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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.

Assange’s Third Day at the Old Bailey: Bias, Politics and Wars on Journalism

The third day of extradition proceedings against Julian Assange at the Old Bailey resumed on the point of politics. Assange as a figure of political beliefs; Assange as a target of the Trump administration precisely for having them. The man sketching the portrait was Paul Rogers, Emeritus Professor of Peace Studies at Bradford University.

It is no mean feat trying to pin down Assange’s political system. Leftward, rightward, with resistance to the centre? Lashings of libertarianism; heavy doses of anti-war and holding the powerful to account? Such figures tend to be sui generis. In his submitted statement to the court, Rogers suggests a uniform theme. “The political objective of seeking to achieve greater transparency in the workings of governments is clearly both the motivation and the modus operandi of Mr Assange and the organisation WikiLeaks.”

On the stand, Rogers described the Assange method of influence and disruption: the release of the war logs, their influence on public opinion regarding the US imperium’s engagements in Iraq and Afghanistan, the revelations of 15,000 unaccounted civilian casualties. The butcher’s bill of the imperium, in other words, was laid bare by the WikiLeaks’ releases.

For Rogers, this approach jarred with various US administrations, but none more so than that of Trump’s. Assange’s entire approach and “what he stands for represents a threat to normal political endeavour.”

James Lewis QC for the prosecution made his effort to narrow, clip and sharpen the focus on Assange, questioning the expanse of political belief being attributed by Rogers. At times, the prosecution seemed suspended in a time capsule, suggesting, for instance, that political opinions were only applicable to governments and leaders. Rogers preferred a more complex picture: the evolving nature of what political opinion might constitute (for instance, it could include “transnational elites” and attitudes towards corporations). The issue of publishing an item or not could also constitute a form of political opinion.

Lewis then went on the attack, grumpy at the length of Rogers’ responses and suggesting that his testimony was biased towards the defence. Why had he omitted the views of such individuals as US assistant attorney Gordon Kromberg, who argued that prosecuting Assange had been a criminal rather than political matter? Again, Rogers took preferred the broad approach. Prosecutors of a certain rank tend to mimic the views of their superiors – that is their due. What mattered were those higher-ups who had initiated a change in policy regarding WikiLeaks to instigate a “politically motivated prosecution.” This could be demonstrated with some plausibility by considering the wider political context of different administrations. The Obama administration had set its heart on not prosecuting Assange; those in the Trump administration had warmed to the idea.

Not quite getting his pound of flesh, Lewis moved on to targeting the reasons why the Obama administration had gone cold on prosecuting Assange. Like many black letter lawyers on this point, the issue of Assange being confined in the Ecuadorean embassy has them in knots. “What would be the point [of arresting Assange] if he’s hiding in the embassy?” posed Lewis. Rogers, rather sensibly, suggested that this would constitute a pressuring move. “It would have made very good sense to bring it at that time, to show a standing attempt to bring Mr Assange to justice.” Lewis had also made a specious point. As investigative journalist Stefania Maurizi points out, individuals such as Edward Snowden have been duly charged despite fleeing the jurisdiction. Practical custody was hardly a necessary precondition to getting that paperwork ready.

Lewis proceeded to till the same ground as that covered in the testimony of Mark Feldstein, attempting to push the suggestion that the case against Assange might yield future charges, at least as believed by himself and his defence team. Rogers offered similar parrying: the Trump administration’s approach to Assange was distinct, its attitudes conveyed through the hostile remarks of former CIA director Mike Pompeo and the then hungry Attorney General Jeff Sessions. A difference in approach might be gathered from President Barack Obama’s commutation of Chelsea Manning’s sentence. This was Trump’s possible counter.

Post-lunch interest then turned to Trevor Timm, Director of Freedom of the Press Foundation. As he points out in the submitted statement, “The decision to indict Julian Assange on allegations of a ‘conspiracy’ between a publisher and his source or potential sources, and for the publication of truthful information, encroaches on fundamental freedoms.” WikiLeaks was a pioneer in secure submission systems such as SecureDrop, one that had been emulated by media outlets such as the Wall Street Journal and Al Jazeera.

It was incumbent upon journalists that they “develop relationships with their sources” and attempts to punish publishing activity arising from the use of “leaked documents of public importance” would face First Amendment difficulties.

The Trump administration, however, had proved bolder than its predecessors. The Espionage Act had been previously floated at such journalists as James Bamford, Ben Bradlee, Seymour Hersh and Neil Sheehan. It took Assange’s arrest and charging in 2019 to break with tradition.

The indictment, particularly in alleging that Assange had engaged in a conspiracy with Chelsea Manning to crack a military computer passport for reasons of remaining anonymous, would criminalise a common news practice and the whole pursuit of national security journalism. Were the prosecution permitted “to go forward, dozens of reporters at the New York Times, Washington Post and elsewhere would also be in danger.”

Lewis took umbrage at Timm’s claim, outlined in his statement, that Trump had engaged in an enthusiastic “war on journalism”. The FPF director was unsparing, suggesting that the indictment of the WikiLeaks publisher was part of this war, “and it is no exaggeration to say the First Amendment itself is at risk.” To Lewis, Timm replied with a salient reminder that Trump had tweeted 2,200 times about the press, describing them at stages as the “enemy of the people”. It was “very telling that Trump’s is the first one to try to bring a case like this since the Nixon administration.”

The prosecution preferred returning to that exhausted nag of an idea: that Assange could not be seen as a journalist. A form of fallacious logic came into play: the US Department of Justice had no interest in prosecuting journalists and would be breaching their own prosecutorial guidelines in doing so; Assange was not a journalist, therefore showing appropriate discrimination.

Timm had an appropriate response to this nonsensical approach. “In the US, the First Amendment protects everyone. Whether you consider Assange a journalist doesn’t matter; he was engaging in journalistic activity.” And if the DOJ was in breach of federal rules, it should follow that they be held accountable.

Timm also refused to ingest the prosecution line that the indictment was sufficiently narrow to only cover the publication of documents that had revealed the names of informants working for the US. Other charges in the indictment focused on criminalising the act of possessing the documents. That every claim would implicate journalists across the spectrum, as would “the mere thought of obtaining these documents.” A sinister, dangerous implication.

The prosecution was also caught up in what a “responsible journalist” might do. While the issue of unnecessarily publishing the name of a third party thereby endangering that person might raise matters of ethical responsibility, that, suggested Timm, was a separate question “from what is illegal or legal conduct.” A previous attempt to criminalise publishing the name of a US intelligence source had been made, by Senator Joseph Lieberman among others, in 2010 as a direct response to the WikiLeaks disclosures. But the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act never became law.

As for whether WikiLeaks had behaved appropriately or not in publishing the entire tranche of uncensored US diplomatic cables, despite it not being responsible for leaking the password to the relevant encrypted file containing the documents, Timm was firm. Governments should not have a hand in making such editorial judgments; the question centred on illegality, something which WikiLeaks could not be accused of.

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Assange’s Second Day at the Old Bailey: Torture, Drone Strikes and Journalism

The highlights of the second day of Julian Assange’s extradition proceedings at the Central Criminal Court in London yielded an interesting bounty. The first was the broader public purpose behind the WikiLeaks disclosures, their utility in legal proceedings, and their importance in disclosing instances of US extrajudicial killings, torture and rendition. The second involved a discussion about the practice of journalism and the politicised nature of the prosecution against Assange.

Human rights attorney Clive Stafford Smith and founder of Reprieve, an organisation specialising in investigating instances of US detention, rendition and disappearances, was called by Mark Summers QC for the defence. The disclosures by WikiLeaks, he claimed, had been important in the issue of challenging the legitimacy of US drone strikes in Pakistan. Successful litigation conducted in that country found such strikes “criminal offences and that criminal proceedings should be initiated against senior US officials involved in such strikes.” A high court in Pakistan had found that they constituted a “blatant violation of basic human rights.” Stafford Smith noted how the drone assassination program “leaked over to narcotics … they were targeting people for death for their involvement in drug trade because it was seen as funding terrorism. I could go on …”

The statement submitted to the court by Stafford Smith also emphasised how the WikiLeaks material disclosed on the treatment of detainees in Guantánamo were “the top of a very important discourse that would seem to be important in the public interest, about the abysmal intelligence used to detain prisoners and make important public policy decisions.” Stafford Smith’s statement also volunteers a twist: that the material published by WikiLeaks on the subject seemed to be “the best face that the US government could put on the crimes it had committed against the Guantánamo prisoners.”

In his testimony, Stafford Smith affirmed the mixed returns of those disclosures. The leaks initially seemed to portray “the very worst that the US authorities confect about the prisoners I have represented.” He was “frustrated” on first reading the WikiLeaks documents, thinking “they would leak what I get to see.” The mosaic, however, was pieced together to disprove the case against his client.

When it came to discussing the issue of enhanced interrogation techniques used by US personnel, Stafford Smith suggested the similarities shown in method to those used in the Spanish Inquisition. “As you go through the documentation WikiLeaks leaked, there are all sorts of things identified, including where people are taken and renditioned … and that was the case in Binyam’s case.” In being part of an effort to hold US officials to account for war crimes, Stafford Smith had a teasing pointer on the implications for WikiLeaks. “Anyone can be sanctioned who is seeking to assist in an investigation which could lead to ICC [International Criminal Court] investigation, which is what WikiLeaks does.” It was a pointed reminder that Assange’s defence team could well fall within the remit of US sanctions currently directed at the ICC by the Trump administration.

In his overall assessment, Stafford Smith suggested that, “The power and value of WikiLeaks disclosures about Iraq and Afghanistan can scarcely be understated, and are of ‘key importance’ to ‘evidence war crimes and human rights violations by the US and its allies.”

All of this left James Lewis QC of the prosecution more than a touch cranky. Stafford Smith had referred to cables that did not form the subject of charges against Assange. They were, claimed Lewis, irrelevant; the US case was only concerned with those documents that had revealed the names of informants. The defence claim is precisely the opposite: that such documents as referred to by Stafford Smith would also be covered by the charges of Assange “communicating” and “obtaining” classified material. The whole show could be the subject of a prosecution on US soil.

Cheekily, Stafford Smith suggested that Lewis was “wrong about the way in which cases are prosecuted” in the US. Merely because such cables were not outlined in the indictment did not suggest prosecutors would not use them in trial. “You cannot tell the court how this case will be prosecuted. You’re making things up.”

Such legal bickering proved too much for Assange. “This is nonsense,” he claimed from the dock. “Apparently my role is to sit here and legitimate what is illegitimate by proxy.” Cue Judge Vanessa Baraitser, who took witheringly to the intervention. “I understand of course you will hear things, most likely many things you would not like, and you would like to intervene but it is not your role.” While Assange remaining in court was “something the court would wish for”, it “could proceed without you.”

A feature that has stood out in the entire endeavour against Assange is the stench of politics. Lewis disagrees; the investigation into Assange and WikiLeaks has been an organic, methodical one, building since 2010 and flowering in 2020. The testimony of journalism academic Mark Feldstein suggested otherwise. He referred to a Washington Post piece from November 2013 highlighting the decision by the Obama administration to not proceed. Officials from the Justice Department did stress at the time that no “formal decision” had been made, as the grand jury investigating WikiLeaks remained impanelled. But there was “little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.” The implications of prosecuting Assange were evidently clear: to do so would lead to the obvious conclusion that US news organisations and journalists would also face the prosecutor’s brief.

This cautionary attitude was not to be found at the Federal Bureau of Investigation. In 2017, they were seeking a “head on a pike.” By then, President Donald Trump had moved into an offensive mode against journalists; the then director of the Central Intelligence Agency Mike Pompeo was resolute in categorising WikiLeaks as a hostile non-state intelligence agency, while Jeff Sessions as Attorney-General was all zeal in asking prosecutors to take a closer look at the Assange case.

But the worm had not entirely turned. Federal attorneys such as James Trump, a figure in the prosecution of former CIA officer Jeffrey Sterling, who had leaked classified material to journalist James Risen, and Daniel Grooms, demurred. Both were concerned that undertaking such a prosecution would fall foul of the First Amendment, and be plagued by legal and factual challenges.

Feldstein pushed home the points in his testimony in deeming the efforts against Assange political in nature. The scope of the charges had no precedent; the Obama administration had shown reservations in embarking on what would be a fraught process; the wording of the superseding indictment suggested political leanings; and Trump had shown a deep antipathy for the press. Previous efforts to prosecute journalists, he concluded, were “obviously highly political.”

Undeterred, the prosecution resorted to a conventional tactic: accusing the witness of speculating. The reality Feldstein needed to consider was whether names had been revealed in the publication of such documents. Doing so would result in harm. If this had been the case, suggested Feldstein, the prosecution might have simply used the Intelligence Identities Protection Act of 1982, a narrower statute for the purpose.  Instead, terms such as “conspiracy” and “recruiting” – the sort normally coupled with “terrorist”, had been deployed. Besides, the issue of “harm” tended to be a bread and butter response by governments that was impossible to prove and used to conceal improprieties.

As a case in point, that most pertinent of precedents, the Pentagon Papers, was cited. As Feldstein noted, the arguments made by prosecutors at the time about the consequences of their disclosure – possible prolongation of the Vietnam War, identification of CIA officials, exposure of war plans – were also caught up in the concept of “immediate and irreparable” harm. It subsequently transpired that one prosecutor thought no harm would arise at all. What mattered was the effort by the Nixon administration to question the loyalty of media outlets.

Standard journalistic method, Feldstein reiterated, directs the source, asking what is needed and seeking more information as relevant. The journalist effectively works with the source. Criminalising that as a case of “conspiring” would make the “most of what investigative journalists do … criminal.”

On the point of the journalist’s craft, the prosecution continued to push the precarious argument that the publishing activities of the New York Times were different from that of WikiLeaks. Journalists did not steal or unlawfully obtain information. Here, Feldstein conceded, things could be murky. “We journalists are not passive stenographers. To suggest receiving anonymously in the mail is the only way is wrong.” As to whether he had engaged in publishing such information, Feldstein was unequivocal: not so much “classified documents” but certainly “soliciting and publishing secret information.”

A balanced overview of the day’s proceedings would have found Lewis struggling with the prosecution narrative focusing on alleged harm caused by Assange, the defence resolute in returning to the big picture element of the disclosures. This was too much to expect from the pedestrian reporting of a Fourth Estate more obsessed with Assange the man. From The Guardian to the Daily Beast, only one thing mattered: the warning by Judge Baraitser that Assange should keep silent and avoid any outbursts. As Kevin Gosztola observed, “US prosecutors win the news cycle on Day 2.”

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Sinking Transparency at the Old Bailey: The Assange Extradition Hearing Resumes

The fine circus that is British justice resumed at London’s Central Criminal Court on September 7, with the continued extradition proceedings against Julian Assange. Judge Vanessa Baraitser was concerned that approximately 40 individuals had received remote video access they apparently should not have. “In error, the court sent out orders to others who had sought access. I remain concerned about my ability to maintain the integrity of the court if they are able to attend remotely.”

Showing a continuing obsession with controlling her court as manorial property, Baraitser felt that having such individuals access the proceedings might lead to breaches (she did not specify which ones). “Once livestreaming takes place, the court cannot manage this breach even less when the person is outside the jurisdiction.” Inadvertently, the judge had put her finger on the very heart of WikiLeaks and the terror it inspires in the establishment: an event or occurrence that is published, remotely; information, previously confined, escaping. “I want to make it clear that the public interest and allowing remote access is unlikely to meet the interests of justice tests.” To wit, she needed new applications from the excluded observers. “For those who consider they still cannot travel to the UK to attend the hearing, then they need to apply again and I will consider it.”

One of the organisations excluded by Baraitser’s ruling was Amnesty International, a body that has sent fair trial monitors to observe the practices of regimes more authoritarian and less inclined to observe the rule of law.Marie Struthers stated it plainly, noting the initial rejection of the application for a physical spot last month, followed by the granting of six remote viewing slots, reduced to one, then, it transpired, none. “This is not normal.” To have the organisation’s “legal observer … find out this morning that he had not been granted even REMOTE access to the Assange proceedings is an outrage.”

Rebecca Vincent, director of international campaigns of Reporters Without Borders suggested that allowing “so few trial monitors [and] journalists into today’s hearing seemed more of a political decision rather than a logistical one.” To such exclusions could also be added parliamentarians.

With assured opacity and a lack of transparency, the scene was set. What would Judge Baraitser come up with to restrict the scope of Assange’s case against extradition to the US? One lay in controlling the presentation of witness statements. The defence suggested a full show, assisting witnesses in going through their statements in court. The public might be better informed of the issues.

Baraitser offered a novel reading: doing so would not assist the defence, the public or Assange “and would not be a fair.” Another way of reading it would have been: no justifications and podiums for the cause. James Lewis QC of the prosecution thought that the statements were adequate enough.  It followed that they would be made public. “In my view,” concluded Baraitser on that point, “there is no benefit whatsoever to allowing the witnesses give evidence in chief.” Thirty minutes for orientation was more than adequate.

Defence counsel Mark Summers QC focused on the staggered nature of the US indictment against Assange, beginning initially as a single charge, ballooning into an enlarged indictment stuffed by allegations of espionage, followed by a second superseding indictment. “It is a curiosity that the US had, in previous hearings, been content for the hearings to go ahead in February and May, presumably knowing that this was coming.” It was not initially clear what had changed, but by August 21, the material put before the court constituted a “potential standalone basis for criminality.” Irrespective of whether the US rejected the existing allegations linked to Chelsea Manning,“Assange can be extradited and potentially convicted for this conduct on its own and this is a resounding and new development in this case.”

One feature of the prosecution attacked by Summers was the mentioning of Assange’s alleged “co-conspirators” linked to hacking incidents. As Kevin Gosztola reminds us, they had been subject of legal prosecutions in the US and UK a decade ago, while Sigurdur “Siggi” Thordarson was mentioned in a filing by the prosecution last year. It followed that material from that case, which involved conviction in Iceland for fraud, theft and impersonation of Assange, should have been included in the previous indictment. The defence also brought up those rich remarks by the Icelandic Interior Minister at the time, who “believed the investigation [of Thordarson by the FBI] was in order to ‘frame Assange’.”

Other co-conspirators mentioned were Hector Xavier Monsegur (“Sabu”), Jake Davis (“Topiary”) and Ryan Ackroyd (“Kalya”), all making legal appearances in the Southwark Crown Court for their alleged hacking spree with LuzSec. The defence contended that, as they were all prosecuted in the UK despite “competing US indictments being issued during the currency of the UK case,” Assange should have been prosecuted in the UK alongside such conspirators at the time. “The forum bar is obviously engaged.”

The prosecution case, in short, had become a quite different creature to the beast it originally was. The indictment now claimed, for instance, that Assange and WikiLeaks had assisted former security contractor Edward Snowden to evade arrest. The prosecution had also brought the focus back on alleged nefarious cyber activity on Assange’s part, thereby discrediting the need to publish material exposing, for instance, US war crimes. Targeting the hacker distracts from the more sinister implication of targeting a publisher.

“It would be extraordinary for this court to be beginning an extradition hearing in relation to allegations like that within weeks of their announcement,” submitted Summers, “without warning and even more extraordinary to do so in circumstances where the defendant is in custody.”

The stunning lack of fairness was emphasised. It was “impossible” for Assange’s team to “deal with the allegations being put to him and in relation to material for which you have been provided no explanation for their late arrival.” Inadequate time had been given and inadequate notice, on dealing with these new “separate criminal allegations.” With that in mind, Summers submitted that the court excise the new allegations.

Obstacles to adequate preparation have never bothered the judge in this case. With her usual rusted stubbornness, Judge Baraitser put the blame down to the defence, essentially approving the conduct of the US Department of Justice. Excision could only be granted in instances of a bar outlined in statute or a case of abuse of process. But not even the forum bar seemed to sway her.

Failing in that application, Summers moved to the issue of an adjournment to January. It was not an application without risk, given Assange’s conditions in Belmarsh prison. “We have not been able to answer the allegations which have only been made in the last few weeks. This has been made worse because of the conditions we are having to work under.” No earlier application had been made for the very simple reason that Assange had not seen the new request, hobbled by poor access to documentation provided by his defence team via traditional postal means. “We have not had an opportunity to meet and consult with him.” He still had not received “the revised opening note” with accompanying documentation that the DOJ was developing more than a narrative, but the basis for “standalone criminality capable of sustaining a conviction if accepted in its own right.”

Judge Baraister initially offered a nibble of tokenistic interest. She acknowledged that the defence team had not seen Assange for some six months, and wondered if they had spoken to him by phone. Yes, came the reply, but these were incoherent episodes, consisting of two short conversations. He had “to take in information from us on – any view – complex documents and to make him aware of the issues and to take a decision on them.” A 10 minute adjournment followed. Baraitser’s decision: the defence should have applied previously to do so but did not; the defence, in not doing so, should have acted as if the proceedings would continue.

Peering through the ruins of a process that is becoming more political with each session was the testimony of Mark Feldstein of the University of Maryland, authority on history and journalism. Feldstein’s point in defence of WikiLeaks is outlined in his statement: drawing exacting definitions of what journalism is or otherwise within the US Constitution makes little sense. “Assange … is protected by the First Amendment whether he qualifies as a journalist or not.”

The testimony proceeded to develop such ideas. Thousands upon thousands of leaks of classified information had informed “the public about government decision making but they also evidence government dishonesty.” Journalists made Pulitzer Prize winning careers in using material from such leaks, an activity protected by the First Amendment as “the public had a right to be informed.” Charging publishers and news outlets was simply not done; authorities preferred to charge the source or whistleblowers. While history evinces cases of “presidential enemies” being sought, the line had always been drawn. Till now.

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Vaccine Nationalism, Big Promises and Warped Speed

From sneering dismissiveness of the coronavirus as nothing more than a common cold to a grand promise to find a vaccine, President Donald Trump is all promises. “We remain on track to deliver a vaccine before the end of the year and maybe even before November 1st,” he told a White House news conference on September 4. “We think we can probably have it sometime during the month of October.”

Operation Warp Speed, he tried convincing the press corps, was doing what it was required to do. He had spoken to the head of Pfizer – “great guy”. He was expecting “the results of its trial very, very shortly – next month – but very shortly.” To Pfizer’s efforts could be added those of Johnson & Johnson (“also doing very well”) and Moderna. “We have some really great companies. They’re all doing very well.”

Even within go-it-alone USA, mistrust reigns on when a working vaccine will be ready. An election is in the offing, and any proximity to the date of November in terms of miraculous discoveries will be seen as smelly. Democratic Vice Presidential hopeful Kamala Harris, beating the electoral drum, sees some votes in telling citizenry of the republic that Trump cannot be trusted about anything to do with the vaccine. He will put the toes of public officials against the fire; he will marginalise and sack critics. “If past is prologue,” she told CNN’s State of the Union, “they will not, they’ll be muzzled, they’ll be sidelined.”

There is also much to suggest that no country, or corporation, should be entirely trusted in this endeavour. The process of finding a vaccine is so intermingled with promises of a speedy discoveries and rapid manufacture, it has left even the most ardent vaccinators worried. The scientists have been told to work miracles in the laboratory; pharmaceutical giants are being told to be generous, yet continue to sign agreements with governments that will enable them to charge handsomely when the time comes. As Adam Kamradt-Scott, a student of global health security relevantly notes, such “commercial-in-confidence agreements are usually signed in secret, often with different prices being charged to different governments depending on whether they are the first customer or 30th and their ability to pay.”

The number of candidate vaccines is growing: some 160 at the moment, 31 or so having entered human clinical trials. Negotiating barriers are being treated as minor obstacles to be danced around with lithe finesse. The urgency is such that even Russian President Vladimir Putin has spoken of one of his daughters taking “part in the experiment” of the Sputnik V vaccine.

The World Health Organization has been attempting to quash any ideas of needless haste, stressing the values of thoroughness and safety. Chief scientist Soumya Swaminathan is trying to be resolute in that regard. “No vaccine is going to be mass-deployed until regulators are confident, governments are confident, and the WHO is confident it has met the minimum standards of safety.” All vaccine candidates would, she claims, have to “go through the Phase III trials.”

The Director-General of the World Health Organization, Tedros Adhanom Ghebreyesus, is also preaching against the temptations of vaccine nationalism. “Vaccine nationalism will prolong the pandemic.” He has urged countries to join the COVAX global vaccine allocation plan, and announced on Friday that 78 high-income states had put their names to a collective now numbering 170. Run by the WHO and the Gavi vaccine alliance, the object is the equitable distribution of vaccination shots, when the time comes.

There is much trumpeting about the merits of COVAX, much of it from the collective itself. The Gavi vaccine alliance CEO, Seth Berkley, is calling the collaboration unique, the 170 countries comprising 70 per cent of the globe’s population. It “has the world’s largest and most diverse portfolio of COVID-19 vaccines, and as such represents the world’s best hope of bringing the acute phase of this pandemic to a swift end.” Joining the group will mean that “both self-financing countries and funded countries will gain access to this portfolio of vaccines, as and when they prove to be both safe and effective.”

There are a few efforts seeking to limit the sharper effects of vaccine nationalism, though they are by no means assured of success. The Open COVID Pledge, comprising a number “of scientists, lawyers, entrepreneurs and individuals working to promote the removal of obstacles involving intellectual property in the fight against COVID-19” is one such enterprise. Creative Commons has been given the task of steering the pledge through such difficult waters. “We believe this initiative,” claims the OCP, “will have a profound impact beyond the COVID-19 pandemic.” Good to be optimistic in such matters.

The COVAX effort has not done away with the problems of vaccine bilateralism, which remain pressing. Paul Hudson, CEO of Sanofi, sees the US “right to the largest pre-order” of the first vaccine as manifest destiny. Adar Poonawalla, chief executive of the Serum Institute of India, which by volume is the largest maker of vaccines, is also clear that “the vaccine, at least initially, would have to go to our countrymen before it goes abroad.” Countries who have the cash and the means are looking out for their own.

The outcome, as things, stand, promises to be traditional in geopolitics and health. Old divisions and inequalities will be reasserted with marked savagery. The rich and affluent will get first dibs and first jabs; the impoverished will have to wait their turn. And the virus will continue to do its work.

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Pandemic Reflexes: Lockdowns and Arrests in Victoria

Ugly. Rough. Police in the Australian state of Victoria muscling their way in. The father and children watching. It had all arisen because the pregnant mother in question had engaged in conduct defined as incitement. In a post on her Facebook page, Zoe Buhler had urged Victorians to protest the coronavirus lockdown rules over the weekend. She encouraged the practising of social distancing measures to avoid arrest and the wearing of masks, subject to medical exceptions. “Here in Ballarat we can be a voice for those in Stage 4 lockdowns [in metropolitan Melbourne]. We can be seen and heard and hopefully make a difference.”

Social media sniffers in the state police picked up the scent and repaired to her Ballarat home in Miners Rest. Buhler promised to take down the post. “I didn’t realise I was doing anything wrong. I’m happy to delete the post. This is ridiculous.” She noted the presence of her children; the fact that she was due for an ultrasound appointment in an hour. She inquired about clarification about the term “incitement”, a word she genuinely did not comprehend.

Subsequently, she claimed the police had shown some basic courtesy. “Sorry about my bimbo moment,” she stated on reflection. But she refused to resile from her view that the conduct had been “too heavy handed, especially [to arrest me] in front of my children and to walk into my house like that.” She remains ignorant about the meaning of incitement.

The Buhler arrest was coarse, incautious, suggesting a tone-deafness prevalent in law enforcement. It was unusual in ploughing common furrows across the political divide. The Australian was assuredly predictable in its denunciation, having never quite taken the virus that seriously (deaths we shall have, but managed responsibly), though it was hard to disagree with associate editor Caroline Overington’s plea. “You can accept lockdown and support saving lives but you should still oppose cuffing anyone – much less a pregnant woman.”

Janet Albrechtsen took matters into another register with her school girl claim of fascism, a term she had no inclination to define. Albrechtsen has never been troubled by forensic details, but she was correct to assume that Buhler will not necessarily be seen as hero or martyr. Protesters are approved or repudiated depending on the flavour of the moment, and the ducking stools would be out. “Maybe she’s into crystals?  Maybe she’s an anti-vaxxer?” She certainly did not share views “common with rich hippies in Byron Bay.”

The legal fraternity were more than a touch unsettled. The Victorian Bar was deeply unimpressed by a police operation that seemed, not merely rough in execution but untutored, and said so in its media release on September 3. “We recognise,” its president, Wendy Harris QC explained, “the importance of compliance with the law, but enforcement of those laws needs to be proportionate and consistent.” Arresting Buhler and handcuffing her in her home in front of her partner and children “appeared disproportionate to the threat she presented.” Case law in Victoria – Slaveski v Victoria and Perkins v County Court of Victoria – had held “that a police officer is not entitled to use handcuffs on a person merely because an arrest is made.”

Another thing also niggled the Victorian Bar Association. “Consistency in the enforcement of the law is also critical; without it, confidence in the rule of law is undermined.” This was a less than subtle swipe at mixed responses from the police: the enforcement measures taken against Buhler were “apparently at odds with other reported and more measured responses by authorities to organisers and protesters of similar protesters planned or carried out in contravention of public health directives.”

Greg Barns, National Criminal Justice spokesman of the Australian Lawyers Alliance, was similarly shaken. Writing in The Age, he was baffled by the views of Assistant Commissioner Luke Cornelius, who claimed that the police had been “polite” and “professional.” Police were good enough to assist Buhler to contact the hospital to make another appointment for the ultrasound. Hardly the point, fumes Barns. “They should not have arrested her in the first place.” The result of such muscular policing has been to gift Buhler the PR campaign and ensure “greater sympathy for those who are wanting to launch protests against the Premier [Daniel Andrews] and his government’s draconian laws.”

The mild mannered Rosalind Croucher, president of the Australian Human Rights Commission, also took to the debate, “dismayed” by the Buhler arrest. “In times of crisis, such as this pandemic, our rights are as important than ever.” Temporary measures to limit rights and freedoms to control the spread of infection might have been necessary but “must always be proportionate to the risk – and managed appropriately.”

Buhler’s case is one of several arrests conducted this week, some of which would have caused fewer twangs of sympathy or outrage. James Bartolo decided to mix reality television with pandemic law enforcement, filming his own arrest and posting it to Facebook. Unlike Buhler, Bartolo is your traditional figure of practiced conspiracy, claiming to have better insight into the world of manipulated wickedness than most. Through The Conscious Truth Network, he chest-thumpingly advertises his credentials as “truth seeker, freedom fighter, utopian advocate.”

This fine former specimen of the Australian army and addled body builder is convinced that COVID-19 is but a Trojan horse, the fiendish, fictional product of a “treasonous and corrupt network of filth” intent on enslaving us.A truculent Bartolo, in his three-minute long video, is seen arguing that the police was unlawfully trespassing on his property. “You don’t have authorisation to be on the property.” But the paperwork was in order; the police duly made their way in, arresting the 27-year-old for alleged incitement, possession of prohibited weapons and two counts of resisting them. An advertising stunt had been successfully executed.

These displays have caught the Victorian Police flatfooted. It was always bound to resonate with some politicians. On September 4, David Limbrick of the Victorian Legislative Council and member of the Liberal Democrats wrote an open letter to Victorians expressing his shock and disappointment with the state government’s response, claiming that those authoritarians who had forced Victorians to wear masks “and their enablers have been unmasked.” While not explicitly pointing out specific acts of the Victorian police, the theme of his note was clear enough. “The intrusion into our lives gets more personal and more extreme every day. The Government has given the police free reign [sic], so no wonder their behaviour just gets more outrageous.”

Limbrick has also encouraged protests, but suggests forms that do not breach the regulations. “It’s simple – bring your pots and pans, beep your horns at 8pm, and let your neighbourhood know that we don’t have to suffer in silence.” An even sounder suggestion is advanced by Barns. Make better laws, avoid sloppy drafting which leaves “enormous discretion in the hands of the police” and “educate and try to reduce tension and stress in the community.” As for Buhler’s case, they could have made things simple and civil: take her up on the offer to remove the Facebook post, explain why it was in breach, and be on their way. A sensible thought for an insensible time.

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The Face of British Trade: Tony Abbott Goes to Blighty

The question was put by interviewer Kay Burley on Britain’s Sky News network to UK Health Secretary Matt Hancock. “Is Tony Abbott the right kind of person to represent us – even if he’s a homophobic misogynist?” Hancock, while preferring to focus on the former Australia Prime Minister’s expertise in trade, also performed something of a distancing act. “I think the best thing to say is that I am totally focused on the coronavirus crisis and the future of the NHS and social care.”

Abbott is a man of certain talents, but it is doubtful whether trade is one of them. He is certainly a person of certain tendencies, sharpened by a long and bruising political career. There are few hornet’s nests he has not kicked, few waters he has not muddied in the name of conviction and madness. For years he was the acceptable face of Australian reactionary politics, entrusted with the task in the Liberal Party of suppressing the moderates and Tory “wets.” His time as prime minister was short lived; his role as political saboteur, lengthy.

The prospect of becoming Britain’s chief trade envoy as part of the Board of Trade has gone down in a good number of circles like a lead balloon. The disturbance has been such as to prompt some caution from a spokesman for Prime Minister Boris Johnson. “No decisions on the Board of Trade have been made.”

Labour leader, Sir Keir Starmer, has led the pack hoping to change Johnson’s mind. “I have real concerns about Tony Abbott and don’t think he’s the right person for the job.” Labour MP Marie Rimmer wondered if there were “trade experts who aren’t homophobic and misogynists.”

The UK’s Shadow Trade Secretary Emily Thornberry was beside herself at the prospect of Abbott becoming the UK trade supremo. “I find this appointment absolutely staggering,” being “disgusted” by it on a “personal level.” Johnson had essentially given his blessing to an “offensive, leering, cantankerous, climate change-denying, Trump-worshipping misogynist.” Were it not “so downright humiliating, it would be almost hilarious.”

Even certain members of the Conservative Party also found it hard to stomach.  Conservative MP Caroline Nokes, Chair of the Women and Equalities Committee, was dismayed by what she considered the sheer awfulness of the idea. “He is a misogynist, he has very poor views on LGBTQ rights.” Such a man should never “be anywhere near our Board of Trade.”

Some of the criticism of Johnson has missed the mark. Brexit Britain and Abbott share a common fibre. Much of the movement to leave the European Union could be put down to the politics of sentimental, and sometimes vicious reaction. Telling Johnny Foreigner to sod off shares a certain stinging quality with ‘turn back the boats’, the slogan Abbott used so successfully to win government and implement as part of Operation Sovereign Borders. Any political party wishing to win office in Australia must now contend with that seemingly immoveable legacy.

Abbott’s antipathy to the EU, albeit one that has changed over time (he had been a gruff Remainer), strikes all the right Brexit high notes. The bureaucrats in Brussels, Strasbourg and Luxembourg are the faceless terrors of sovereignty; the Brexiteers, the audacious reclaimers of it. “The revolt of the British electorate against Brussels’s encroachment shows, yet again,” he wrote with praise in January, “that there’s nothing inevitable in the course of history.” Britain’s departure from Europe was no less significant than the fall of the Soviet Union, the end, he suggested, of supranational bodies that stifle and choke in the name of centralising objectives.

Abbott is optimistic for Britain, almost to be the point of being gaga. “As a former prime minister of a country that has a perfectly satisfactory ‘no deal’ relationship with the EU,” he wrote in the Spectator Australia in March last year, “let me assure you: no deal would be no problem.”

Whatever Britons’ views of Brexit and the EU, many would part ways with Abbott on his more colourful takes on life. He is a dedicated climate change sceptic, remarking in October 2017 that environmental policies seeking to address climate change resembled the practices of “primitive people once killing goats to appease the volcano gods.” His views of women are stubbornly unreconstructed, having an old kitchen and home flavour to them. When asked by Labour MP Claudia Webbe of the Commons foreign affairs committee about previous remarks (made in 1998) that men’s physiology and temperament was better adapted than women to exercising authority and issuing commands, he feigned ignorance. It “doesn’t sound like anything I’ve said.”

He also goes weak at the knees for such strongmen as Hungary’s Viktor Orbán, a person he regards as identifying the correct crisis to confront: not threats posed by climate change (a bit of warming never hurt anyone) but the “extinction” crisis brought about by “our failure to produce more children.” Get thee to bed, Christian Europe, and multiply.

Johnson, as he tends to when controversy comes over to bang on his door, is hoping interest will wane as the flames die. But Abbott is incapable of lying low. Extra fuel is always ready for the fire. Even amidst the criticism of his suitability, he could not resist flourishing his Social Darwinian streak in a speech to the Policy Exchange, a conservative think tank he enjoys addressing. He accused governments, with the exception of Sweden, of approaching the coronavirus “like trauma doctors; instead of thinking like health economists, trained to pose the uncomfortable questions about a level of deaths we might have to live with.”

On his calculations, Australian lockdown efforts to prevent what were predicted to be 150,000 deaths were rash and insensibly generous. “If the average age of those who would have died is 80, even with roughly 10 years of expected life left, that’s still $200,000 per quality life year – or substantially beyond what governments are usually prepared to pay for life-saving drugs.”

The international trade secretary, Liz Truss, has adopted guerrilla tactics in the House of Commons, beating off questions on Abbott’s suitability by attacking Labour for “absolute hypocrisy.” That party, she suggested, was hardly pure on the issue of misogyny, preferring to “virtue signal and indulge in tokenism rather than take real action to improve the lives of women.”

When asked about whether Abbott’s appointment might signal an embrace of climate change scepticism in future trade deals, Truss stormily accused the left for being “intolerant of anyone who doesn’t agree with them, but are prepared to defend anything from their own friends.” Abbott would approve.

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Fruits of Illegality: The NSA, Bulk Collection and Warrantless Surveillance

He has become part of the furniture when it comes to discussions about privacy rights and personal liberties, arguably an odd sort of thing for a man who also dealt in the shadows of intelligence secrets. But Edward Snowden has been doing his bit to reveal and chip away at the foundations of the national security state that continues to thrive. The advent of coronavirus and pandemic surveillance will merely serve to advance it, but in June 2013, Snowden’s exposures of National Security Agency practices were raw and unsettling to the wonks of the establishment.

The most troubling of the revelations was not that the NSA conducts surveillance, its natural bread and butter; it was how such grubbily enterprising efforts as the metadata collection program were allowed to flourish with feral abandon. The forests of paranoia after the 9/11 attacks on US soil proved rich for such legislative instruments as the USA PATRIOT Act. Section 215, in particular, authorised the bulk collection by agencies of telephony metadata, known in the trade as call detail records. It had been barely read by members of Congress in a hurry; patriotism can encourage a special sort of dedicated illiteracy.

The NSA program, at least in that form, was ended with the reforms passed by the USA FREEDOM Act of 2015. Critics were quick to note that section 215 was merely given a trim and a clean. The original provision permitted the NSA to store call detail records (time, duration, the numbers communicating in a call, excluding the content of the call) and search them as required. Since the changes, such records are held by telephone companies; the agency can only request them via an order of the Foreign Intelligence Service Court.

The provision, according to Human Rights Watch, “still permits the government to collect a staggering amount of data, in secret and without a warrant, on how people use their phones, chilling freedom of expression and association.” Between 2015 and 2019, the program cost $10 million and could only boast one significant lead, a palpably poor return for even the most devout surveillance types.

The expiry of Section 215 powers in March 15, 2020 led to a merry legislative jig. The Senate passed the USA FREEDOM Reauthorization Act in May. The oversight measures proposed by Senators Mike Lee (R-UT) and Patrick Leahy (D-VT) made it through, expanding the role of independent advisers to the court established by the Foreign Intelligence Service Act of 1978. But in so doing, the Senate failed to adopt the amendment proposed by Senators Ron Wyden (D-OR) and Steve Daines (R-MT), which would have prevented the government conducting warrantless surveillance on internet browsing and search histories.

Wyden was more than a touch irritated at his colleagues. “The legislation,” he outlined in a statement, “hands the government power for warrantless collection of Americans’ web browsing and internet searches, as well as other private information, without having to demonstrate that those Americans have done anything wrong.”

The Senate also refused to prohibit the use of the Foreign Intelligence Surveillance Act of 1978 and surveillance conducted under the Article II executive power against people in the United States or in proceedings against them, both ideas of Senator Rand Paul (R-KY).

Privacy advocates were feeling a touch deflated. It took a decision by a three-judge panel of the 9th Circuit Court of Appeals handed down on September 2 to add a spring to their steps, if only after the fact. The decision in United States v Moalin was not bound to make them break out into a canter. The facts of the case covered the previous incarnation of bulk surveillance exposed by Snowden. The outcome was also a tad troubling. The four appellants, Somali immigrants convicted in 2013 for transferring $10,900 in support of the terrorist group al-Shabaab, had their convictions upheld.

The judges “held that the government may have violated the Fourth Amendment [protecting against unreasonable searches and seizures] when it collected the telephony metadata of millions of Americans, including at least one of the defendants, pursuant to the Foreign Intelligence Surveillance Act.” Unfortunately for the defendants, “the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial.” The application for suppression of the evidence – what were described by the defendants as the “alleged ‘fruits’ of the unlawful metadata collection,” failed. Additionally, the FISA wiretap evidence was not held to be “the fruit of the unlawful metadata collection.”

Scattered through the judgment are a few sprinklings of hope for privacy advocates. Some of these are merely confirmations and recapitulations. Others are clarifications for the intelligence community. The government had, for instance, argued that “ordinary criminal investigations” should not be treated in the same context as those in a “foreign intelligence context.” The Fourth Amendment protections should be applied differently.

Not so, claimed the panel. The judges acknowledged that the Fourth Amendment required notice to be given to a defendant “when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from the surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities.” As the Fourth Amendment did apply to foreign intelligence investigations, it followed that “US criminal defendants against whom the government uses evidence obtained or derived from foreign intelligence may have Fourth Amendment rights to protect.” The problem for the defendants here was that failure to provide notice by the government did not prejudice them.

The American Civil Liberties Union’s Patrick Toomey saw the ruling as vindicating “that the NSA’s bulk collection of Americans’ records violated the Constitution.” The mandatory notice requirement for authorities constituted an essential “protection” in a field of “novel spying tools.” The Snowden legacy continues to be harvested, if unevenly.

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Good Riddance: Facebook Threats and News Opportunities

News and information can only go so far. Despite the utopian fluffiness about having multiple platforms, the consumers of news want only one thing: the reassurance that their prejudice is secure and their world view left unchallenged. The reader of Rupert Murdoch’s Sun would dare not venture into the sinned waters of The Guardian. Those of The Guardian would argue that readership was an oxymoronic term when used for the Sun.

Facebook did nothing to cure this. It simply secured an easy avenue for having pre-cooked material, tailored with its platform, available for outlets wishing to furnish them with content. Through its algorithmic tyranny, it has assisted in reducing users to a standard conformist imbecility. Using Facebook for news, which it admittedly does not create, is using a low grade heroin for affirmation, a junkie’s form of denial. It offers little by way of redemption: you are encouraged, through your habitual likes and visits, to simply ingest the same hog feed.

Like Google, Facebook is facing Australia’s proposed draft media bargaining code with concern and threat. The draft legislation proposes to involve government regulators in the relationship the company has with news sharing and largely arose because of foot dragging by the digital giants in negotiations with Australian regulators. While Facebook News, a service that pays approved publishers, was established in the United States, no Australian equivalent was forthcoming.

Taking the voluntary element out of proceedings, an impatient Australian Consumer and Competition Commission decided to produce a mandatory code on revenue distribution. It romantically and mystifyingly, envisages Australian news outlets, “including independent community and regional media”, getting “a seat at the table for fair negotiations with Facebook and Google.”

The response from Facebook’s Australasian managing director Will Easton is a stab at being ominous. “Assuming this draft code becomes law, we will reluctantly stop allowing publishers and people in Australia from sharing local and international news on Facebook and Instagram. This is not our first choice – it is our last.”

The news field is bedevilled by unsympathetic characters. Remember the now defunct News of the World, the world’s finest lavatory reading? The Leveson Inquiry? Few should feel for such giants as News Corp, whose contribution to the news effort, including bankrupting the integrity of the Fourth Estate, has left a dubious, often sordid legacy. Murdoch has, over the years, smacked his lips at the prospect of making Facebook pay for the content of his outlets, which he regards almost whimsically as meritorious. In 2018, he suggested that, if the company wanted “to recognize ‘trusted’ publishers then it should pay those publishers a carriage fee similar to the model adopted by cable companies.” Comically enough, he claimed that such publishers “are obviously enhancing the value and integrity of Facebook through their news and content” but not being adequately remunerated for them.

A government policy favouring such a beast is worthy of scepticism and the spectre of News Corp sitting at the table with Facebook is a spectacle of disturbing hilarity. But Facebook’s relationship with news is also fraught, contending with claims that its platform permits all sorts of matter, masquerading as news, to make its way through the feed. This is a point media organisations such as Nine never tire of reminding the company of, claiming itself to be a provider of “reliable news content to balance the fake news that proliferates on [Facebook’s] platform.” The University of Canberra’s 2020 Digital News Report also found that some 36 per cent of Australians were “most worried about misinformation” on Facebook.

The company is also being rather selective whenever it becomes the news. Take the way Easton describes the consequences of following the proposed code, the most galling of all being that Facebook will supposedly have to pay for all shared news content. But not every item of news will necessarily require payment (heaven forfend). In some cases, the value is bound to be negligible. The ACCC acknowledges that “Facebook already pays some media for news content. The code simply aims to bring fairness and transparency to Facebook and Google’s relationships with Australian news media businesses.”

The language of Easton’s statement is also reminiscent of dictatorial benevolence: We support local news outlets, “particularly local newspapers”; “we recognize that news provides a vitally important role in society and democracy”, though our “News Feed is not a significant source of revenue for us.” The Facebook News Feed generated gratis “additional traffic worth an estimated $200 million AUD to Australian publishers.”

The question now on the lips of news sharers is whether Facebook will make good its threat. The Treasurer Josh Frydenberg is feeling bolshie about it all. “We don’t respond to coercion or heavy-handed threats wherever they come from.” Former ACCC chairman Allan Fels is unworried, proposing that the government deploy a weapon far more discomforting to the Silicon Valley giants. “They could drop the code and just apply a tax – a general tax on digital transactions. And the platforms have far more to lose from that.”

Some users will feel the digital pinch. The Digital News Report claims that 39 per cent of Australians use Facebook for news in the general category (the global average being 42 per cent); 49 per cent have done so for news specific to COVID-19. But in the jungle of punditland, views vary. Business law academic Rob Nicholls shifts the emphasis back to the news producers themselves. Should Facebook bar its sharing services, he writes in The Conversation, “it will potentially lead to very uncompelling content on both Facebook and Instagram. Can you imagine Instagram or Facebook without the ABC or Australian news sources?”

Facebook, Nicholls also reasons, clearly misunderstands the nature of mandatory industry codes. Akin to a franchising code of conduct that acknowledges the power imbalance between franchisors and franchisees, the ACCC legislation recognises the same “for news media businesses and social media platforms.”

Easton, should the threat be made good, will be returning Facebook to what it once was: the social network of old created by dysfunctional anti-social types desperate to be loved. “Facebook products and services in Australia that allow family and friends to connect will not be impacted by this decision.” The just will be barred from sharing news on it, which, in the scheme of things, might not be such an awful thing.

Time, then, to get inventive. Go back to libraries. (Where and when you can.) Subscribe to a range of other news outlets directly. Encourage them to deliver news instead of being the news. Cut out the niggling middleman and go for the source, be it via app, or email subscription. There is even some research suggesting that this is already taking place. James Meese and Edward Hurcombe have identified “a renewed focus on subscriptions.” Older media companies have also noticed readers visiting their publication home pages, challenging “the idea that [they] depend totally on Facebook.” Facebook was never a deity but whatever it is, the time has come to well and truly demote it.

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Wasting the Elderly: Coronavirus and the Calculus of Death

The director of the World Health Organization, Tedros Adhanom Ghebreyesus, has welled-up because of it. In March, he feared that the world’s elderly citizens risked being marginalised in any pandemic policy. “If anything is going to hurt the world, it is moral decay. And not taking the death of the elderly or the senior citizens as a serious issue is moral decay.”

The elderly have, along with other categories of doomed vulnerability, found themselves centre stage in this epidemiological play of death. They feature in morbidity reports across the globe. They are designated objects of state charity to be protected in some cases, shunned in others. Often, they are abandoned, left to perish alone, with only medical staff for company, if that.

In March, the theme of abandonment featured strongly in accounts from Spain, where choices on the elderly, cruel and desperate, were made. Retirement homes had become bits of paradise for coronavirus transmission. Staff, poorly equipped and terrified, neglected and ignored their obligations. During the course of disinfecting various care homes, the country’s military made alarming discoveries. Residents were abandoned; others were found dead in bed. Spanish Defence Minister Margarita Robles promised that the government would be “strict and inflexible when dealing with the way older people are treated.”

In Australia, the picture was repeated. In Victoria’s second coronavirus surge, dead aged care residents were left in their beds at various aged care facilities across Melbourne for hours on end. An already rotten system was shown to be putrefying.  Professor John Moloney, an emergency field doctor, came up with the understatement of the moment. “What it shows is that there are significant pockets of society that are very vulnerable and it doesn’t take much to tip them over.” It did not take long for squabbles to take place: the Victorian state government, already troubled by a failed quarantine system, sniping with the Commonwealth government, which wields general control over the aged care system.

The federal health minister, Senator Richard Colbeck, has come across as a ditherer of some note. His expertise, and lack of interest in his portfolio, is commensurate with his lack of interest in seniors. When asked the obvious question by a parliamentary inquiry as to how many elderly residents had died from coronavirus, he remained untroubled by knowledge.It took 35 seconds of awkward silence as he rifled through his documents.

Labor Senator Katy Gallagher would not wait: 254, as of the morning of Thursday, August 20. Her colleague, Penny Wong, had come to the conclusion that the minister was resolutely incompetent. “You know,” she explained on the ABC news channel on August 26, “I sit in the Senate every day with this bloke … I would not trust the care of my parents to him.”

Galloping diseases unveil accepted hypocrisies. In reaching judgement on the impact of COVID-19, some world leaders have suggested a calculus at play. In a March 22 interview, Ukraine’s former health minister Illia Yemets obtusely advised the government to focus on those “who are still alive” – those above 65 were nothing better than “corpses”.

Brazil’s Jair Bolsonaro has also gone for the fatalist line. He pleads the case for the hungry poor and unemployed – the economy first, in other words – even as he minimises the effect of a lethal virus that disproportionately harms them. Towards the end of March, he laid bare his morgue-driven logic. “I’m sorry, some people will die, they will die, that’s life.” The same went for his old mother, a lady aged in her nineties. Car factories should not stop, he argued, “because of traffic deaths.”

In the United States, the business interest remains in perennial battle against that of health. The pro-economic faction in the Trump administration remains strong while such establishment voices as the New York Times argue “that a trade-off will emerge – and become more urgent in the coming months, as the economy slides deeper into recession.”

Industries do not stop because morgues fill. Impetuously, Beppe Sala, the mayor of Italy’s economic engine, Milan, shared a video with the slogan “Milano non si ferma” (Milano does not stop) at the end of February. The virus was not to be feared; the engine had to keep purring. “We bring home important results every day because every day we are not afraid. Milan doesn’t stop.” The NSS Magazine was effusive in praise at such audacity and happy that the scaremongers had not won the day. The “mayor’s intervention demonstrated how the institutions must work in synergy with the private sector to avoid uncertainty about the future and to support the realities that have made Milan a European city.”

In a matter of weeks, Italy had become the next global epicentre of infection, passing China’s death toll from the virus. Sala came to rue his enthusiasm. “It was a video that went viral on the internet. Everyone was sharing it, I also shared it, rightly or wrongly, probably wrongly.”

The calculus of death is something embraced by those who claim to be far sighted realists, wedded to a form of grim reaper choice theory. Conservative, and not infrequently reactionary columnist for The Australian Janet Albrechtsen makes the case. And she prosecutes it with considered callousness. Writing in May, Albrechtsen offers a view not atypical to the spread sheet specialists who allocate resources and prioritise life. In that world, the elderly are doomed. “Government and policymakers are confronted by tough questions every day about where to spend money.”

She insists on speaking to doctors, though an unnamed “senior anaesthetist” is quoted as telling her that health decisions “are often shrouded in secrecy, but we don’t have unlimited resources to treat everyone to the maximum.” A patient’s age becomes relevant in deciding, for instance, “who will get more years of life from a set of lungs or a new heart.”

Seeing humans as viable producers – and only that – leads to the endorsement of a particularly nasty streak of eugenics. The Canadian, Oxford-based historian Margaret MacMillan, otherwise credited with being fairly liberal minded, makes the case that those over seventy “were not productive members of society, were not the people we need to get the economic engines going again, and we tend to be more vulnerable, so we should stay out of the way and let others get on with it.” The productive will out; the elderly are merely needless intrusions.

Such needless intrusions can be disposed of. Steel cold in reflection, a piece run in the British paper The Telegraph was not shy about suggesting as much, even as the death toll rose. “Not to put too fine a point on it,” opined columnist Jeremy Warner, “from an entirely disinterested economic perspective, the COVID-19 might prove mildly beneficial in the long term by disproportionately culling elderly dependents.” The virus could be congratulated.

Such mightily inhumane reasoning merely serves to ignore that old question of adequate resources and funding. To that end, the global economy itself needs a grand post-pandemic refitting. UN Secretary General António Guterres suggests “designing fiscal and monetary policies able to support the direct provision of resources to support workers and households, the provision of health and unemployment insurance, scaled up social protection, and support to businesses to prevent bankruptcies and massive job losses.”

When health becomes a matter of profit and Social Darwinian priorities; when the granting of medical services becomes a crude exercise of penny pinching because the tax dollars are not there, choices on survival assume an almost criminal form. Harm and the risk of making them can be minimised. Sentimentality need not come into it. But COVID-19 has shown that human rights, and notably those of the elderly, are brittle before the march of pandemics, made worse by the desk bound policy maker and politicians captivated by bottom lines and budgets.

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The Sentencing of Brenton Tarrant: Jailing the Man, not the Great Replacement

Brenton Tarrant was sentenced last week. The Australian national who butchered, with relish, 51 individuals in Christchurch at Al Noor Mosque and the Linwood Islamic Centre, found himself facing something unique in New Zealand: jail for life without parole. He pleaded guilty to 51 charges of murder, 40 counts of attempted murder and one of terrorism. He also faced a tsunami of victim impact statements – over 200 in all.

The High Court Justice Cameron Mander was not too willing to delve into the substance of Tarrant’s ideas that saw noxious fruition on March 15, 2019. They constituted merely a “warped and malignant ideology” with moorings “in religious and ethnic antipathy and intolerance.” What concerned him most was the method. “You slaughtered unarmed and defenceless people.” Tarrant “maimed and wounded and crippled many others, your victims included the young, and the old, men, women and children.”

It is true enough. Tarrant was unsparing, pitiless and relentless. He had hoped to kill more worshippers, intending to strike a note of fear among “non-Europeans.” He had also prepared for the slaughter well in advance, having undertaken a reconnaissance mission to Al Noor Mosque two months before, sending a drone to identify points of entry and exit. Such readiness went back as far as 2017, when the Australian had settled in New Zealand with nefarious purpose. “You came to this country to murder.”

The sentencing of Tarrant served a sequestering purpose. According to New Zealand Prime Minister Jacinda Ardern, “he deserves to be a lifetime of complete and utter silence.” Australian Prime Minister Scott Morrison echoed the sentiment. “It is right that we will never see or hear from him ever again.” New Zealand authorities are not merely content on keeping him in permanent incarceration on home soil. They insist that he be returned to Australia.

No one got to receive a full airing of the mindset of Tarrant the ideologue, his own views about the inundation, expunging and racial deletion of white Christians at the hands of the followers of Allah. There has, in fact, been a concerted effort across social media platforms and publications to expurgate and limit discussion on Tarrant’s cock-eyed view of the world, scribbled out in the rambling manifesto The Great Replacement. The intention is to avoid the dissemination of hate and incitement; the consequence is its concealment, bowdlerising the views of a mass murderer and limiting its dangerously broader appeal.

The plagiarised title of Tarrant’s tract is itself loosely based on Renaud Camus’s self-published book of the same title from 2012, though Camus himself had little time for the methods of Tarrant, the efforts of “someone who had failed to understand my work.” But had he? Both Camus and Tarrant are, at first blush, striking juxtapositions: the former, an ardent, confessional homosexual aesthete and laureate of the Académie Française; the latter, a personal trainer from Grafton, New South Wales who had travelled to Europe on his father’s inheritance money to bear personal witness to immigrant “invasion.”

While not having the cast iron stomach for Tarrant’s bloodiness, Camus was delighted by the notoriety his ideas were getting. As to whether he resented “the fact that people take notice of ethnic substitution that is in progress in my country?” he posed rhetorically to James McAuley writing for The Washington Post, he was unequivocal.  “No. To the contrary.”

Tarrant’s language, as expressed in the manifesto, clings to the raft of European identity. “The origins of my language is European, my culture is European, my political beliefs are European, my philosophical beliefs are European, my identity is European and, most importantly, my blood is European.” He sees himself, incoherently and ramblingly, as “an Ethno-nationalist Eco-fascist. Ethnic autonomy for all peoples with a focus on preservation of nature, and the natural order.” He sees enemies everywhere: German chancellor Angela Merkel as “mother of all things anti-white and anti-Germanic”; Turkish President Recep Tayyip Erdoğan as “the leader of one of the oldest enemies of our people, and the leader of the largest Islamic group within Europe.”

This streakily misguided, not to mention linguistically and culturally deluded reading, is something that finds voice across the White Supremacist family. It made an appearance in Charlottesville, Virginia in August 2017 with chants of “Jews will not replace us.” Ditto in October, 2018 at the Tree of Life synagogue in Pittsburgh, were 11 were slain by Robert Bowers claiming to be targeting those who “bring invaders in that kill our people.” But Tarrant’s preferred target of hatred was not some fabled international Jewish conspiracy but Islam.

These are not the isolated mutterings of a noisy fringe. They are also entertained by certain political leaders not averse to teasing out the race, culture and even religious card, if it advances a cause. In Europe, Geert Wilders of the Netherlands’ far-right Freedom Party rallies with the cry that, “Our population is being replaced. No more.”

The notion of a great replacement has found freight in the views of Hungary’s Viktor Orbán. Orbán’s fear is demographic inundation by swarthy, non-Christian outsiders. Christianity, he explained last September at the Third Demographic Summit in Budapest, needed to “regain its strength in Europe.” Population decline was “a general European phenomenon” that arose from the First and Second World Wars, both of which he regards as “brutal civil wars.” To arrest such population decline by accepting non-Europeans would be “effectively … consenting to population replacement: to a process in which the European population is replaced.”

Such views are heartily shared by former Australian Prime Minister Tony Abbott, who wrote adoringly of Orbán last year as “the first European leader to cry ‘stop’ to the peaceful invasion of 2015 and is now trying to boost Hungary’s flagging birth rate.” At the centre, then, of this cultural and racial cosmos lie a set of ideas that share a threat with Tarrant’s own form of murderous retribution. They are all concerned with existential replacement.

The trial, however, left those watching it with a sense of simplicity: wickedness confined to the dock; victims seeking spiritual and emotional compensation through various forms of anger, sadness, forgiveness or lack of. It was procedural, formulaic and decidedly clear: Tarrant had butchered and must pay the bill. But there was little stomach for confronting his central contention, less than his method, which has found an audience not merely in the White Supremacist fold, but in public offices from Washington to Budapest.

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Australia-China Relations: Down Under Squabbling

These are proving testy times for Australian-Chinese relations. Last week, Chinese authorities announced that an investigation would be conducted into claims that Australia has been using unfair dumping practices for its wine on the Chinese market. This was not what Australian winemakers wanted to hear, given that exports of Australian wine to China grew from AU$268 million in 2015/16 to AU$1.75 billion in 2018/19. While the investigation will take eighteen months, it risks going the way of a similar anti-dumping inquiry into Australian barley that was concluded in May.

On Wednesday, Wang Xining, the deputy head of mission of China’s embassy to Australia, spoke about various creases that had arisen in the relationship. Before the National Press Club in Canberra, he wished to “remove the shadows” that had been cast. “We are not trying to turn Australia into the People’s Republic of China … we’re not asking Hungry Jack’s to sell Chinese dumplings.” He suggested there was a confusion between foreign interference and foreign influence. Australia could hardly enjoy wealth, cultural diversity and intellectual richness “without accepting some foreign influence.”

Australia had also done its bit to hurt “the feelings of the Chinese people” by promoting an international investigation into the origins of the coronavirus. “All of a sudden, they heard this shocking news of a proposal coming from Australia, which is supposed to be a good friend of China.”

Response to his speech was miffed. Liberal MP Dave Sharma struggled to identify the “authenticity” of the message. He questioned Chinese willingness to “having open channels of dialogue,” given Beijing’s insistence on limiting contact with counterparts in Canberra.

Then came the freely expressed opinions of former Australian Defence Minister Kevin Andrews, whose private Zoom call with party members spoke of his “problems … with the most complete totalitarian regime that we’ve seen probably on the face of the earth from the regime of Xi Jinping.” Previous totalitarian regimes might have taken issue with that characterisation, not least of all because they would have deserved top billing for that honour.

But Andrews, along with a good number of Australian politicians, is rattled by the Oriental Menace. His grievances span “aggression in the South China Sea,” repression and incarceration of the Uighurs in “re-education camps,” and “a complete trampling of the agreement with China and the UK (to allow greater freedom).”

When such criticisms make their way to stage and podium, the crude, and not altogether invalid criticism from Deng Xiaoping comes to mind. National sovereignty, he insisted, came first but “talk about human rights, freedom and democracy is designed … to safeguard the interests of … strong and rich countries.” Countries keen to huff about human rights violations were often the very same ones infringing “upon the sovereignty of poor, weak countries of the Third World.”

Within Australia itself, lashes of concern are being directed at Victoria’s Belt and Road agreement with Beijing. The Morrison government has promised to introduce legislation that will grant the foreign affairs minister powers to review and cancel such initiatives. Foreign minister Marise Payne noted the current absence of legislation compelling states and territories to consult the Commonwealth “on arrangements with foreign governments.”

Keen watchers of this episode will note the stark inconsistency of positions taken by the Morrison government and his predecessors on such Beijing-related matters. On the one hand, the BRI nestling in an Australian state constitutes a threat, a tingling sensation of discomfort that has ministers and backbenchers up in arms. On the other, Australia has expressed approval in forming a partnership with China on that very same initiative, covering infrastructure projects in other countries. When the decision was made by the Northern Territory government to grant a 99-year lease of the Port of Darwin to China’s Landbridge Group, the Commonwealth kept its distance.

A club of anti-China enthusiasts is attempting to reverse, or annul, such agreements. Liberal Senator Concetta Fierravanti-Wells spoke in May of possibilities that evoking a national security emergency might give. Australia had to reverse its attitude to Beijing, which had “erred on the side of appeasement instead of standing up to, often bellicose and illegal actions.”

On August 26, China put more runs on the board of grievance with its customs department suspending beef exports from John Dee claiming it had found traces of the banned veterinary chemical chloramphenicol in sirloin pieces. According to a statement from China Customs, “In order to safeguard the food security of imported meat, China has informed the Australia side to conduct a comprehensive investigation on the company and report the result to China side.” This added to the suspension of four Australian abattoirs in May over those ever regularly cited reasons: non-compliance with health and labelling requirements.

Not to be outdone, the Australian government blocked the sale of Australia’s oldest family-owned meat processor and Japanese-owned Lion Dairy and Drinks, to China Mengniu Dairy Company. Both parties had already sensed that the Foreign Investment Review Board might be reluctant to grant final approval, and agreed to cease the process. It was certainly a departure from the initial confidence felt in February, when the Australian Consumer and Competition Commission gave its blessing, claiming the sale would not undermine local milk supplies.

But the times are awash with squabble and suspicion. Half-baked reasons are circulating about the next trade snipe, the next meddle and investigation. The Australian treasurer, Josh Frydenberg, had told Mengniu Dairy that “the proposed acquisition would be contrary to the national interest,” a view he claimed was “preliminary.” Nothing of detail was provided and certainly seemed at odds with the Morrison government’s approval of the AU$1.5 billion sale to Mengniu of the baby formula business Bellamy’s last year. National interest can be such a slippery concept.

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Waiting for the Old Bailey: Julian Assange and Britain’s Judicial Establishment

On September 7, Julian Assange will be facing another round of gruelling extradition proceedings, in the Old Bailey, part of a process that has become a form of gradual state-sanctioned torture. The US Department of Justice hungers for their man. The UK prison authorities are doing little to protect his health. The end result, should it result in his death, will be justifiably described as state-sanctioned murder. This picture was not improved upon by a prison visit from his partner, Stella Morris, accompanied by their two children. Almost six months had passed since the last meeting.

Physical distancing was practised during the twenty minute meeting in Belmarsh Prison. Morris and Assange wore face masks and visors, a state of affairs curious given the conspicuous lack of protective wear that has been given to Assange during the pandemic. A prohibition on touching was observed. “We had to keep social distancing and Julian was told he would have to self-isolate for two weeks if he touched the children.” Were officials being careful and considerate? Not according to Assange, who claimed it was the first time he had received a mask “because things are very different behind the doors.” Morris noted a prevailing thinness, a yellow armband to indicate prisoner status, and the fact that he was “in a lot of pain.”

What awaits Assange next month promises to be resoundingly ugly. He will have to ready himself for more pain, applied by Judge Vanessa Baraitser. Throughout her steering of proceedings, Baraitser has remained chillingly indifferent to Assange’s needs, a model of considered cruelty. Keen followers of justicia will be crestfallen: limiting access to legal counsel by keeping him caged behind a glass screen; ignoring his health considerations in refusing emergency bail during the COVID-19 pandemic.

Her behaviour has been in keeping with that of Chief Magistrate Lady Emma Arbuthnot, who has done her precious bit to soil the citadel of British justice in previous rulings on Assange. With a family well and truly embedded in the British intelligence and military establishment, it was alarming to even see her name allocated to the Assange case. In February 2018, she dismissed an application by the publisher to cancel his arrest warrant for refusing to surrender for his extradition to Sweden. It did not matter that Swedish proceedings against the Australian had been discontinued, or that prosecution proceedings for breaching bail had not been commenced.

To this ruling came her cool judgment on February 13, 2018 on claims by Assange’s legal team that proceedings for failing to surrender to British authorities were disproportionate and not in the public interest. The judgment is horrendous for a few reasons, and in keeping with the intentionally harsh, and unimaginative way British courts have dealt with his case. Arbuthnot, for one, was unmoved by the findings of the UN Human Rights Council Working Group on Arbitrary Detention. His “house arrest” and “harsh restrictions” had been proposed by Assange himself. His time in the Ecuadorean Embassy in London could have been ended by leaving “the embassy whenever he wishes. He could use the computer facilities, eat what he wanted and see guests.

This caricature of freedom and choice was topped by her assessment that read grotesquely then, and even more appallingly now. While accepting that Assange “had expressed fears of being returned to the United States from a very early stage in the Swedish extradition proceedings,” she found little merit to them. Sweden would not have rendered him to the United States. To have done so would have precipitated a diplomatic crisis between the UK, US and Sweden. (And how, pray, would she know?) As for whether Assange would face an extradition request to Britain, he could always “be able to argue extraneous considerations, fair trial and conditions of detention in the United States prison system.”

Which brings us to Baraitser, who has served as an appropriately bad replacement after Arbuthnot stood aside from the case, despite refusing to admit to any perception of bias. Very little is known about Baraitser in the public domain, though the investigative outfit Declassified UK has been busy with some dedicated digging. On February 28, 2020 it filed a Freedom of Information request with the Ministry of Justice (MOJ) seeking a list of all the cases which Baraitser had ruled upon since her appointment in 2011. Of particular interest was her record on extradition rulings. Two months elapsed before a reply from the information officer at the HM Courts and Tribunal Service confirming that it held “some information that you have requested.” But the request was flatly turned down for not being consistent with the Constitutional Reform Act 2005. “The judiciary is not a public body for the purposes of FOIA… and requests asking to disclose all the cases a named judge ruled on are therefore outside the scope of the FOIA.” This limitation maintained “the independence of the judiciary which also means that the government does not provide guidance or policy on how judges should operate in court.”

The information officer’s reasoning was specious, not least because the FOIA request was premised on identifying what should, in any case, be on the public record: the cases upon which a judge has seen fit to rule upon, with outcomes. This also ignored the fact that some cases involving Baraitser are actually accessible through the legal database Westlaw.

As a barrister wishing to remain anonymous explained to Declassified, “A court is a public authority for the purposes of the Human Rights Act and a judge is an officer of the court.” A court also acted in public. “There is no default anonymity of the names of cases, unless children are involved or other certain limited circumstances, nor the judges who rule on them.”

Undeterred, Declassified persevered and found 24 extradition cases over which Baraitser presided between November 2015 and May 2019 mining Factiva and Westlaw. The results show an overly keen enthusiasm for extradition. “Of these 24 cases, Baraitser ordered the extradition of 23 of the defendants, a 96% extradition record from publicly available evidence.” One of Baraitser’s rulings was overturned on appeal, with the appellate court attaching “considerable weight to the likely impact of extradition upon the health and wellbeing of the defendant’s wife,” who would be “left with very little support.” A scintilla of hope, perhaps, is in the offing.

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Burying the Hatchet Act: Donald Trump’s Unconventional Convention

Conventions suggest norms, a set of accepted rules. Behaviour is agreed upon in advance. In the case of US political conventions, there is much cant and gaudy ceremony. Certain transgressions are simply not contemplated. But the Trump administration is freighted with transgression, deviation, and, in some cases, a whole set of new norms born in defiant violation.

With that pattern in mind, why stop at the Republican National Convention? Ethics experts are aghast. Commentators are up in arms at the behaviour of Trump officials who have gone into full electioneering mode. The distinction between office and party campaigner has been not so much blurred as obliterated. President Donald J. Trump, in keeping with his own extravagant reading of his office, was not campaigning as a candidate but as the President with the office at his disposal. The White House, in short, had been mobilised in an official capacity to assist in his re-election. Trump appointees had been enlisted in the effort. “You’d be forgiven,” mused Rebecca Ballhaus of the Wall Street Journal, “for thinking the Republican National Convention was being hosted at the White House.”

This sparked interest in a piece of legislation that would otherwise remain part of the obscure, corroding statuary of the Republic’s laws. “The Hatch Act was the wall standing between the government’s might and candidates,” tweeted former head of the US Office of Government Ethics, Walter Shaub. “Tonight a candidate tore down that wall and wielded power for his own campaign.”

The sum effect of the Hatch Act, which conditionally exempts the President and the Vice President, is to prohibit federal employees from participating in partisan political activity in their “official authority or influence for the purpose of interfering with or affecting the result of an election.” Activities covered by this injunction include the official employment of the employee’s “official title while participating in political activity” while political activity is defined as “an activity directed towards the success or failure of a political party, candidate for partisan political office, or partisan political group.”

At the Republican National Convention, such injunctions had become baubles to be ignored. There was his pardon of Jon Ponder, convicted for bank robbery. There was Trump’s departure from convention in giving his acceptance speech at the South Lawn of the White House, a point that commentators tried to link to a legal breach. “It is legal,” Trump had foreshadowed with scorn. “There is no Hatch Act because it doesn’t pertain to the president.”

What mattered more were those employees the Hatch Act is supposedly designed to bar from such displays of partisanship. There was US Secretary of State Mike Pompeo spouting hope and praise from Jerusalem and campaigning on what was a taxpayer-funded foreign trip. A nice touch to the whole proceedings was that in doing so, Pompeo was effectively negating the very memo he had signed off on: that Senate-confirmed officials are barred from appearing at political party conventions or convention-related events.

In doing so, he certainly delivered a roguish cat amongst the pigeons. Former foreign policy adviser in the Obama administration Lauren Baer imaginatively concluded that this would somehow impair “the ability to conduct diplomacy free from politics.” (Where has Baer been?) Ilan Goldenberg of the Center for a New American Security was offended to “find the Secretary of State illegally deploying government resources, to use Jerusalem as a political prop to appeal to evangelicals.” A violation of protocol and law, but an act of mercenary political marketing.

Acting Homeland Security Secretary Chad Wolf, in presiding over the naturalization ceremony, was even more flagrantly in breach of the Hatch Act. The justification given to Ballhaus was that the White House “publicized the content of the event on a public website this afternoon and the campaign decided to use the publically available content for campaign purposes.”

Wolf’s presence was enough to see US House Representatives Raja Krishnamoorthi and Don Beyer dash off a note of concern to Henry J. Kerner of the US Office of Special Counsel. They requested an investigation, to be conducted by the Office of Special Counsel, on whether Wolf “and other senior members of the Trump Administration violated the Hatch Act on August 25, 2020 through using their positions, official resources, and the White House itself, to participate in the Republican National Convention.”

Kerner claims to be a fan of the Hatch Act, taking issue with arguments that it is obsolete, “the federal election law equivalent of the stagecoach.” Its principles, he argued in February this year in the Federal News Network, “are as important today as when the law first passed.” He also warned Trump last year about violations of the Act by the president’s counselor Kellyanne Conway. “Ms Conway has repeatedly violated the Hatch Act during her official media appearances by making statements directed at the success of your re-election campaign.” In recommending terminating her retainer, Kerner suggested that not punishing such breaches would “send a message to all federal employees that they need not abide by the Hatch Act’s restrictions.”

And so it came to pass. Conway poured scorn on the Act. “Let me know when the jail sentence starts.” The Trump administration, for its part, proceeded to quietly defang the Merits Systems Protection Board, the body responsible for policing the Hatchet Act and an agency of appeal for federal employees disciplined, demoted or fired.

The Office of Special Counsel was not ignorant about the convention logistics but decided to distribute a mild note of “general advice” that did “not purport to address every situation that could result from holding a political event at the White House.” The opinion also chose to ignore the provisions of the Hatch Act covering the president in barring him from compelling employees “to engage in … any political activity including … working … on behalf of any candidate.”

This was too much for Shaub. “It happened on Henry Kerner’s watch,” he fumed. “With ample advance warning, he chose not to use the bully pulpit of his office … to object to this travesty or arm the people with detailed information about what was prohibited.” But even he was gloomily impressed by what he considered Kerner’s devilry in attempting to deal with this mess: “he’s a fast-working fixer.”

The Hatch Act was being made to wither with each speech, yet another relic, yet another instrument to succumb to Trumpist vanity. White House Chief of Staff Mark Meadows, in airing his thoughts to Politico on the subject, was brutally frank. The Hatch Act was there for the burying. “Nobody outside of the Beltway really cares. They expect that Donald Trump is going to promote Republican values, and they would expect that Barack Obama, when he was in office, that he would do the same for Democrats.” There was much “hoopla” made about the convention only because it had “been so unbelievably successful.” To those who breach regulations, ethics and even the law, go the spoils.

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Free Speech Be Damned: Joshua Krook and the Australian Public Service

There was very little controversial about it. A featured blog post in the Oxford Political Review, authored in April by Joshua Krook, suggested that COVID-19 had brought a host of benefits for big tech companies. Isolation ushered people towards online platforms. Engagement on such platforms had increased dramatically.

Names were not mentioned. Krook’s then-employer, the Australian Public Service, made no appearance in the text. Tech entities were not outed, though Krook noted, in general, how “big tech companies” have been “pursuing the attention economy,” seeking to get “all our attention at all times.” With COVID-19, this had been achieved. “People are trapped indoors, at home, on their devices at all times, with nowhere to go.” Krook’s tone did come across as a touch judgmental, suggesting that replacing “human connection with technology has never felt so nakedly negative.” He likened big tech entities to spouses who know “everything about you.” By giving them information about yourself, a loss of free will is perpetrated precisely “because the person, or company, knows so much about you.”

It took three months for Krook to get the call. The managers of the APS took issue with the post. Its pessimism might damage the government’s relationship with the technology industry. In Krook’s words to the Guardian, “the problem was that in talking about the big tech companies, we risked damaging the relationship the government has with big tech companies and that when we go and do public-private partnerships, they could Google my name, find my article and then refuse to work with us.” Had the article been ingratiating – “positive about the big tech companies” – it would have been entirely permissible. His options were starkly simple: remove the post or face termination of employment. Any future pieces would have to go through the censoring scissors of the service.

What followed was the usual pattern. The cold sweat of initial alarm; a quick request to the Oxford Political Review that the blog post be removed. Deletion. Then, a reconsideration of matters, the growth of a backbone to resist: quitting the job in the public sector and talking about civil service censorship.

As Krook explained in the Oxford Political Review, “I resigned from my job in the government because I fundamentally disagree with the decision. The Australian government should not be involved in censoring personal blog posts. Public servants should be able to criticize private companies, including big tech companies. There is no conflict of interest. Freedom of speech is fundamental to a thriving, secular democracy.”

It pays to know what creatures you are working for, and what strange armour they insist on wearing when they deal with expression. Know their values and code of conduct, because they are bound to be conversely related to what is actually intended. Ideas will only be permitted in such an ecosystem if they are expressed with respect, which usually means causing no offence to the thick and unimaginative. What is challenging is bound to be offensive; what is audaciously defying is bound to rub the dullards the wrong way.

The APS, for instance, has a code of conduct which deals with “employees as citizens.” This has a sinister edge to it. The APS acknowledges in Section 6 of the Code that employees are citizens and members of the community but “the right to serve the community as APS employees comes with certain responsibilities.” Central to the point is a notion that has been stretched and mangled in punishing supposed transgressions by APS employees. Responsibilities, for instance, “include maintaining confidence of the community in the capacity of the APS, and each member to it, to undertake their duties professionally and impartially.” This comes terribly close to having no opinions, or at least the sort you can legitimately express.

The section further gives clues as to what an APS employee should, or should not do. Be careful making comments in an unofficial capacity (no mention of the healthy thoughts of such a person as an engaged private citizen). Be wary of participating in political activities, participating in acts that might generate a conflict of interest, be cautious when working overseas and when being “identifiable as an APS employee.”

Naturally, such elastic codes are drafted in ways that suggest openness and fairness, while coldly repudiating them. There is, for instance, a tentative nod to the engagement of APS employees “in robust discussion … as an important part of open government.” But the lid is tightly shut on the issue of public comments, which must conform to the “APS Values, Employment Principles and the Code.” And public comments are broad indeed, covering public speech, online media including blogs and social media networking sites.

Michaela Banerji, formerly an employee of the Australian Department of Immigration and Citizenship, found at much personal cost that tweeting critically about government policy on refugees, even anonymously, was sufficient to get her sacked. Her heroic effort to bring her messages and opinions within the realms of Australia’s implied right to freedom of communication on political subjects was snootily dismissed by the country’s highest court in 2019. The implied right was not a personal one, intoned the High Court judges, but “a restriction on legislative power which arises as a necessary implication” on construing various sections of the Australian Constitution “and as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution.”

Justice James Edelman went so far as to claim that the APS Code did not turn “public servants into lonely ghosts” but conceded that it would cast “a powerful chill over political communication.” All that interested the judges, however, was that Banerji had been given a proportionate penalty balanced against preserving a neutral public service. Had Krook dared test the waters of litigation, it would have been grimly interesting how the High Court might have distinguished his case to that of Banerji’s, given that he expressed no criticism in the post of the government or government policy.

The Krook affair also reveals another disturbing trend. With all that froth and babble about regulators keen to rein in the power of Silicon Valley, we have an object lesson about how keen the Australian government is to stay in the warming bed of big tech. Google, Facebook and other representatives will be delighted by this stinging hypocrisy. Public servants have been crudely warned: do not write pieces, however general, about the consequences of the COVID-19 tech world and its delighted Silicon Valley stalwarts.

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Hymn for a Broken Empire: Republican National Security Officials for Biden

If fodder is needed for the argument that a Deep State is running wild and determined to depose President Donald J. Trump, this will surely help. In a statement by self-titled “former Republican National Security Officials”, a hand-on-heart allegiance is made to Democratic presidential nominee Joe Biden. The authors are intent on moving the incumbent out of office, “profoundly concerned about our nation’s security and standing in the world under the leadership of Donald Trump. The President has demonstrated that he is dangerously unfit to serve another term.”

These former security officials, who include former Deputy Secretary of State Richard Armitage and former Director of the Central Intelligence Agency and National Security Agency Gen. Michael Hayden, see Joe Biden as the better horse. He has “the character, experience and temperament to lead this nation.” They might have their disagreements with him, but there would be “the time to debate those policy differences”. In the immediate future, Trump had to be ushered out of office to stop his “assault on our nation’s values and institutions.”

The message is regaled in the language of defending democracy, the very sort of fragile creature such individuals have not been averse to mutilating in the past. But it is also couched in terms of cod psychology. The term “unfit” is used four times. This lack of fitness was demonstrated by bad character, corrupt behaviour, the inability to lead “during a national crisis.”

What is particularly galling for the authors is that Trump dared interfere with the National Security Family, offices of the imperium that should run without disruption and melodrama. This mismanagement, as they term it, involved the dismissal or replacement “often by tweet” of “the secretaries of State, Defense, and Homeland Security, the Attorney General, the Directors of National Intelligence and the FBI, three National Security Advisors, and other senior officials in critical national security positions”.

The signers also take issue with the president’s spread of “misinformation”, the undermining of public health expertise, attacking officials at state and local level “and wallowing in self-pity.” He had demonstrated greater interest in re-election “than the health of the American people.”

Misinformation is a good point. Trump has been exceedingly inventive to the point of fiction in coping with the COVID-19 pandemic. He takes of the root of conspiracy. But it is also worth noting that many of these former security officials who take issue with him were not averse to getting on the well-laden wagon of misinformation when it came to launching a war against Iraq in 2003. The administration of George W. Bush was stacked high with true believers allergic to the findings of UN weapons inspectors.

Then-Secretary of State Colin Powell, who put in an appearance at the Democratic National Convention just passed, gave a show of supreme mendacity on February 5, 2003, before the United Nations. “What we’re giving you are facts and conclusions based on solid intelligence.” What was solid was the premature adjudication of the matter: Saddam Hussein had to go, and fictional weapons of mass destruction would do nicely as a pretext.

The result was the commission of what is loftily described as the “supreme international crime”: the crime against peace or what is sometimes, if awkwardly termed, a “war of aggression”. In 2005, criminologists Ronald Kramer, Raymond Michalowski and Dawn Rothe gazed forlornly at the US-led invasion of Iraq and concluded that it, and the subsequent occupation, violated international law. State crimes had been committed and “state officials responsible for the violations of law pursuant to the invasion and occupation of Iraq are guilty of war crimes.”

The signatories of this pro-Biden note also have their noses out of joint at Trump’s compromising of the Department of Justice, his libelling of federal judges, and those who “sought to uphold the law.” He insulated himself from accountability, fired officials who commenced investigations or testified against him, threatened whistleblowers, promised pardons for silence “and blocked prison time for a political crony convicted of lying on his behalf.”

Smelly stuff indeed, till you consider what took place in the Republic after September 11, 2001. During those dark years under GWB, the rule of law was given a right royal thrashing, and was barely able to walk after that. Warrantless surveillance of US citizens was conducted with the specific purpose of avoiding the law altogether. Torture was modish, given a shining light as a preferred method of military interrogation; inventive apologias and seedy justifications could be found through the DOJ for its use.  The “Bush Six” – Alberto Gonzales, David Addington, William Haynes, John Yoo, Jay Bybee and Douglas Feith – rode high on stallions of bare legality. The Central Intelligence Agency got bold and ugly with its Rendition Program. Guantanamo Bay became code for human rights violations and legal purgatory.

In 2005, Human Rights Watch suggested that the then-defence Secretary Donald Rumsfeld, CIA Director George Tenet and Lt. Gen. Ricardo Sanchez, formerly the chief US commander in Iraq and Gen. Geoffrey Miller, former commander of the US military detention facility at Guantanamo Bay, Cuba, be investigated for allegations of torture.  In 2011, HRW released a further report arguing for “a broad criminal investigation into alleged crimes committed in connection with the torture and ill-treatment of detainees, the CIA detention program, and the rendition of detainees to torture.” To date, these dark retainers of executive power remain free to go about their business and whitewash a sullied era. The Obama administration ensured that no prosecutions would take place.

The vocal, boisterous defenders of a cause are bound to be those who have, along the way, fiddled and forfeited it. Be wary, claimed E. M. Forster in “What I Believe”, of the cohorts overly keen on causes. “I hate the idea of causes, and if I had to choose between betraying my country and betraying my friend I hope I would have the guts to betray my country.” Trump has done his immodest bit to ransack an already soiled office. The precedent of a burgeoning imperial presidency, indifferent to caution and legality, eager to bloody the noses of adversaries, spy on citizens and evade the rule of law, was already there to emulate.

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