred isle are such figures as Scottish First Minister Nicola Sturgeon, who feel that Johnson has been all too timorous in dealing with the virus. Her own scientific advisers had warned her that Johnson’s approach was inadequate in reducing the rate of transmission. “I’ve made a judgment that we are again at a tipping point with COVID and I’m looking at data that alarms me, frankly.” (The number of infections is currently hovering between a 15,000 to 20,000 cases a day.)

Members of Johnson’s own scientific advisory team tend to agree, feeling that the public health hammer needs to be brought to bear. Professor John Edmunds of the London School of Hygiene and Tropical Medicine was distinctly disapproving of government policy on BBC radio. “Overall, I don’t think the measures have gone anywhere near far enough. In fact, I don’t even think the measures in Scotland have gone far enough.”

None of this was encouraging, even to a conservative magazine Johnson once edited. Fraser Nelson, who now holds the reins at The Spectator, conceded that “Johnson’s overall COVID policy is now a mystery.” Did he intend to “flatten the curve”? Was he attempting “to eliminate COVID altogether? We might think his strategy is inspired; we might think it insane – but need to know what it is.” In Fraser’s view, the very man is an absentee, as is his government, “adrift, defined by its avoidable mistakes: COVID policy, Brexit party discipline… In all these things there is a conspicuous – and baffling – lack of leadership.”

With his popularity suffering, Johnson’s reaction is one of blithe disregard, if not wilful blindness. His October 6 speech concluding the Conservative Party Conference promoted a charge of Light Brigade optimism. He decried the “nonsense” that his own battle with COVID had “somehow robbed me of my mojo.” It was “self-evident drivel,” even “seditious propaganda” from saboteurs wanting the government to fail. He did concede to getting a fright, and being too fat; but he had found an inner, thinner hero.

He promised, instead of going back to the good old pre-COVID days in 2019, “to do better: to reform our system of government, to renew our infrastructure; to spread opportunity more widely and fairly and to create the conditions for a dynamic recovery that is led not by the state but by free enterprise.” He promised 48 hospitals. “Count them,” he dared critics sceptical of the government’s numeracy skills. “That’s the eight already underway, and then 40 more between now and 2030.”

With waffly ambitiousness, he promised more teachers, more funding for education, more police, better resources to improve rusted skills. There was even an aspirational moment of greening: that the UK would “become the world leader in low cost clean power generation – cheaper than coal, cheaper than gas.” Guilt free power generation, he called it.

Such a performance would have done little to inspire confidence even amongst the Tory faithful. Ahead of the speech, Andrea Thorpe, Conservative Association chair in Kent, spoke of the prime minister’s “lost focus,” and frustration at those “insanely complicated rules which are creating acrimony and exasperation.” Economic damage arising from the new coronavirus regulations, she feared, might exceed that of the virus.

The report cards of most nation states towards COVID-19 have been mixed, ranging from the modest to the terrifically horrible. Initial star performers have tumbled into second waves of infection. Lashings of dark eugenic theory have kept company with police truncheons and handcuffs backed by medical decree. The United Kingdom, if it has anything to boast about, can point to the world’s fifth highest death toll and the worst contraction in GDP of any G7 nation. But to all of this can also be added the steady, consistent confusions about regulations newly passed and newly misunderstood. A very Boris outcome.

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Back on the Stairway to Heaven: Led Zeppelin Wins Over Spirit

In March, the 9th US Circuit Court of Appeal upheld an original jury finding that Led Zeppelin’s Stairway to Heaven did not infringe copyright in Spirit’s 1968 song Taurus. Michael Skidmore, who had filed the suit in 2014 as trustee of the estate of the late Spirit guitarist Randy Wolfe, was hoping that the US Supreme Court would take time to hear, and hopefully reverse the decision. The highest court in the US refused to bite.

Wolfe, known professionally as Randy California, wrote Taurus somewhere between 1966 and 1967. On composing the song, Wolfe’s publisher armoured Taurus with copyright protection as an unpublished work, though such protection was superficial chainmail rather than full breast plating. Stairway to Heaven, the durable, seemingly ageless fruit of Jimmy Page and Robert Plant, was released in 1974 on Led Zeppelin’s fourth album. That particular song has caused spasms of delight and swooning, along with much reverential acknowledgment in guitar land over the years. But it has also given much carrion to the legal eagles. It was a sign that music, as with much else intellectual and even spiritually motivated, could be the subject of a battle to match other lengthy human conflicts.

The jury in the original district court trial found in special interrogatories that the trust owned Taurus, and that Led Zeppelin had access to it. This did not lead them to conclude that the songs were substantially similar. Led Zeppelin had argued that any similarities between the songs were for those elements not protected by copyright law; the plaintiffs argued that the “selection and arrangement” of those elements was.

The outcome at first instance did not deter Skidmore, who took the case to a three-judge panel of the Ninth Circuit.  Initially, success. The decision was vacated in September 2018 and a new trial ordered. Both parties then petitioned for a review of the decision by all the judges of the Ninth Circuit. This highly unusual request was granted, with an en banc rehearing taking place on September 23, 2019.

The decision to revisit the case was not universally condemned, though reversing jury verdicts tends to cause more than raised eyebrows. For one, it resembled, in reverse, the outcome of the Blurred Lines case, where the jury’s flawed conclusion was not deemed worthy of adjustment by the Ninth Circuit. Copyright lawyer Rick Sanders, writing for Techdirt, noted the “unhelpful legal framework for determining copyright infringement” that had marked the original ruling on Taurus.

That framework included an awkward creature of law known as the “inverse ratio rule,” which holds that the greater the similarity between two works, the less proof of access is needed. Embraced by the Ninth Circuit in 1977, the rule can also be put this way: “the stronger the evidence of access, the less compelling the similarities between the two works need be in order to give rise to an inference of copying.”

How it is applied is critical. The “bad framework,” as Sanders suggests, involves proving that the defendant has access to the copyrighted work and “substantial similarity” between those works. The preferable framework is one where the plaintiff must prove “copying” and “unlawful appropriation.” To prove the former, access and “probative similarity” must be shown. Unlawful appropriation amounts to substantial similarity, but probative similarity comes closer to an accurate yardstick than that of “substantial similarity.”

The original district court decision could also be said to be defective on the issue of the jury instructions. This was less a case of misdirection than no direction at all, rendering it incomplete and sloppy. What was the jury to make, for instance, of how to approach “works made up of unprotectable elements”? The issue was never put by the judge.

The en banc ruling restored the original district court’s decision favouring Led Zeppelin. Significant was the less than ceremonious burying of the inverse ratio rule. It thrilled lawyers of copyright law, as well as it might have. Brian Murphy was delighted that attorneys specialising in the field were finally provided with “greater clarity … about the standards for providing copyright infringement.”

The full complement of judges, in training their daggers upon the inverse ratio rule, noted the “confusion about when to apply the rule and the amount of access and similarity needed to invoke it.” They noted how dealing with the rule had been a struggle, mocked and rejected in the Second Circuit as early as 1961 for being a “superficially attractive apophthegm which upon examination confuses more than it clarifies.” It was illogical, even nonsensical. It did not follow that more access “increases the likelihood of copying.”

The judges also noted that the very concept of access had been “increasingly diluted in our digitally interconnected world. Access is often proved by the wide dissemination of the copyrighted work.” The very “ubiquity of the ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the world is available on demand.” The inverse ratio rule unfairly advantaged “those whose work is most accessible by lowering the standard of proof for similarity.”

The slaying of the rule did not mean that “access cannot serve as circumstantial evidence of actual copying in all cases.” Evidence of access and probative similarity were still elements to prove in instances of actual copying.

The en banc court also held that the scope of copyright protection for an unpublished work lies in the deposit copy filed with the Copyright Office that forms the copyright application. The dry wording of Section 11 of the Copyright Act of 1909 states that copyright for an unpublished work is obtained “by the deposit, with claim of copyright, of one complete copy of such work if it be a … musical composition”. “The purpose of the deposit,” and the fact of the work’s completeness, served to give, the judges claimed, “notice to third parties, and prevent confusion about the scope of the copyright.”

Central to this was a specific idiosyncrasy adopted by the Copyright Office. Sheet music, not sound recordings, were accepted as deposit copies. Somewhat barer, thinner things, such sheets often constitute skeletal matter yet to receive flesh. When Taurus was registered, the Copyright Office had in place a practice for applications registering unpublished musical compositions by “writ[ing] to the applicant pointing out that protection extends only to the material actually deposited, and suggesting that in his own interest he develop his manuscript to supply the missing element.”

The consequence of this was significant and, from Skidmore’s perspective, gloomily decisive. The eight-measure passage commencing the deposit copy of Taurus allegedly infringed by Led Zeppelin is a less fed, extravagant creature than the sound recording released by Spirit. The deposit copy, not the recording, defined the “four corners of the Taurus copyright.” The judges accepted that the district court had not erred in declining “Skidmore’s request to play the sound recordings of the Taurus performance that contain further embellishments or to admit the recordings on the issue of substantial similarity.”

On receiving the deflating news from the Supreme Court, Skidmore’s legal team was more than bruised. “The ‘Court of Appeals for the Hollywood Circuit’ has finally given Hollywood exactly what it has always wanted: a copyright test which it cannot lose.” Portraying himself as hero fighting major industry defendants and their predatory instincts, Skidmore is adamant about the consequences. “The proverbial canary in the coal mine has died; it remains to be seen if the miners have noticed.”

 

 

 

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Matters of International Justice: Challenging Trump’s ICC Sanctions

On September 2, US sanctions – the sort normally reserved for fully fledged terrorists and decorated drug traffickers – were imposed on the chief prosecutor of the International Criminal Court, Fatou Bensouda and her colleague Phakiso Mochochoko, head of Jurisdiction, Complementarity and Cooperation. For Balkees Jarrah, senior counsel for Human Rights Watch, it was a “stunning perversion of US sanctions, devised to penalize rights abusers and kleptocrats, to target those prosecuting war crimes.”

This followed from the authorisation by the Trump administration of economic and travel sanctions against employees of the ICC. According to Executive Order 13928, “The entry of such aliens into the United States would be detrimental to the interests of the United States and denying them entry will further demonstrate the resolve of the United States in opposing the ICC’s overreach by seeking to exercise jurisdiction of the United States and its allies.”

On June 11, US Secretary of State Mike Pompeo expressed his objection to how the Court’s Office of the Prosecutor had, in November 2017 “announced its intention to investigate our brave warriors for alleged crimes arising from counterterrorism missions in Afghanistan.” This was not a “prosecution of justice” so much as “a persecution of Americans.”

Bensouda’s original November 2017 request to investigate was less dramatic, focusing “solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”

President Trump’s executive measures are both threatening and disruptive, attempting to add a few holes to what is already a complex investigative process. They grant the US Secretary of State the power of designating such foreign persons as have engaged or assisted efforts by the ICC to investigate or prosecute crimes allegedly committed by Americans or personnel of certain United States allies. Included are also those who have assisted, supported or provided services to or in support of such persons. Engaging in prohibited interactions with such individuals is unlawful, opening the subject to civil and criminal fines. If a “natural person”, 20 years of incarceration might follow, pursuant to the International Emergency Economic Powers Act.

This pugilistic approach to the ICC has not been well received by numerous signatories of the Rome Statute, which established the court. A statement endorsed by countries from several continents was issued on June 23 affirming “unwavering support for the Court as an independent and impartial judicial institution.” Using the stock language familiar with US diplomacy, the states claimed to “remain committed to an international rule-based order.”

Such rules-based orders can be the stuff of exaggeration and make believe.  International law remains susceptible to political pull, influence and manipulation. Accusations have been levelled against the ICC for its purported biases, notably against African states. Rwandan President Paul Kagame repeated that common line of criticism in 2018. “The ICC was supposed to address the whole world, but it ended up covering only Africa.” A decade prior, Kagame had taken issue with the efforts of Luis Moreno-Ocampo, the then ICC chief prosecutor, to arrest Sudanese President Omar al-Bashir. “If you use a fraudulent mechanism or institution against somebody who needs to be held accountable, in the end you are not helping people understand whether this person needs to be held accountable.”

Those keen on more expeditious procedures have also taken the court to task for inefficiency. The court’s proceedings have been derided as, according to Elizabeth Wilmshurst of Chatham House, too “cumbersome” and “lengthy”. Money has been spent for poor returns. The Ivory Coast’s ex-President Laurent Gbagbo was acquitted of war crimes charges in 2019. Kenya’s President Uhuru Kenyatta, saw crimes against humanity charges against him dropped in 2014.

Context is all, and the court’s weaknesses have as much to do with problems of state cooperation – or its absence – as they do with feasibility and focus. (In Kenyatta’s case, prosecutors complained that the Kenyan government had refused to submit vital evidence.) Having a supremely powerful international court with razor sharp teeth, abundant resources and the means to satisfy the cravings of civil society, seems improbable, and even undesirable. But the latest efforts from Washington go further, an attempt defang the fundamental workings of the court itself.

With that in mind, a domestic legal experiment is underway in the United States. In an attempt to counter the Trump administration, the Open Society Justice Initiative, along with four prominent academics of the law, have filed an action challenging the lawfulness of Executive Order 13928, along with implementing regulations issued by the Office of Foreign Assets Control. The plaintiffs admit to having history of involvement with the ICC “including in its investigations and prosecutions.” They express no desire to stop engaging with it. They also admit to having assisted “two high-ranking officials within the Court’s Office of the Prosecutor – by educating, training or advising them and members of their Office, and by undertaking public advocacy in support of their mission and work.”

The plaintiffs cite several grounds, notably that the Executive Order and accompanying regulations “impermissibly restrict [their] First Amendment rights to freedom of speech by prohibiting them from providing the speech-based services and assistance” so described, including in connection with ICC investigations and prosecutions the US supports. They also argue that the Executive Order is decidedly vague in what acts it prohibits, leading to “arbitrary enforcement.”

The executive director of the Open Society Justice Initiative, James Goldston, had a whole spray for the administration in a statement. “By issuing this outrageous order, the Trump administration has betrayed Washington’s long-standing support for international justice, snubbed its allies, and violated the US constitution.” Going to court served to “end this reckless assault on a judicial institution and the victims it serves.”

Despite the predictable theatre that often accompanies these policy announcements, the burdens imposed on the ICC are not insuperable. The main site of the investigation remains Afghanistan, where the alleged crimes, including those committed by US personnel, took place. Most of the evidence will be gathered in Afghanistan. Witnesses and relevant individuals in the US may be interviewed by remote means. This act of US imperial machismo, despite its punchy seriousness, may fall flat.

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Infectious Conspiracies: Donald Trump, Coronavirus and Reality

One measure of success in politics is the degree enemies imitate you, even if done insincerely and without flattery. Insincere imitation has become the preserve of a whole panoply of Donald Trump’s critics stretching from the money, corporate side of the Democrats to the sandalled warriors who believe in environmental eschatology. Most importantly for Joe Biden and fellow travellers of the Donkey Party, they remain incapable and uninterested in identifying and confronting their devastating loss in 2016. There is only one program in the works, the mission that matters: removal and elimination. Get Trump out, and all will heal.

This makes political conversation insensible and torturously imbecilic. Trump’s wand waving has had such an impact on his opponents that they mimic, unconsciously, his own tropes. They ape and bark to his beat. They speak of conspiracy, exclaim and splutter about fakery. They talk of the improbability of reality. Trump, for instance, could not have actually contracted the novel coronavirus.

Since October 2, Trump become the subject of eager medical experimentation. He has received an intravenous dose of the dual antibody REGN-COV2, a drug yet to satisfy all stages of approval. The combination features a B cell from a human who had recovered from a SARS-CoV-2 infection and yet another one of those heroic mice whose immune system was engineered to resemble the human immune system. “Experiments in both golden hamsters and rhesus macaques that were intentionally infected with SARS-CoV-2 showed the cocktail could reduce viral levels and disease pathology,” writes Jan Cohen in Science. Speculation (can it be anything else?) abounds as to whether Trump was also taking, as one of his physician’s claims, “zinc, vitamin D, famotidine, melatonin and daily aspirin.”

Much of this is of less interest to Trump sceptics than the fact that it is even taking place. They share, with mild discomfort, similar ground to the QAnon group, who impute to Trump a strategy to outwit the Democrats, who they claim operate a global human trafficking empire. While QAnon insist that Trump is playing the Democrats in pretending to have COVID-19, some liberals have also taken of the same sauce. Jon Ehrens, a producer for WHYY radio in Philadelphia, claimed that “90% of listener emails/comments are very insistent that the diagnosis is a lie.” Common conspiracy theories included “finding an excuse for why he will lose the election” to proving “that the coronavirus is no big deal.”

The president’s illness, when announced on October 2, did not merely issue an open invitation to conspiracy; it unleashed a tsunami of gloating enthusiasts. There were curses to enchant the polyglots. There were homicidal fantasies skipping along social media platforms. Within hours of the announcement, Merriam-Webster noted that searches for that supremely useful word “schadenfreude” had risen by 30,500 per cent. Yolanda Pierce, dean of Howard University’s divinity school, refused to “perform false politeness in the presence of evil.”

A good portion of the media stable long mocked by Trump for being the great news counterfeiters were themselves incapable of believing the president. They had become the ideologues of disbelief, the mirrors of the fake. “The sad truth is that we really can’t trust at face value what comes out of the White House on this,” political reporter Jonathan Karl explained on the ABC’s “The View.” Reporters “have to ask the questions” and would accordingly verify the information. (Good of Karl to state what should be the reporter’s natural mission.) “But there’s been so much misinformation that has gone out about the virus, about the pandemic, about things like voter suppression – it’s really hard to know what to believe.”

As for the general issue of verisimilitude, pity the doctors, as well, charged with such a mission as conveying a message both medically sound yet politically sanitised. Historically, such White House physicians are paid to diagnose the leader patient. The job prescription also entails a bit of mendacity, if required, prompting the rather cynical observation by Aaron Seth Kesselheim, professor of medicine at Harvard, that care for the US president has been marked, at stages, by “incompetence, secrecy and downright deception.”

Author and Guardian columnist Simon Jenkins is even resigned on this score. “Doctors have never known how to handle sick leaders.” Trump’s situation, he is reminded, is much like that of the British Prime Minister Boris Johnson, who also contracted the virus in March. The doctors initially claimed he was “just fine and cheerful.” “When this proved untrue he was said to be dying. Bulletins merged into bullshit. Nothing was believed. Johnson had to bitterly protest his health only this weekend.”

In lowering the tone of what was already the bankrupt political conversation of the republic, Trump also lowered the bar of believability. There is no higher plateau of political grace to seek. Everyone’s in for a mauling. We are in the gutter, and we are going to stay there, eyes averted, from the stars. And the truth.

 

 

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Lunar Lunacy: Competition, Conflict and Mining the Moon

The discussion about mining the Moon resembles that of previous conquests: the division of territory; the grabbing of resources; language of theft and plunder. All of this is given the gloss of manifest destiny and human experiment. Such language is also self-perpetuating: the plunderer is only as good as the amount taken; success is dependent on constant replenishment and expansion.

A presentation from NASA’s Jet Propulsion Laboratory sports the message that would sit comfortably with any empire builder in history. “Across history, human development has relied upon the finite resources of the Earth.” An unfortunate state of affairs, but never fear: “the moon – a seemingly barren rock – may actually be a treasure trove of rare resources vital to Earth’s future. And now, nations are looking upwards to a potential lunar gold rush.”

Such NASA promotions tend to be tinselled with confidence and brio. They anticipate the Cassandras and naysayers who fear that humans are merely going to deplete the next resource, causing yet another catastrophe of incalculable proportions. “The moon has a mass of 73q tons,” claims the colourful JPL presentation. After a few “back-of-the-envelope calculations” (always reassuring), taking one metric ton from the moon each day would take a mere “220m years to deplete 1% of the moon’s mass.” There would be no change of orbit, or to the gravitational force that affects the Earth’s tides. Gradual predation never hurt anybody.

The Moon had been spared such proposed rushes at least till 2008, when the Chandrayaan-1 probe from the Indian Space Research Organisation crashed into the Shackleton Crater in the lunar south pole. It seemed to have discovered water-ice, a point confirmed by NASA in a 2018 publication that can barely conceal the delight of its authors. “These ice deposits might be utilized as an in situ resource in future exploration of the moon.”

This has caused a rash of interest. The European Space Agency could only be encouraged, having already mentioned the idea of a Moon Village in 2015. “A Moon Village shouldn’t just mean some houses, a church, and a town hall,” explained the newly appointed Director General of ESA, Johann-Dietrich Wörner. “This Moon Village should mean partners from all over the world contributing to this community with robotic and astronaut missions and support communication satellites.” Manifest destiny can also be collaborative.

 

Lunar housing (Image from astronomy.com)

 

With this has come the lure of private capital. Space agencies are hungry for sources other than the tax payer. Bidders are being sought for commercial payload deliveries; lunar bases are being touted as staging grounds for lucrative business, including mining asteroid belts. On the Moon itself, there is the promise of such metals indispensable in electronics: yttrium, samarium and lanthanum. Helium-3, a gas for nuclear fusion, tantalises investors.

The incitement to aggressive competition and conflict, reminiscent of the wars fought between European powers over colonies and trade routes, seems inevitable. The US Space Command’s “Vision for 2020”, released in 1997 but still troublingly pertinent, notes that the rise of sea commerce saw nations building “navies to protect and enhance their commercial interests.” The brutal conquest of the American interior (described with benign reflection as “the westward expansion of the continental United States”), saw the use of military outposts and cavalry to protect wagon trains, settlements and railroads. “Likewise, space forces will emerge to protect military and commercial national interests and investment in the space medium due to their increasing importance.”

Last month, NASA administrator Jim Bridenstine announced that collecting moon material would form part of the agency’s Artemis lunar exploration program established in 2019. The intention of that program is to land US astronauts on the moon by 2024 and enable them to “live off” it, as it were, a prelude to bigger and better things.  Bridenstine insisted with testosterone fuelled confidence that NASA was “working aggressively to meet our near-end goal of landing the first woman and next man on the moon by 2024” with the aim of establishing “a safe and sustainable lunar exploration architecture.”

These are the weasel words of this new exploration. Artemis will be “sustainable”, while also being “innovative.” It will also keep the budget watchers happy, as it will be “affordable.” Specialists of space law will also be satisfied. The dream, then, is one of facilitating space capitalism. “We know a supportive policy regarding the recovery and use of space resources is important to the creation of a stable and predictable investment environment for commercial space innovators and entrepreneurs.”

Companies, according to Bridenstine, are being solicited “to provide proposals for the collection of space resources.” A nod to space law is made: that actions regarding these proposals will comply “with the Registration Convention, Article II and other provisions of the Outer Space Treaty, and all our international obligations.” Companies will collect Moon “dirt” from any part of the lunar surface, furnish “imagery” to NASA of the collection process and the material, along with data on where the material was collected and “conduct an ‘in-place’ transfer of ownership of the lunar regolith or rocks to NASA.” That material will become the property of NASA. But the agency promises to fork out for the “lunar regolith,” with awardees receiving 10 per cent at award, 10 per cent upon launch and remaining 80 per cent on completing the mission.

Such remarks have an express purpose: to douse the nagging suspicions of space entrepreneurs and devotees of commercial space endeavours. National space agencies have historically been seen as unwarranted shackles to boisterous space capitalism. The editor and publisher of The Space Review, Jeff Foust, puts it down to a stubborn “libertarian streak.” Historically, such space advocates eschewed government influence over their space programs “often as part of broader political beliefs.” Others feared a competitor in the form of the space agency, a threat to “private ventures, particularly in launch.” Modern exponents of such thinking can be found in Peter Lothian Nelson and Walter E. Block’s Space Capitalism, a libertarian work of such cranky polemic it even questions the space ventures of Elon Musk, Jeff Bezos and Richard Branson as unduly compromised by state involvement.

On Earth, capitalism as a system is being given a pasting by exponents of sustainability who argue that it is doomed and dooming. The age of the Anthropocene, the outgrowth of human dependence upon fossil fuels, has proven to be, and is proving to be an experiment of calamitous consequence. But whatever the terrestrial changes to be made – be they to renewable infrastructure, adjustments in growth, or the development of ecological wisdom – the predatory streak of conquest and colonisation is obstinate. The lure of lunar mining, messy lunar conquest and lunar battles, is a very real one.

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Assange’s Eighteenth Day at the Old Bailey: Abuse of Power, Breaching Attorney-Client Privilege and Adjournment

October 1, 2020. Central Criminal Court, London.

The Old Bailey has been the venue for a trial that should never have taken place. But during the course of these extradition proceedings against Julian Assange, the WikiLeaks founder accused by the US Department of Justice for violating the US Espionage Act (17 charges) and one under the Computer Fraud and Abuse Act, an impressive battalion of defence witnesses has been called upon. They have assisted Assange’s legal team to build a picture of obscene politicisation, imperial overreach and wanton callousness.

A picture of the detention facilities awaiting the publisher was painted with fine strokes: the alienating brutality of solitary confinement; likely special administrative measures restraining the detainee’s access to legal representation and family; inadequate health facilities both physical and mental for those at risk of self-harm. Then came the chilling realisation, made clear on the seventeenth day: that the US intelligence services, through the Spanish security firm UC Global SL, had conducted surveillance of the Ecuadorean Embassy in London, and proposed kidnapping or poisoning a political asylee.

Peirce and violations of attorney-client privilege

In the court on Thursday, attention turned to written submissions from human rights activist Gareth Peirce, Assange’s solicitor, who described brazen breaches of attorney-client privilege. Trial observers noted how “extraordinarily difficult” it had been to follow Peirce’s statements, largely because of Judge Vanessa Baraitser’s penchant for preventing a full reading in the court.

Despite such stints of constipation, the point of Peirce’s submissions was clear enough. Legally privileged documents were seized from the Ecuadorean Embassy in London. The Ecuadorean intelligence service was complicit. Two diplomatic pouches with USB sticks were placed in a diplomatic bag, sent to Ecuador, then onwards to the United States.

Peirce claimed that, between 2017 and 2018, three legally privileged meetings were subjected to surveillance without her knowledge. Assange’s Spanish lawyer Aitor Martínez was also the subject of such intrusion, his legal file photographed when absent in a meeting with his client. The legal team representing Assange had a nagging sense that their gatherings might be monitored. While not knowing the full extent of such intrusions, “an exceptionally high level of anxiety” was present during those meetings.

Martínez also furnished the court with an update on the criminal investigation against UC Global SL director David Morales, being conducted by Spain’s High Court, the Audiencia Nacional. Morales’s part in this sordid matter was much in evidence the day before, when his role in facilitating surveillance of Assange and his embassy meetings, at the behest of his “American friends” was given a generous airing by former employees of his company. The outcome of that case may well shed light upon an already troubling bridge linking UC Global with the Central Intelligence Agency and Las Vegas Sands, owned by Trump supporter and Republican donor, Sheldon Adelson.

Tigar’s testimony and abuse of power

Testimony from Professor Michael Tigar of Duke Law School was read, drawing parallels between the abuses of power perpetrated by the Nixon administration in 1971 and those of the Trump administration vis-à-vis Assange.

The first case centred on the outcome of President Richard Nixon’s attempts to prosecute the Pentagon Papers whistleblower Daniel Ellsberg. After the publication of the papers, Nixon’s staffers formed a covert unit known as the “White House Plumbers,” a blunt outfit that proceeded to commit crimes with abandon for the unforgettable Committee for the Re-Election of the President (CREEP). Ellsberg’s psychiatrist’s office was burgled by the Plumbers in an effort to pilfer his medical files; Nixon ordered the illegal wiretapping of Ellsberg; the government then claimed to have mislaid those wiretaps when asked to produce them at trial. And just to spice things further, US District Court Judge William M. Byrne, Jr., presiding over Ellsberg’s trial, was also approached by Nixon and his assistant for domestic affairs, John D. Ehrlichman, about the possibility of becoming the FBI’s next director. Judge Byrne could only conclude that the government’s actions had “offended a sense of justice,” leading him to declare “a mistrial and grant the motion for dismissal.”

The US intelligence effort against Assange in the Ecuadorean Embassy in London, perpetrated through UC Global’s installation of surveillance facilities, threw up richly disturbing similarities. Confidential files had been accessed; privileged conversations with lawyers had been recorded; over eager proposals for kidnapping or poisoning Assange expressed. For Ellsberg, this was certainly damning. “That’s essentially the same information that ended my case and confronted Nixon with impeachment, leading to his resignation.”

Baraitser’s exclusions

Patience on the bench, and among the prosecution team, began to wear thin. The prosecution, led by James Lewis QC, argued that the defence had run out of time. Objections mounted, temperatures rose. Material was excluded. Judge Baraitser decided to exclude one of Peirce’s witness statements addressing the new allegations made in the second superseding indictment served in July. The statement, argued the defence, was only appropriate to address “fresh and different” allegations the prosecution only saw fit to include at a later date.

She also batted away the defence’s effort to submit a statement made by US Attorney General William Barr on September 15, outlining his belief that the executive branch had “virtually unchecked discretion” in deciding whether or not to initiate prosecutions. “The power to execute and enforce the law is an executive function altogether,” Barr stated. “That means discretion is invested in the executive to determine when to exercise prosecutorial power.”

Readying the ground

The ground, then, is being readied for closing arguments by the defence. Three areas promise to feature. The first is the heavy air of political motivation in the prosecution of Assange. Outlets that had published the unredacted cables prior to WikiLeaks doing so on September 2, 2011, and left unmolested by the DOJ and law enforcement, suggest distinct targeting. To this can be added the manoeuvrings in the Trump administration, noted in the testimony of Cassandra Fairbanks, about the decision to arrest Assange. A clear change of heart had manifested in the matter, given the loss of interest shown by the Obama administration in pursuing the publisher. Coupled with the theory of executive power endorsed by the Attorney General Barr – that such an officer should defer to the views of the presidential office in determining prosecutions – add to claims that this is a politically driven endeavour.

The second focuses on an abuse of power, sharply drawn in the testimony of two anonymous former employees of UC Global. The third: that Assange, should he be extradited, will face cruel and inhumane treatment. Frail health and appalling prison conditions at both the pre-trial Alexandria Detention Center, and the post-trial ADX Florence supermax in Colorado, promise to be a debilitating, even lethal mix.

With the evidence now in her possession, Baraitser will have much to get through. Unfortunately, we are none the wiser about what items of evidence her judicial mind will accept or reject. The jaw dropping accounts of embassy espionage, suggested poisoning and proposed kidnapping of Assange may be deemed, as the prosecutors insist, irrelevant to the charges at hand.

A date for judgment was also set. “Unless any further application for bail is made, and between now and the 4th of January, you will remain in custody for the same reasons as you have been before,” Baraister explained to Assange.

After the adjournment, Assange’s fiancée Stella Moris spoke of the highest of stakes, of this being not merely a fight for life but press freedom and truth. “This case is already chilling press freedom. It is a frontal assault on journalism, on the public’s right to know and our ability to hold governments, domestic and foreign, to account.”

Moris noted, with pertinence, the prosecution’s admission, under oath “that it has no evidence that a single person has ever come to any physical harm because of these publications. Let me repeat that: there is no evidence that a single person has ever come to any physical harm because of these publications.” Assange was in prison for informing “you of actual crimes and atrocities being committed by a foreign power. That foreign power has ripped away his freedom and torn our family apart.” It was a power determined “to put him in incommunicado detention in the deepest darkest hole of its prison system for the rest of his life.”

Assange will continue spending time at Belmarsh Prison, one of Britain’s most notorious facilities reserved for only the most hardened species of criminal. He will put in court appearances every 28 days via videolink. The defence will submit closing arguments on November 16; the prosecution will then make its final pitch to convince the court two weeks later. The legions of press members, writers and scribblers should now ruminate, along with Judge Baraitser, about the consequences of this entire process. Moris is clear about one of them. “The US administration won’t stop with him. The US says that it can put any journalist, anywhere in the world, on trial in the US if it doesn’t like what they are publishing.”

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Assange’s Seventeenth Day at the Old Bailey: Embassy Espionage, Contemplated Poisoning and Proposed Kidnapping

September 30. Central Criminal Court, London.

Today will be remembered as a grand expose. It was a direct, pointed accusation at the intentions of the US imperium which long for the scalp of the WikiLeaks founder Julian Assange. For WikiLeaks, it was a smouldering triumph, showing that the entire mission against Assange, from the start, has been a political one. The Australian publisher faces the incalculably dangerous prospect of 17 charges under the US Espionage Act and one under the Computer Fraud and Abuse Act. Stripped to its elements, the indictment is merely violence kitted out in the vestment of sham legality. The rest is politics.

Witness statements were read from a veritable who’s who of courageous investigative journalism (Patrick Cockburn, Andy Worthington, Stefania Maurizi and Ian Cobain) and an assortment of legal freight from Guy Goodwin-Gill, professor of law at the University of New South Wales, Robert Boyle, well versed in the dark practices of grand juries and Jameel Jaffer of the Knight First Amendment Institute at Columbia University.

These statements, pointing to the value of the WikiLeaks publications, the care taken in releasing them, and the terrifying prospects for press freedom, deserve separate treatment. But Wednesday’s grand show was stolen by two anonymous witnesses, occasioned by a change of plans. Originally scheduled for Thursday, testimony of the witnesses from the Spanish security firm UC Global S.L. were moved a day forward. Both speak to the aims and ambitions of the company’ owner and director, David Morales, who passed information on Assange and his meetings with allies and associates to the US intelligence service while the Australian was resident in the Ecuadorean Embassy in London. Judge Vanessa Baraitser had relented on the issue of keeping their anonymity: to have not observed the convention would have been a mark of disrespect for the Spanish court.

Their material is part of a current investigation into Morales being conducted by a magistrate of the Audiencia Nacional court. That process was instigated at the behest of Assange’s legal team, whose filed criminal complaint alleges breaches of privacy and the violation of attorney-client privilege, amongst other charges.

Illegal agreements are born

Witness #1 informed the court of a man determined: Morales “showed at times a real obsession in relation to monitoring and recording the lawyers who met with the ‘guest’ (Julian Assange) because ‘our American friends’ were requesting it.”

The first witness added stitching to the account linking the UC Global with US intelligence. In July 2016, with UC Global already contracted and providing security services to the Ecuadorean embassy, Morales “travelled to a security sector trade fair in Las Vegas, which I wished to accompany him.” This would not be. Morales “insisted he had to travel alone. On this trip, Mr Morales showcased the company UC Global in the Las Vegas security sector trade fair.”

What followed was UC Global obtaining “a flashy contract, personally managed by David Morales, with the company Las Vegas Sands, which was owned by the tycoon Sheldon Adelson, whose proximity to Donald Trump is public knowledge (at the time Trump was the presidential candidate).” Morales’s point of contact at Las Vegas Sands was its chief of security, Zohar Lahav.  Lahav is also the subject of interest for the Audiencia Nacional, which has asked the US Department of Justice to seek a statement from him. The investigating judge, José de la Mata, is keen to examine details of the Morales-Lahav association and whether their meetings involved discussing information illegally obtained from Assange.

UC Global was hired to provide security services to Queen Miri, the luxury vessel owned by Adelson. “The contract did not make sense,” claimed the witness. Morales seemed to be overegging the pudding. “The most striking thing about it was that he boat had its own security, which consisted of a sophisticated security detail, and that the contract consisted in adding an additional person, in this case David Morales, for a very short period of time, through which David Morales would receive an elevated sum.”

Thrilled at getting the contract, Morales was in celebratory mood, gathering employees in the Jerez company office to say that “we have moved up and from now on we will be playing in the big league.” What did “big league” mean? Morales, replying to the query from the first witness, claimed that “he had switched over to ‘the dark side’ referring to cooperating with US authorities, and as a result of that collaboration, ‘the Americans will get us contracts all over the world’.” In 2017, Morales asked for a secure phone and encrypted computer to communicate with his American contacts.

Along with news of the contract came an uncomfortable revelation: “that we had entered into illegal agreements with US authorities to supply them with sensitive information about Mr Assange and [Ecuadorean President] Rafael Correa, given that UC Global was responsible for the embassy security where Mr Assange was located.” As a result of this parallel agreement, “reports would also be sent to ‘the dark side’.” Morales made regular trips to the US to facilitate this, “principally to New York but also Chicago and Washington” where he would “talk with ‘our American friends’.” The first witness pressed Morales at points who these “‘American friends’ were.” “US intelligence,” came the reply.

When confronted by the first witness that UC Global should not be engaged in such activities, Morales huffed. He would open his shirt in defiance, and claim with brio that he was “a mercenary, through and through”.

The first witness also testified that Morales’s trips to see his “American friends” increased with frequency in 2017. Trump’s victory seemed to be the catalyst. By June or July 2017, “Morales began to develop a sophisticated information collection system outside the embassy.” He asked employees “physically inside the embassy to intensify and deepen their information collection.” The internal and external cameras of the embassy were to be changed. Morales, according to the first witness, had also “instructed a team to travel regularly to London to collect the camera recordings.”

Tasks forces and surveillance

Witness #2, an IT expert, told the Old Bailey how he was asked to “form a task force of workers at our headquarters in Jerez” between June and July 2017. “The purpose of this unit was to execute, from a technical perspective, the capture, systematization and processing of information collected at the embassy that David Morales requested.” Witness #2 was responsible for “executing David Morales’s orders, with technical means that existed in the embassy and additional measures that were installed by order of Morales, in addition to the information gathered in the embassy by the UC Global employees who were physically present in the diplomatic mission.”

The second witness sensed inconsistencies. Morales told the task force that the contract with Ecuador necessitated the replacement of the embassy’s cameras every three years. “This made no sense because the contract had been in force for longer than three years and the clause had not been fulfilled to date.” While he was unaware of the clause, the second witness considered that the circuit operating CCTV security cameras at the time “were sufficient to provide physical security against intrusion inside the building.”

But Morales was adamant. Security cameras with concealed audio recording capabilities were to be acquired and installed. “Because of this, and in accordance with the orders of David Morales, who claimed that all of this was necessary to fulfil the contract, I sought providers for these types of cameras, insisting in, to the extent possible, concealing audio-recording capabilities.”

The extent of Morales’s zeal alarmed the second witness. “Around June 2017, while I was sourcing providers for the new camera equipment, David Morales instructed that the cameras should allow streaming capabilities so that ‘our friends’ in the United States’, as Morales explicitly put it, would be able to gain access to the interior of the embassy in real time. This request alarmed me greatly, and in order to impede the request, I claimed that remote access via streaming via the camera circuit was not technically achievable.” The witness did not “want to collaborate in an illegal act of this magnitude.” He noted Morales’s wish to have the entire embassy bugged and suggested that the purpose of installing microphones had been “per the request of the United States” to target Assange’s defence team.

Stunned by its illegality, the second witness tried to dissuade Morales by suggesting that Assange would detect the recording facilities. But in early December 2017, the cameras, enabled with audio-recording means, were installed. When asked by Assange and the Political Counsellor Maria Eugenia whether the new devices recorded sound, the second witness had his orders: to not “share information about the system and to deny that the cameras were recording audio.” Once in place, “the cameras began to record sound regularly so every meeting that the asylee held was captured.”

The second witness was also heavy on detail in various specific operations designed to frustrate Assange’s own countering efforts. He had been asked by Morales in January 2018 to place rigid stickers on the external embassy windows at the top left-hand corner. It transpired that this seemingly idiosyncratic exercise had one express purpose: to neutralise the disruptions to recording conversations caused by Assange’s white noise machine, which “produced a vibration in the window that stopped the sound being extracted via the laser microphone, which US intelligence had installed outside.” The stickers served to eliminate the vibration, enabling the laser microphones to “extract conversations.”

Morales had also impressed upon the IT specialist that he install a microphone in the PVC folder of the fire extinguisher in the embassy meeting room used by Assange. The same was done for “the toilet at the end of the embassy” as it had become a venue of “strategic” importance: Assange “who suspected that he was the subject of espionage, maintained many of his meetings there in order to preserve confidentiality.”

While a whole range of targets were of interest, the Spanish former judge and member of Assange’s legal team, Balthasar Garzón, was particularly important. “The security guards at the embassy were requested to search for evidence of travels to Argentina and Russia in Garzón’s passport pages, which were photographed.”

Nappies, contemplated kidnappings and proposed poisonings

Such behaviour at the embassy conformed to a consistent pattern of instructions that verged on the comic and grotesque. On one occasion, recalled Witness #2, Morales had asked him to “steal a nappy of a baby which according to the company’s security personnel deployed at the embassy, regularly visited Mr Assange.” The pilfering of the nappy was for reasons of identifying whether the baby was, in fact “a child of the asylee.” It was “the Americans”, Morales claimed, “who wanted to establish paternity.”

Not content merely with establishing paternity, Morales’s “American friends” were also suffering from states of desperation, keen to bring Assange’s stay in the embassy to an end. According to the second witness, “the Americans were desperate [in December 2017] and that they had even suggested that more extreme measures should be employed against the ‘guest’ to put an end to the situation of Assange’s permanence in the embassy.” Suggestions were made to Morales by his US contacts: the door of the embassy would be left open; an “accident” could be claimed for covering an operation “which would allow persons to enter from outside the embassy and kidnap the asylee.” Another option was put on the table: “the possibility of poisoning Mr Assange”.  Such suggestions, Witness #2 claimed, “shocked” the employees, who “commented amongst ourselves that the course that Morales had embarked on was beginning to become dangerous.”

The eviction and arrest of Assange followed. Witness #1 informed Assange’s legal team that Morales had “betrayed both the terms of the contract and the trust that had been given to him by the Government of Ecuador, by systematically handing over information to US intelligence agencies.” He came to realise that information on the security of the embassy and Rafael Correa had been sold to “the enemy, the United States, which is the reason I put an end to my professional relationship with him.”

These revelations excited Pentagon Papers whistleblower Daniel Ellsberg, having already etched his name into legal history at these proceedings with supporting testimony. In his optimistic view, such evidence of surveillance by the CIA of Assange’s conversations with his legal team “and everyone else” in the embassy, along with suggestions of poisoning and kidnapping, might mean him walking free. “That’s essentially the same information that ended my case and confronted [President Richard] Nixon with impeachment, leading to his resignation!” Convincing to Ellsberg it may be, but will it sway the icy temperament of Judge Vanessa Baraitser?

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Assange’s Sixteenth Day at the Old Bailey: Special Administrative Measures, Unreliable Assurances and Espionage

September 29. Central Criminal Court, London.

Julian Assange’s defence team spent the day going over, reemphasising and sharpening the focus on what awaited their client should he, with the blessing of Her Majesty’s Government, make his way to the United States. Not only will he confront 17 charges under the US Espionage Act and one under the Computer Fraud and Abuse Act, he faces the prospect of imprisonment for the rest of his life in conditions that risk prematurely ending his life.

Warden Baird and SAMs

The opening expert witness was Maureen Baird, who knows a thing or two about US carceral fare, having presided over the Metropolitan Correctional Centre in New York as its warden. She was in little doubt that Assange will be subjected to Special Administrative Measures (SAMs) over and above those conditions he will already face. She thought the affidavit by US Assistant Attorney Gordon Kromberg gave a good clue of that intention: the government tends to only mention SAMs if they intend using them.

While the US Attorney General will be the one to make that determination, advice will be sought from relevant security agencies. “It could be the CIA, the FBI, border control, together with the US Attorney and the Attorney General,” came Baird’s reply to defence barrister Edward Fitzgerald QC. Were the CIA to be involved, they would be consulted “with the office of enforcement operations at the DOJ [Department of Justice].” With the CIA’s view carrying hefty weight, Fitzgerald tantalisingly floated a proposition to be revisited later in the day: that US intelligence was behind targeting Assange while he was a political asylee of the Ecuadorean Embassy in London.

Baird’s description of inmates placed under SAMs was grim and similar to the testimony of Yancey Ellis delivered the day before: “solitary confinement, technically, for 24-hours a day.” No communication with other inmates. “The only form of human interaction they encountered was when correctional officers opened the viewing slot during their inspection rounds of the unit, when institution staff walked through the unit during their required weekly rounds, or when meals were delivered through the secure meal slot in the door.”

Inmates were allowed 30 minutes on the phone per month (one call of 30 minutes duration, or two of 15 minutes), with all calls scheduled two weeks in advance and monitored by the FBI. Mail, heavily screened, could take months to be delivered. (In this, Baird rejected the optimistic description by Kromberg that the mail service was “free-flowing” in such facilities.)

As with other witnesses already called, including Joel Sickler of the Justice Advocacy Group, she agreed that SAMs were singularly “devastating,” “desolate and degrading.” Such measures could lead to “severe depression in isolation, anxiety, paranoia, weight loss detrimental to physical health and detrimental to mental health.” She thought them brutal and archaic, a relic of cruelty. “I am uncertain how the [US Bureau of Prisons] has been able to continue with these types of isolation units, given all the studies, reports and findings of the horrific physical and psychological effects they have on inmates.”

Challenging SAMs was also an adventurous, generally futile hope. “Mr Kromberg suggested that when an inmate has a twice a year review he can challenge SAMs with a case manager, but as a case manager myself,” Baird explained to the court, “I saw nothing is going to happen.” Case managers lacked “authority to make any changes to SAMs.” As was further explained, the Bureau of Prisons “exercises no control/jurisdiction over SAMs imposed by the Attorney General. Wardens are bound to abide by the SAMs imposed on an inmate.” During her time as Warden at MCC New York, Baird had “never seen an inmate have his SAMs removed, only extended.”

The former warden was also certain that Assange, if convicted, would be destined for the ADX Florence supermax facility in Colorado. If placed under SAMs, he would be kept in a segregating housing unit at the ADX. “As someone who spent the majority of her adult life working for the BOP and as a former Designator, who decided where inmates would serve their sentences, absent a medical requirement, or a protected Witness Security Case, I am not familiar with any alternative long-term options aside from the ADX, for offenders under SAMs.”

As for the sparkling portrayal of the ADX in Colorado given by Kromberg’s affidavits, including the presence of social and therapeutic activities for inmates, Baird could only express bemusement. “For anyone to suggest that an inmate assigned under SAMs would be able to participate in group counselling is baffling to me. The main premise of assigning SAMs is to restrict a person’s communication and the only way to accomplish this is through isolation.”

Medical treatment was also a scrappy, unreliable affair for SAMs prisoners. You would have to be at death’s door before being transferred to a medical facility. As for those at risk of self-harm, Baird accepted that the BOP had a robust suicide program, which was hardly a guarantee against the determined. “When you have suicidal ideation, the reliance on inmate self-reporting is pretty strong. When an inmate fails to report that, it is not noticed and the inmate commits suicide.”

In cross-examination, prosecutor Clair Dobbin played an unaccustomed role: the bleeding heart, concerned with prisoner welfare. Why had Baird not done more to ease the plight of SAMs prisoners during her time as warden? Baird replied that leading by example was her method, not that she could compel other staff to do the same. “It was not uncommon for staff not to engage with inmates.” While she had not taken the issue of treatment of SAMs prisoners up with a judge or the BOP, she rejected Dobbin’s assertions that she lacked concern for them. Baird’s reasoning was that of an instrument of state violence self-justified. “It did cause me concern, but I had to convince myself it was okay. I honestly did not believe I could do anything. It was [handled] at a higher level.”

Dobbin then suggested that SAMs inmates could alter their conditions by participating in a three phase program. They could meet in groups of four in an area outside their cell on reaching the third level. Baird refuted the suggestion: Phase one and two did give extra privileges to the prisoners, but they remained in isolation. It had nothing to do with the actual removal of SAMs. Permitting inmates to reach the third level would defeat “the whole purpose of SAMs.”

The prosecution then drew upon a statement from prosecution witness Alison Leukefeld, an employee of the US Bureau of Prisons claiming, in line with Kromberg’s affidavits, that SAMs prisoners would have chances to engage in group therapy. Baird was dismissive in reply: “I think she does not have much experience with SAMs inmates and is not out in the field.”

Lindsay Lewis, Abu Hamza and false assurances

The calling of US attorney Lindsay Lewis was important in her link to Abu Hamza al-Masri (Mostafa Kamel Mostafa), an Egyptian radical cleric and former imam of London’s Finsbury Park mosque extradited to the United States in 2012 after an eight-year legal battle. He was accused of a suit of offences ranging from attempting to establish a terrorist training camp in Bly, Oregon to supporting terrorists in Afghanistan and kidnapping 16 tourists in Yemen in 1998. Hamza also faced the SAMs regime, kept in solitary confinement for eight years and imprisoned at the ADX Florence since 2015. He has not been allowed family visits since 2012.

As Lewis outlined in her witness statement, SAMs have limited Hamza’s “contacts not just with the outside world, but also with his family, other inmates and even his attorneys.” With a Kafkaesque twist, such restrictions went so far as to hamper her own means of describing his true conditions to the court.

An example of the harsh absurdities of these administrative measures was also given: Hamza was said to have breached them when he “improperly tried to convey, in a letter to one of his sons, his love to his one year old grandson.” The grandson had not been on the list of approved contacts.

Hamza’s case is gruesomely remarkable for its false assumptions. According to Lewis, assurances were given to the United Kingdom by US authorities that future prison facilities would be tailored to his fragile medical state. Were he to spent time at ADX Florence, it would only be for a short time. District Judge Timothy Workman of the Westminster Magistrates’ Court, in ruling for Hamza’s extradition in 2007, noted that a lengthy, indefinite period of detention at ADX Florence would result in “inhuman degrading treatment” in violation of Article 3 of the Convention Against Torture. He also considered ADX Florence to have conditions “offensive to my sense of propriety of dealing with prisoners.”

Nothing of the sort, claimed prosecutor Dobbin in her cross-examination of Lewis, who read a declaration by a warden that Hamza would face a medical examination and go to a medical facility if he was incapable of managing his activities of daily living (ADL). Of unflagging faith in the virtues of those she represents and the US justice system, Dobbin claimed that, “There was no way they could have found he could have managed his activities of daily living either pre-trial or post-trial.”

Such credulity was impressive. The UK authorities had assumed that it was “impossible” for a double amputee, one functional eye and suffering diabetes to pass a medical exam on his fitness for detention at ADX Florence. “I am satisfied,” Judge Workman declared at the time, “that the defendant [Hamza] would not be detained in these conditions [at ADX] indefinitely, and his undoubted ill-health and physical disabilities would be considered, and at worst, he would only be accommodated in these conditions for a relatively short period of time.” Lewis observed that Hamza, having had both forearms amputated, was a fairly obvious qualification against being sent to the ADX. “I don’t believe the US government has followed through on him receiving a full medical examination.”

Dobbin, ever the believer, wondered if Lewis was simply too trusting of Hamza. “He is a double amputee,” came the reply. “He does not have daily nursing care four times a day as he had in the UK. He is placed in a handicapped cell that does not have proper shower and toilet facilities.”

In 2018, one of Hamza’s lawyers issued a statement asserting “that the conditions of his confinement violate the expectations of the European Convention on Human Rights and the promises that were made by the US government to the [British and European] courts as part of the extradition process.” By comparison, the conditions at Belmarsh, a facility Assange is well acquainted with, were notably better. Horror comes in degrees.

Anonymous witnesses, espionage and the CIA

In anticipation of Thursday’s proceedings, the court also considered whether it should grant anonymity to two witnesses from the UC Global S.L. security firm, the Spanish company charged with providing security at Ecuador’s London embassy. Their testimony, scheduled to be read that day, is intended to draw the political line between UC Global, their espionage activities targeting Assange in the London Ecuadorean Embassy, and the CIA. UC Global’s director David Morales, is alleged in reports to have travelled to Las Vegas in 2017, where he secured a contract with Las Vegas Sands of the casino mogul Sheldon Adelson, a notable financier of US President Donald Trump. It is claimed that Morales handed over audio and video recordings of meetings Assange had with his lawyers and associates while in the embassy.

Having already testified in a Spanish court case against Morales under protection, and fearing for their safety should their names be disclosed at the Old Bailey, Judge Vanessa Baraitser relented. We also await how the prosecution will deal with their potentially juicy testimony. James Lewis QC has yet to receive instructions from the DOJ on whether to mount a challenge, given the less than impervious “Chinese Wall” that supposedly exists between agencies such as the DOJ and the CIA. That comforting fiction is designed to prevent politicisation. It is one that this trial has already done a good deal to expose and scuttle.

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Assange’s Fifteenth Day at the Old Bailey: Solitary Confinement and Parlous Health Care

September 28. Central Criminal Court, London.

Throughout the sham process formally known as the Julian Assange extradition trial, prosecutors representing the United States have been adamant: the carceral conditions awaiting him in freedom’s land will be pleasant, accommodating and appropriate. Confronting 17 charges under the US Espionage Act and one under the Computer Fraud and Abuse Act, Assange and his defence team have been resolutely sceptical.

Today, the prosecution reiterated its position on the US federal prison system as one of rosy comfort and decent facilities. As has happened at several points in the extradition trial, the views of Gordon Kromberg, assistant US attorney for the Eastern District of Virginia, were given another airing. Stale as ever, Kromberg told the court that, “Inmates in administrative segregation are able to speak to one another through the doors and windows of their cells.” How civil. “Typically,” he also noted, “there are several inmates in administrative segregation.” He does not tire of this canard, and makes the point one more time with robotic certitude. “Even in administrative segregation, Assange would be able to communicate with other inmates through the doors and windows of his cell.”

Ellis on solitary confinement

The defence witness Yancey Ellis, as with others more acquainted with the bestial prison conditions of the imperium, suggested something quite different. Ellis is a former judge advocate in the US Marines. First would come the experience of being held in the Alexandria Detention Center (ADC), where Assange will be given his pre-trial blooding on US soil.  Most likely, he will find himself, Ellis claimed, in X block, kept in a narrow cell each day for 22 to 23 hours, containing “a sleeping area, a small sink and a toilet,” guarded by thick doors. Meals would be taken in the cell. The precious one or two hours granted to the inmate would often only be granted at “very odd hours.” The time would be spent in the “common area of the ADSEG unit, which is maybe about twice the square footage.” Only one inmate in the unit would be permitted out of the cell at any one time. “There is limited interaction with other ADSEG inmates because their doors and food-tray slots are closed.”

Such an individual is purposely segregated from others, alienated and prevented from accessing therapeutic or other programs available at the facility. “There is no outside recreational or exercise area at the Alexandria jail and I do not recall there being any windows in the ADSEG unit,” Ellis notes in his written submissions.

As with other defence testimonies, Kromberg’s came in for special attention. There were “several assertions made by Mr Kromberg” that were “incorrect or incomplete.” When asked by Edward Fitzgerald QC for the defence whether Assange would be given the means to “associate with other prisoners,” Ellis was far from convinced. “The short answer is: not really.” Administrative segregation implied just that. Kromberg’s assertion in his affidavit that there was no solitary confinement at ADC was dispatched. “1X ADSEG unit is essentially the same as solitary confinement.”

Ellis had himself experimented with conversing through such barriers, and was discouraged by the effort. In his court statement, he suggests that it might be “technically true” to suggest that words might be exchanged. But in practice, it was “impossible. In 1X ADSEG the cell doors are made of thick steel and the ‘windows’ are transparent, thick plexiglass material with no slots or holes.” It would be, Ellis explained, “almost impossible to speak through the door if the food tray slot is not open. It would not be possible for anyone to say that if he is familiar with the X Bloc.”

Communicating with his clients through such doors proved “very difficult, even when standing several inches away. I find it implausible that inmates could really communicate in this way, unless they constantly screamed at loud volumes. I would routinely have to ask for a deputy sheriff to open the cell’s food tray slot in order to be able to speak with a client.”

In addition to the physical features of the facility will be Special Administrative Measures (SAMs), further limiting Assange’s communication and hindering his means of mounting an adequate legal defence. While Ellis conceded to having had no experience of them, he understood them to entail further impositions on visits and communication with friends and family.

On matters of mental health, Ellis was distinctly discouraging. Provision at the facility was rudimentary. “The extent of mental health care is that a social worker or counselor comes around to check on you every once in a while to ensure basic functioning.” There were no permanent doctors in residence at ADC. Part-time psychiatrists were employed instead, meaning irregular visits and consultations. Those at risk of self-harm found themselves in suits designed to prevent suicide, immobilizing “the arms away from the body, removing shoe strings and sheets, etc.”

In cross-examination, James Lewis QC for the prosecution attempted to shore up the shoddy assertions in Kromberg’s affidavit. Ellis, he suggested, was doing a bit of crystal ball gazing: how could he really know if Assange would be held in X Bloc? Ellis had, after all, not interviewed the warden, a psychologist or prison staff about the conditions. This was a desperate ploy; Ellis had been asked to testify on the conditions he had seen, not the totality of a policy that remained opaque. “I have requested those records [determining how inmates will be housed] before and can never get them.” Triumphantly, Lewis suggested that “Kromberg’s statement of how [Assange] would be assessed for housing at the ADC” was not something that could be disputed. As to whether Assange would actually find himself in administrative detention, Ellis was cautious but convinced. “I can’t predict the future, but I would bet he would be put in administrative detention.”

The prosecutor also attempted to lay a trap in discrediting the testimony. Had Ellis been massaged by the defence to use the words “solitary confinement” in his statement to the court? No, came the reply. The time detainees in administrative segregation are permitted outside the cramped confines of their cell was “generally equivalent to solitary confinement.” Mockingly, Lewis scrapped about definitions: an inmate could not be said to be enduring conditions of solitary confinement meeting his lawyers three hours each day (Not much verisimilitude on the part of the prosecution, given that the application of SAMS would make such meetings a difficult, if not an impossibility.)

Lewis then focused on Assange’s standing in Ellis’ eyes. Did he feel that the publisher’s case had garnered publicity and large public support? “I would agree with the publicity,” came the reply. Public support was another matter he could not speak to. The fact that previous prominent figures such as Paul Manafort and Maria Butina had been housed at the ADC and placed in “administrative segregation” suggested that Assange would not be treated any differently.

This line of questioning stirred Judge Vanessa Baraitser, who went on to probe Ellis on how the US Bureau of Prisons would handle Assange’s case. In the United Kingdom, “Assange has been in custody in this jurisdiction for 18 months,” housed in the general wing. “Other than his being a public figure, any reason you think he’ll be held in administrative detention?” The “primary reason,” suggested Ellis, would be his notoriety, though mental health might be a factor officials would consider. But as the mental health unit was located in the general population, a decision might still be made to place him in “administrative segregation.” “The mere fact you are high-profile dictates conditions?” inquired Baraitser. Generally, came the reply, the ADC preferred segregating “these types of defendants” to “maintain a secure and safe environment” though he could not say why. “I am just speaking from experience.”

Sickler on health care

Veteran prison advocate and founder of the Justice Advocacy Group in Virginia, Joel Sickler, followed for the defence. Much of his testimony seemed reiterative and supplementary to that of Ellis, though it also moved into discussion about the ADX Florence supermax facility, a nightmare Assange may face after softening at the ADC. He suggested that Assange would have “no meaningful reaction” at the ADC, kept in his parking-space sized cell. It was “ridiculous” to assert, as Kromberg had done, that credible communication between inmates in administrative segregation in the facility could take place. “You’re twiddling your thumbs. You’ll have access to reading material, but your whole world is the four corners of that room.” There was also “significant sensory deprivation comparable to isolation in a cell. There is little natural light as well as access to fresh air.”

While Assange’s attorneys would be permitted “to meet with him at any time during professional visiting hours” finding yourself “in the ADSEG unit at the ADC could compromise Mr Assange’s ability to focus on and assist his attorneys in his defence – for reasons related to how debilitating the experience may be for a prisoner.”

There was also a real risk of SAMSs being applied by the Attorney-General in the event of conviction. Challenging them would pose almost insuperable challenges. “It’s a well-known fact here that even the most minor administrative appeals by inmates are denied.” Sickler claimed to have filed over a thousand appeals, “winning a dozen at most.”

Sickler’s testimony also covered the issue of health care at the ADC. “Mr Assange should expect to receive only the most limited medical service at the ADC. Any suggestion to this Court that he will be fully evaluated and assessed for medical or mental health conditions is misleading.”

Holding the flame for the prosecution was Clair Dobbin, who attempted to create a world of textual reality rather than grounded fact. Policies of the US Bureau of Prisons were discussed; staffing and health care provisions were canvassed, including ADX facilities where inmates might be able to labour and improve their conditions. This would present a good case to the authorities to have their SAMs removed. Sickler suggested that what the BOP was claiming was different from practice.

While the prosecution smelled blood in suggesting that Sickler was actually unexperienced on the actual operations of X Bloc and the application of SAMs, Sickler rallied on the issue of how medical care would be supplied in such prison facilities. Dobbin made the assumption that he had no access to prison medical records. Not so, came the correcting reply. Dobbin then moved on to limiting the value of such knowledge gained: it was specific to Sickler’s clients; not of the same order as an academic or research account on medical care in the prison system. As for whether SAMs would be applied or not, this was up to the US Attorney General, who would determine the case on the basis of whether the prisoner had classified information threatening to “national security.”

Dobbin then engaged in what could only be described as a tidying up effort for one of the most notorious facilities in the US. ADX Florence was hardly atrocious, she insisted. Prisoners, she noted from a report, had claimed to form close personal relations with the staff. “If it’s such a great place,” Sickler retorted, “why are so many prisoners trying to get out?” Finding the report “incredulous,” he also suggested that institutionalisation brings with it fears of change. Under re-examination, he noted that a client of his at ADX was “begging to get out.”

On Sickler’s own example of the darker side of the US penal system – an individual who suffered a mental breakdown at the Metropolitan Detention Center in Brooklyn, New York, “severely beaten by correctional officers” and “thrown in the hole naked” – Dobbin was bizarrely disingenuous. Initial calls by Sickler that the individual suffered psychiatric illness might have been callously ignored; and it took a federal court to grant the individual bail and eventually receive a writ for treatment at the Bellevue psychiatric center, but “judicial oversight” had prevailed.

The prosecutor also referred to the case of Cunningham v BOP to illustrate that things, even if they had been dire, must have improved. The case involved ADX inmates, described as “five seriously mentally ill men,” along with six other ADX prisoners (“interested parties”) with “serious mental illnesses” suing the Bureau of Prisons in 2012 for violating BOP policy and the Eighth Amendment.

The class action argued that the authorities had failed to adequately diagnose and treat prisoners at ADX with grave mental illness. This eventually led to an approved settlement covering, amongst other things, a range of improved measures for screening and diagnosis for mental illness and the provision of mental health care and suicide prevention. Dobbin was being selective. As Sickler noted in his statement, “that same Court would find that the health care in ADX failed to meet basic standards of care for inmates.”

Dobbin, continuing her train of dissimulation, submitted another, deeply flawed example. ADX Florence had permitted a convicted terrorist known as the “Underwear Bomber,” Umar Farouk Abdulmutallab, time to see family members during his time at the facility. This belied an inconvenient reality: Abdulmutallab sued the Justice Department in October 2017 claiming that prison officials had held him in “long-term solitary confinement,” restricted his communication with relatives and force-fed him during hunger protests and fasting sessions. Abdulmutallab had also been the subject of SAMs, and incarcerated in the infamous H-Unit of ADX. Not exactly a paragon of US prison treatment, and not one of the prosecution’s better examples.

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