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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.

The Last Flurry: The US Congress and Australian Parliamentarians seek Assange’s Release

On February 20, Julian Assange, the daredevil publisher of WikiLeaks, will be going into battle, yet again, with the British justice system – or what counts for it. The UK High Court will hear arguments from his team that his extradition to the United States from Britain to face 18 charges under the Espionage Act of 1917 would violate various precepts of justice. The proceedings hope to reverse the curt, impoverished decision by the remarkably misnamed Justice Jonathan Swift of the same court on June 6, 2023.

At this point, the number of claims the defence team can make are potentially many. Economy, however, has been called for: the two judges hearing the case have asked for a substantially shortened argument, showing, yet again, that the quality of British mercy tends to be sourly short. The grounds Assange can resort to are troublingly vast: CIA-sponsored surveillance, his contemplated assassination, his contemplated abduction, violation of attorney-client privilege, his poor health, the violation of free-speech, a naked, politicised attempt by an imperium to capture one of its greatest and most trenchant critics, and bad faith by the US government.

Campaigners for the cause have been frenzied. But as the solution to Assange’s plight is likely to be political, the burden falls on politicians to stomp and drum from within their various chambers to convince their executive counterparts. In the US Congress, House Resolution 934, introduced on December 13 by Rep. Paul A. Gosar, an Arizona Republican, expresses “the sense of the House of Representatives that regular journalistic activities are protected under the First Amendment, and that the United States ought to drop all charges against and attempts to extradite Julian Assange.”

The resolution sees a dramatic shift from the punishing, haute view taken by such figures as the late Democratic Senator Dianne Feinstein, who was one of the first political figures to suggest that Assange be crucified on the unsteady timber of the Espionage Act for disclosing US cables and classified information in 2010. The resolution acknowledges, for instance, that the disclosures by WikiLeaks “promoted public transparency through the exposure of the hiring of child prostitutes by Defense Department contractors, friendly fire incidents, human rights abuses, civilian killings, and United States use of psychological warfare.” The list could be sordidly longer but let’s not quibble.

Impressively, drafters of the resolution finally acknowledge that charging Assange under the Computer Fraud and Abuse Act (CFAA) for alleged conspiracy to help US Army intelligence analyst Chelsea (then Bradley) Manning access Defense Department computers was a fabled nonsense. For one, it was “impossible” – Manning “already had access to the mentioned computer.” Furthermore, “there was no proof Mr Assange had any contact with said intelligence analyst.”

Ire is also directed at the espionage counts, with the resolution noting that “no other publisher has ever been prosecuted under the Espionage Act prior to these 17 charges.” A successful prosecution of the publisher “would set a precedent allowing the United States to prosecute and imprison journalists for First Amendment protected activities, including the obtainment and publication of information, something that occurs on a regular basis.”

Acknowledgment is duly made of the importance of press freedoms to promote transparency and protect the Republic, the support for Assange, “sincere and steadfast”, no less, shown by “numerous human rights, press freedom, and privacy rights advocates and organizations”, and the desire by “at least 70 Senators and Members of Parliament from Australia, a critical United States ally and Mr Assange’s native country” for his return.

Members of Australia’s parliament, adding to the efforts last September to convince members of Congress that the prosecution be dropped, have also written to the UK Home Secretary, James Cleverly, requesting that he “undertake an urgent, thorough and independent assessment of the risks to Mr Assange’s health and welfare in the event that he is extradited to the United States.”

The members of the Bring Julian Assange Home Parliamentary Group draw Cleverly’s attention to the recent UK Supreme Court case of AAA v Secretary of State for the Home Department which found “that courts in the United Kingdom cannot just rely on third party assurances by foreign governments but rather are required to make independent assessments of the risk of persecution to individuals before any order is made removing them from the UK.”

It follows that the approach taken by Lord Justices Burnett and Holroyde in USA v Assange [2021] EWHC 3133 was, to put it politely, a touch too confident in accepting assurances given by the US government regarding Assange’s treatment, were he to be extradited. “These assurances were not tested, nor was there any evidence of independent assessment as to the basis on which they could be given and relied upon.”

The conveners of the group point to Assange’s detention in Belmarsh prison since April 2019, his “significant health issues, exacerbated to a dangerous degree by his prolonged incarceration, that are of very real concern to us as his elected representatives.” They also point out the rather unusual consensus between the current Australian Prime Minister, Anthony Albanese, and his opposition number, Peter Dutton, that the “case has gone on for too long.” Continued legal proceedings, both in the UK, and then in the US were extradition to take place “would add yet more years to Mr Assange’s detention and further imperil his health.”

In terms of posterity’s calling, there are surely fewer better things at this point for a US president nearing mental oblivion to do, or a Tory government peering at electoral termination to facilitate, than the release of Assange. At the very least, it would show a grudging acknowledgment that the fourth estate, watchful of government’s egregious abuses, is no corpse, but a vital, thriving necessity.

 

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Cancelling the Journalist: The ABC’s Coverage of the Israel-Gaza War

What a cowardly act it was. A national broadcaster, dedicated to what should be fearless reporting, cowed by the intemperate bellyaching of a lobby concerned about coverage of the Israel-Gaza war. The investigation by The Age newspaper was revealing in showing that the dismissal of broadcaster Antoinette Lattouf last December 20 was the nasty fruit of a campaign waged against the corporation’s management. This included its chair, Ita Buttrose, and managing director David Anderson.

The official reason for that dismissal was disturbingly ordinary. Lattouf had not, for instance, decided to become a flag-swathed bomb thrower for the Palestinian cause. She had engaged in no hostage taking campaign, nor intimidated any Israeli figure. The sacking had purportedly been made over sharing a post by Human Rights Watch about Israel that mentioned “using starvation of civilians as a weapon of war in Gaza”, calling it “a war crime”. It also noted the express intention by Israeli officials to pursue this strategy. Actions are also documented: the deliberate blocking of the delivery of food, water and fuel “while wilfully obstructing the entry of aid.” The sharing by Lattouf took place following a direction not to post on “matters of controversy”.

Human Rights Watch might be accused of many things: the dolled up corporate face of human rights activism; the activist transformed into fundraising agent and boardroom gaming strategist. But to share material from the organisation on alleged abuses is hardly a daredevil act of dangerous hair-raising radicalism.

Prior to the revelations in The Age, much had been made of Lattouf’s fill-in role as a radio presenter, a stint that was to last for five shows. The Australian, true to form, had its own issue with Lattouf’s statements made on various online platforms. In December, the paper found it strange that she was appointed “despite her very public anti-Israel stance” (paywalled). She was also accused of denying the lurid interpretations put upon footage from protests outside Sydney Opera House, some of which called for gassing Jews. And she dared accused the Israeli forces of committing rape.

It was also considered odd that she discuss such matters as food and water shortages in Gaza and “an advertising campaign showing corpses reminiscent of being wrapped in Muslim burial cloths.” That “left ‘a lot of people really upset’.” If war is hell, then Lattouf was evidently not allowed to go into quite so much detail about it – at least when concerning the fate of Palestinians at the hands of the Israeli war machine.

What also transpires is that the ABC managers were not merely targeting Lattouf on their own, sadistic initiative. Pressure of some measure had been exercised from outside the organisation. According to The Age, WhatsApp messages had been sent to the ABC as part of a coordinated campaign by a group called Lawyers for Israel.

The day Lattouf was sacked, Sydney property lawyer Nicky Stein buzzingly began proceedings by telling members of the group to contact the federal minister for communication asking “how Antoinette is hosting the morning ABC Sydney show.” Employing Lattouff apparently breached Clause 4 of the ABC code of practice on impartiality.

Stein cockily went on to insist that, “It’s important ABC hears from not just individuals in the community but specifically from lawyers so they feel there is an actual legal threat.” She goes on to read that a “proper” rather than “generic” response was expected “by COB [close of business] today or I would look to engage senior counsel.”

Did such windy threats have any basis? No, according to Stein. “I know there is probably no actionable offence against the ABC but I didn’t say I would be taking one – just investigating one. I have said that they should be terminating her employment immediately.” Utterly charming, and sufficiently so to attract attention from the ABC chairperson herself, who asked for further venting of concerns.

Indeed, another member of the haranguing clique, Robert Goot, also deputy president of the Executive Council of Australian Jewry, could boast of information he had received that Lattouf would be “gone from morning radio from Friday” because of her anti-Israeli stance.

There has been something of a journalistic exodus from the ABC of late. Nour Haydar, an Australian journalist also of Lebanese descent, resigned expressing her concerns about the coverage of the Israel-Gaza conflict at the broadcaster. There had been, for instance, the creation of a “Gaza advisory panel” at the behest of ABC News director Justin Stevens, ostensibly to improve the coverage of the conflict. “Accuracy and impartiality are core to the service we offer audiences,” Stevens explained to staff. “We must stay independent and not ‘take sides’.”

This pointless assertion can only ever be a threat because it acts as an injunction on staff and a judgment against sources that do not favour the accepted line, however credible they might be. What proves acceptable, a condition that seems to have paralysed the ABC, is to never say that Israel massacres, commits war crimes, and brings about conditions approximating to genocide. Little wonder that coverage on South Africa’s genocide case against Israel in the International Court of Justice does not get top billing on in the ABC news headlines.

Palestinians and Palestinian militias, on the other hand, can always be written about as brute savages, rapists and baby slayers. Throw in fanaticism and Islam, and you have the complete package ready for transmission. Coverage in the mainstays of most Western liberal democracies of the Israeli-Palestinian conflict, as the late Robert Fisk pointed out with pungency, repeatedly asserts these divisions.

After her signation Haydar told the Sydney Morning Herald that, “Commitment to diversity in the media cannot be skin deep. Culturally diverse staff should be respected and supported even when they challenge the status quo.” But Haydar’s argument about cultural diversity should not obscure the broader problem facing the ABC: policing the way opinions and material on war and any other divisive topic is shared. The issue goes less to cultural diversity than permitted intellectual breadth, which is distinctly narrowing at the national broadcaster.

Lattouf, for her part, is pursuing remedies through the Fair Work Commission, and seeking funding through a GoFundMe page, steered by Lauren Dubois. “We stand with Antoinette and support the rights of workers to be able to share news that expresses an opinion or reinforces a fact, without fear of retribution.”

Kenneth Roth, former head of Human Rights Watch, expressed his displeasure at the treatment of Lattouf for sharing HRW material, suggesting the ABC had erred. ABC’s senior management, through a statement from managing director David Anderson, preferred the route of craven denial, rejecting “any claim that it has been influenced by any external pressure, whether it be an advocacy group or lobby group, a political party, or commercial entity.” They would, wouldn’t they?

 

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Bypassing Parliament: Westminster, the Royal Prerogative and Bombing Yemen

There is something distinctly revolting and authoritarian about the royal prerogative. It reeks of clandestine assumption, unwarranted self-confidence and, most of all, a blithe indifference to accountability before elected representatives. That prerogative, in other words, is the last reminder of divine right, the fiction that a ruler can have powers vested by an unsubstantiated deity, the invisible God, and a punishing force beyond the reach of human control. It is anathema to democracy, a stain on republican models of government, a joke on any political system that has some claim on representing what might be called the broader citizenry.

On January 11, the UK government, in league with the United States with support from a number of other countries, attacked Houthi positions in Yemen. The decision had been made without recourse to Parliament and justified by Article 51 of the UN Charter as “limited, necessary and proportionate in self-defence.”

In his statement on the attacks, Prime Minister Rishi Sunak pointed to the Houthi’s role in staging “a series of dangerous and destabilising attacks against commercial shipping in the Red Sea, threatening UK and other international ships, causing major disruption to a vital trade route and driving up commodity prices.” He made no mention of the Houthis’ own justification for the attacks as necessary measures to disrupt Israeli shipping and interests in response to their systematic, bloodcurdling razing of Gaza.

Lip service has been paid by the executive within the Westminster system to Parliament’s importance in deciding whether the country commits to military action or not. The stark problem is that the action is always decided upon in advance, and no dissent among parliamentarians will necessarily sway the issue. Motions can be proposed and rejected but remain non-binding on the executive emboldened by the prerogative.

The British decision to commit to the egregious invasion of Iraq in 2003 was already a foregone conclusion, despite preliminary debates in the House of Commons and huge public protests against the measure. On March 18, 2011, the then British Prime Minister David Cameron informed the House of his intention to attack Libya, leading to a government motion on March 21 that the chamber “supports Her Majesty’s Government […] in the taking of all necessary measures to protect civilians and civilian-protected measures.”

That same year, the then Coalition government in the UK acknowledged that a convention had crystallised in Parliament that the House of Commons should be availed of “an opportunity to debate the matter [of committing troops] and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate.”

The broadly worded nature of the caveats – in cases of emergency or when it would not be appropriate – have made something of a nonsense of the convention. In April 2016, Secretary for Defence Michael Fallon made much of the “exception”, arguing that it was “important to ensure that this and future Governments can use their judgment about how best to protect the security and interests of the UK.”

Parliament, in short, should be put in its place when necessary. Governments know best when it comes to matters of national security; parliamentarians less so. “In observing the Convention,” Fallon goes on to explain, “we must ensure that the ability of our Armed Forces is to act quickly and decisively, and to maintain the security of their operations, is not compromised.” In such cases, matters could be dealt with retrospectively, with the government of the day subsequently informing Parliament after the fact.

An example of this absurd policy was played out in the decision by the UK government in April 2018 to target chemical weapons facilities of Syria’s Assad regime. Hiding behind the weasel word of humanitarianism, the explanation for avoiding Parliament was shoddy and leaden. “It was necessary,” came the explanation from the PM’s office, “to strike with speed so we could allow our Armed Forces to act decisively, maintain the vital security of their operations, and protect the security and interests of the UK.”

The Yemen strikes eschew humanitarianism (the humanitarian justifications advanced by the Houthis in protecting Palestinian civilians has been rejected), but shipping interests. The Armed forces minister, James Heappey, was satisfied that an exception to the convention in consulting Parliament had presented itself. “The Prime Minister,” the minister parroted, “needs to make decisions such as these based on the military, strategic and operational requirements – that led to the timing.”

With the horse having bolted merrily out of the stable, Heappey remarked with all due condescension that Parliament would, in time, be able to respond to the decision to strike Yemen. An “opportunity” would be made available “when Parliament returns for these things to be fully discussed and debated.” The sheer redundancy of its role could thereby be affirmed.

Much agitated by this state of affairs, former shadow Chancellor John McDonnell opined that no military action should take place without Parliament’s approval. “If we have learnt anything in recent years it’s that military intervention in the Middle East always has dangerous & often unforeseen consequences. There is a risk of setting the region alight.”

Liberal Democrat Foreign Affairs spokesperson Layla Moran was of the view that Parliament should not be bypassed in matters of war, yet opting for the rather fatuous formula arising out of the 2011 convention. “Rushi Sunak must announce a retrospective vote in the House of Commons on these strikes, and recall Parliament this weekend.”

The use of the royal prerogative in using military force remains one of those British perversions that makes for good common room conversation but offends the sensibilities of the democratically minded elector. A far better practice would be to make the PM of the day accountable to that most essential body of all: Parliament. That same principle would be extended to other constitutional monarchies, which are similarly weighed down by the all too liberal use of the prerogative when shedding blood. If a country’s citizens are to go to war to kill and be killed, surely their elected representatives should have a say in that most vital of decisions?

 

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Israel’s argument at The Hague: We are Incapable of Genocide

Israel’s relationship with the United Nations, international institutions and international law has at times bristled with suspicion and blatant hostility. In a famous cabinet meeting in 1955, Prime Minister David Ben-Gurion famously knocked back the suggestion that the United Nations 1947 plan for partitioning Palestine had been instrumental in creating the State of Israel. “No, no, no!” he roared in demur. “Only the daring of the Jews created the state, and not any oom-shmoom resolution.”

In the shadow of the Holocaust, justifications for violence against foes mushroom multiply. Given that international law, notably in war, entails restraint and limits on the use of force, doctrines have been selectively pruned and shaped, landscaped to suit the needs of the Jewish state. When the strictures of convention have been ignored, the reasoning is clipped for consistency: defenders of international law and its institutions have been either missing in the discussion or subservient to Israel’s enemies. They were nowhere to be seen, for instance, when Egypt’s Gamal Abdel Nasser was preparing for war in the spring of 1967. Israel’s tenaciously talented statesman, Abba Eban, reflected in his autobiography about the weakness of the UN in withdrawing troops from the Sinai when pressured by Nasser to do so. It “destroyed the most central hopes and expectations on which we had relied on withdrawing from Sinai.”

These steely attitudes have seen international convention and practice, in the Israeli context, treated less as Dickensian ass as protean instruments, useful to deploy when convenient, best modified or ignored when nationally inconvenient. This is most evident regarding the Israel-Hamas war, which is now into its third month. Here, Israeli authorities are resolute in their calls that Islamic terrorism is the enemy, that its destruction is fundamental for civilisation, and that crushing measures are entirely proportionate. Palestinian civilian deaths might be regrettable but all routes of blame lead to Hamas and its resort to human shields.

These arguments have failed to convince a growing number of countries. One of them is South Africa. On December 29, the Republic filed an application in the International Court of Justice alleging “violations by Israel regarding the Convention on the Prevention and Punishment of the Crime of Genocide […] in relation to Palestinians in the Gaza Strip.” Various “acts and omissions” by the Israeli government were alleged to be “genocidal in character, as they are committed with the requisite specific intent … to destroy the Palestinians in Gaza as part of the broader Palestinian national, racial and ethnical group.” What Pretoria is seeking is both a review of the merits of the case and the imposition of provisional measures that would essentially modify, if not halt, Israel’s Gaza operation.

Prior to its arguments made before the 15-judge panel on January 12, Israel rejected “with contempt the blood libel by South Africa in its application to the International Court of Justice (ICJ).” The Israeli Foreign Ministry went so far as to suggest that the court was being exploited, while South Africa was, in essence, “collaborating with a terror group that calls for the destruction of Israel.”

Prime Minister Benjamin Netanyahu, with demagogic rage, claimed that his country had witnessed “an upside-down world. Israel is accused of genocide while it is fighting against genocide.” The country was battling “murderous terrorists who carried out crimes against humanity.” Government spokesman Eylon Levy tried to make it all a matter of Hamas, nothing more, nothing less. “We have been clear in word and in deed that we are targeting the October 7th monsters and are innovating ways to uphold international law.”

In that innovation lies the problem. Whatever is meant by such statements as those of Israel Defence Forces spokesman, Rear Adm. Daniel Hagari, that “Our war is against Hamas, not against the people of Gaza”, the catastrophic civilian death toll, destruction, displacement and starvation would suggest the contrary. Innovation in war often entails carefree slaughter with a clear conscience.

On another level, the Israeli argument is more nuanced, going to the difficulties of proving genocidal intent. Amichai Cohen of Israel’s Ono Academic College and senior fellow at the Israel Democracy Institute admits that comments from right-wing Israeli ministers calling for the “emigration” of Palestinians from Gaza were not helpful. (They were certainly helpful to Pretoria’s case.) But he insists that the South African argument is based on “classic cherry-picking.” Cohen should know better than resort to the damnably obvious: all legal cases are, by definition, exercises of picking the finest cherries in the orchard.

The Israeli defence team’s oral submissions to the ICJ maintained a distinct air of unreality. Tal Becker, as legal advisor to the Israeli Foreign Ministry, tried to move judicial opinion in his address by drawing upon the man who minted genocide as a term of international law, Raphael Lemkin. Invariably, it was Becker’s purpose to again return to the Holocaust as “unspeakable” and uniquely linked to the fate of the Jews, implying that Jews would surely be incapable of committing those same acts. But here was South Africa, raining on the sacred flame, invoking “this term in the context of Israel’s conduct in a war it did not start and did not want. A war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad and other terrorist organizations whose brutality knows no bounds.” Israel, pure; Israel vulnerable; Israel under attack.

In yet another jurisprudential innovation, Becker insisted that the Genocide Convention was not connected in any way to “address the brutal impact of intensive hostilities on the civilian population, even when the use of force raises ‘very serious issues of international law’ and involves ‘enormous suffering’ and ‘continuing loss of life’.” The Convention, rather, was meant “to address a malevolent crime of the most exceptional severity.”

The view is reiterated by another lawyer representing Israel. “The inevitable fatalities and human suffering of any conflict,” submitted Christopher Staker, “is not of itself a pattern of conduct that plausibly shows genocidal intent.” Butcheries on a massive scale would not, in of themselves, suggest such the requisite mental state to exterminate a race, ethnic or religious group.

As for South Africa’s insistence that provisional measures be granted, Staker was unwavering in repeating the familiar talking points. They “would stop Israel defending its citizens, more citizens could be attacked, raped and tortured [by Hamas], and provisional measures would prevent Israel doing anything.”

Legal tricks and casuistry were something of a blooming phenomenon in Israel’s submissions. South Africa had, according to Becker, submitted “a profoundly distorted factual and legal picture. The entirety of its case hinges on deliberately curated, decontextualised, and manipulative description of the reality of current hostilities.” Happy to also do a little bit of decontextualising, curating and manipulating himself, Becker trotted out the idea that, in accusing Israeli’s war methods as being genocidal, Pretoria was “delegitimizing Israel’s 75-year existence in its opening presentation.” It entailed erasing Jewish history and excising “any Palestinian agency or responsibility.” Such a ploy has been Israel’s rhetorical weapon for decades: all those who dare judge the state’s actions in a bad light also judge the legitimacy of the Jewish state to exist.

Malcom Shaw, a figure known for his expertise in the thorny realm of territorial disputes, did his little bit of legal curation. He took particular issue with South Africa’s use of history in suggesting that Israel had engaged in a prolonged dispossession and oppression of the Palestinians, effectively a remorseless, relentless Nakba lasting 75 years. The submission was curious for lacking any mooring in history, a fatal error to make when considering the Israel-Palestinian issue. It’s also palpably inaccurate, given the dozens of statements made by Israeli politicians over the decades acknowledging the brutal, ruthless and dispossessing tendencies of their own country. But legal practitioners love confines and walled off applications. The only thing that mattered here, argued Shaw, was the attack of October 7 by Hamas, a sole act of barbarity that could be read in terrifying isolation. That, he claimed was “the real genocide in this situation.”

Having tossed around his own idea about the real genocidaires (never Israel, remember?), Shaw then appealed to the sanctity of the term genocide, one so singular it would be inapplicable in most instances. Conflicts could still be brutal, and not be genocidal. “If claims of genocide were to become the common currency of our conflict … the essence of this crime would be diluted and lost.” Woe to the diluters.

Gilad Noam, in closing Israel’s defence, rejected the characterisation of Israel by South Africa as a lawless entity that regarded “itself as beyond and above the law”, whose population had become infatuated “with destroying an entire population.” In a sense, Noam makes a revealing point. What makes Israel’s conduct remarkable is that its government claims to operate within a world of laws, a form of hyper-legalisation just as horrible as a world without laws.

Ironically enough, the Lemkin Institute for Genocide Prevention has been furiously pressing the International Criminal Court to indict Israeli Prime Minister Benjamin Netanyahu for the crime of genocide, the siege and bombardment of Gaza “and the many expressions of genocidal intent, especially in his deleted tweet from 10/17/2023.” The tweet (or post) in question crudely and murderously declared that, “This is a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.” If that does not reveal intent, little else will.

 

 

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Futile and Dangerous: Bombing Yemen in the Name of Shipping

What a show. As US Secretary of State Antony Blinken was promoting a message of calm restraint and firm control in limiting the toxic fallout of Israel’s horrific campaign in Gaza, a decision was made by his government, the United Kingdom and a few other reticent collaborators to strike targets in Yemen, including the capital Sana’a. These were done, purportedly, as retribution for attacks on international commercial shipping in the Red Sea by the Iran-backed Houthi rebels.

The wording in a White House media release mentions the operation’s purpose and the relevant participants. “In response to continued illegal, dangerous, and destabilizing Houthi attacks against vessels, including commercial shipping, transiting the Red Sea, the armed forces of the United States and the United Kingdom, with support from the Netherlands, Canada, Bahrain, and Australia, conducted joint strikes in accordance with the inherent right of individual and collective self-defense.”

US Air Forces Central Command further revealed that the “multinational action targeted radar systems, defense systems, and storage and launch sites for one way attack unmanned aerial systems, cruise missiles, and ballistic missiles.”

The rationale by the Houthis is that they are targeting shipping with a direct or ancillary Israeli connection, hoping to niggle them over the barbarities taking place in Gaza. As the Israeli Defence Forces are getting away with, quite literally, bloody murder, the task has fallen to other forces to draw attention to that fact. Houthi spokesperson Mohammed Abdusalam’s post was adamant that “there was no threat to international navigation in the Red and Arabian Seas, and the targeting was and will continue to affect Israeli ships or those heading to the ports of occupied Palestine.”

But that narrative has been less attractive to the supposedly law-minded types in Washington and London, always mindful that commerce trumps all. Preference has been given to such shibboleths as freedom of navigation, the interests of international shipping, all code for the protection of large shipping interests. No mention is made of the justification advanced by the Houthi rebels and the Palestinian plight, a topic currently featuring before the International Court of Justice in the Hague.

Another feature of the strikes is the absence of a Security Council resolution from the United Nations, technically the sole body in the international system able to authorise the use of force under the UN Charter. A White House statement on January 11 attributes authority to the strikes much the same way the administration of George W. Bush did in justifying the warrantless, and illegal invasion of Iraq in March 2003. (Ditto those on his same, limited bandwidth, Tony Blair of the UK and John Howard of Australia.) On that occasion, the disappointment and frustrations of weapons inspectors and rebukes from the UN about the conduct of Saddam Hussein, became vulnerable to hideous manipulation by the warring parties.

On this occasion, a “broad consensus as expressed by 44 countries around the world on December 19, 2023” and “the statement by the UN Security Council on December 1, 2023, condemning Houthi attacks against merchant and commercial vessels transiting the Red Sea” is meant to add ballast. Lip service is paid to the self-defence provisions of the UN Charter.

In a separate statement, Biden justified the attack on Houthi positions as necessary punishment for “unprecedented Houthi attacks against international maritime vessels in the Red Sea – including the use of anti-ship ballistic missiles for the first time in history.” He also made much of the US-led Operation Prosperity Guardian, “a coalition of more than 20 nations committed to defending international shipping and deterring Houthi attacks in the Red Sea.” No mention of the Israeli dimension here, at all.

In addition to the pregnant questions on the legality of such strikes in international law, the attacks, at least as far as US execution was concerned, was far from satisfactory to some members of Congress. Michigan Democratic Rep. Rashita Tlaib was irked that US lawmakers had not been consulted. “The American people are tired of endless war.” Californian Rep. Barbara Lee warned that, “Violence only begets more violence. We need a ceasefire now to prevent deadly, costly, catastrophic escalation of violence in the region.”

A number of Republicans also registered their approval of the stance taken by another Californian Democrat, Rep. Ro Khanna, who expressed with certitude the view that Biden had “to come to Congress before launching a strike against the Houthis in Yemen and involving us in another middle eastern conflict.” Republican Senator Mike Lee of Utah was in full agreement, as was West Virginia Republican Rep. Thomas Massie. “Only Congress has the power to declare war,” Massie affirmed.

Unfortunately for these devotees of Article I of the US Constitution, which vests Congress approval powers for making war, the War Powers Act, passed by Congress in November 1973, merely requires the president to inform Congress within 48 hours of military action, and the termination of such action within 60 days of commencement in the absence of a formal declaration of war by Congress or authorisation of military conflict. These days, clipping the wings of the executive when it comes to engaging in conflict is nigh impossible.

There was even less of a debate about the legality or wisdom of the Yemen strikes in Australia. Scandalously, and with a good deal of cowardice, the government preferred a deafening silence for hours in the aftermath of the operation. The only source confirming that personnel of the Australian Defence Forces were involved came from Biden, the commander-in-chief of another country. There had been no airing of the possibility of such involvement. Australian Prime Minister Anthony Albanese had, in not sending a warship from the Royal Australian Navy to join Operation Prosperity Guardian, previously insisted that diplomacy might be a better course of action. Evidently, that man is up for turning at a moment’s notice.

In a brief statement made at 4.38 pm on of January 12 (there was no press conference in sight, no opportunity to inquire), Albanese declared with poor conviction that, “Australia alongside other countries has supported the United States and the United Kingdom to conduct strikes to deal with this threat to global rules and commercial shipping.” He had waited for the best part of a day to confirm it to the citizenry of his country. He had done so without consulting Parliament.

Striking the Houthis would seem, on virtually all counts, to be a signal failure. Benjamin H. Friedman of Defense Priorities sees error piled upon error: “The strikes on the Houthis will not work. They are very unlikely to stop Houthi attacks on shipping. The strikes’ probable failure will invite escalation to more violent means that may also fail.” The result: policymakers will be left “looking feckless and thus tempted to up the ante to more pointless war to solve a problem better left to diplomatic means.” Best forget any assuring notions of taking the sting out of the expanding hostilities. All roads to a widening war continue to lead to Israel.

 

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Tall Tales and Murderous Restraint: Blinken on Gaza and Israel

The role of the US State Department regarding Israel’s continued obliteration of Gaza is becoming increasingly clear. As the actions of the Israeli Defence Forces continue, the Secretary of State, Anthony Blinken, is full of meaningless statements about restraint and control, the protection of civilians, the imperatives of humanitarianism in war. As the war continues, so do those statements.

As the new year began, an official from the White House expressed satisfaction at what appeared “to be the start of the gradual shift to lower-intensity operations in the north that we have been encouraging.” But the revised Israeli approach did not “reflect any changes in the south.” The monstrous death toll, in short, would continue to rise.

As Washington feigns a reproachful attitude to the IDF’s grossly lethal tactics, claiming success in restraining them, another, failing front is also being pursued in the Arab world and beyond. As Israel’s great defender, the US is attempting to hold back fury and consternation as the dirty deeds by their favourite ally in the Middle East are being executed.

Blinken’s latest round of travelling has the flavour of swinging by tetchy neighbours to see how they are faring in the sea of blood and acrimony. The itinerary includes Istanbul, Crete, Amman, Doha, Abu Dhabi, Al-’Ula, Tel Aviv, the West Bank, Manama and Cairo. The State Department’s media release on January 4 outlines the obsolete agenda any sensible diplomat would do best to discard. “Throughout his trip, the Secretary will underscore the importance of protecting civilian lives in Israel and the West Bank and Gaza; securing the release of all remaining hostages; our shared commitment to facilitating the increased, sustained delivery of life-saving humanitarian assistance to civilians in Gaza and the resumption of essential services; and ensuring that Palestinians are not forcibly displaced in Gaza.”

So far, Palestinians are being massacred by the IDF in Gaza, forcibly deprived of life-saving humanitarian assistance and essential services in a sustained act of strangulation while being forcibly displaced. They are being oppressed, harassed and murdered by vigilante Israeli settlers in the West Bank, even as the army looks the other way.

It follows that Blinken is telling tall stories and hoping that legs carry them far. They are also being told as proceedings before the International Court of Justice instituted by South Africa commence to determine whether Israel’s conduct in Gaza satisfies the definition of genocide in international law.

The strategy becomes clearer in the second part of the disingenuous traveller’s agenda. Blinken “will also discuss urgent mechanisms to stem violence, calm rhetoric, and reduce regional tensions, including deterring Houthi attacks on commercial shopping in the Red Sea and avoiding escalation in Lebanon.”

The Houthi attacks and the increasingly violent situation in Lebanon serve as golden distractions for Washington, since they give the Biden administration room to simultaneously claim to be preventing a widening of the conflict while permitting Israel’s butchery to continue.

Corking the conflict, however, is not proving such a success. The war is widening, even if reporting on the subject remains sketchy in the negligently lazy news outlets of the Anglosphere. In addition to the bold moves of the Houthis and escalating violence on the border between Israel and Lebanon come ongoing, harrying efforts from the Islamic Resistance in Iraq. An Al-Mayadeen report on January 7 took note of an announcement from the group, also known as the Iraqi al-Najuba Movement, that it had fired an al-Arqab long-range cruise missile at Haifa “in support of our people in Gaza and in response to the massacres committed by the usurping entity against Palestinian civilians, including children, women, and the elderly.”

A spokesperson for the Iraqi Resistance, Hussein al-Moussawi, was bullish in claiming that the group had the capacity to strike targets beyond Haifa. Conditions to develop the group’s weapons had also been “favourable”.

In a separate statement, the Islamic Resistance also revealed that its fighters had targeted an Israeli base on the occupied Golan Heights, using drones. To this can be added drone attacks on the US army base of Qasrok, located in the countryside of Hasakah in northeastern Syria, and the Ain al-Asad airbase in western Iraq. The base continues to host US forces.

Perhaps the greatest canard of all in this briefest of trips by Blinken is the continued, now absurd claim, that Washington is committed “to working with partners to set the conditions necessary for peace in the Middle East, which includes comprehensive, tangible steps towards the realization of a future Palestinian state alongside the State of Israel, with both living in peace and security.”

In his remarks to President Mahmoud Abbas in Ramallah, Blinken showed the hardened ignorance that will ensure the Israeli-Palestinian conflict will continue in some form. In his mind, a “reformed” Palestinian Authority will take over the reins of a ruined Gaza (“effective responsibility”) whatever the residents of Gaza think.

Palestinians will never, given current conditions, be permitted sovereignty and anything remotely resembling a thriving, viable state. Israel, whose very existence is based on predation, dispossession and war, will never permit a Palestinian entity to be given equal standing at the diplomatic or security table. The US, in the tatty drag of an independent broker, will go along with the pantomime, promoting, as Blinken is, a sham, counterfeit form of autonomy, one forever subject to conditions, demarcations and restraints. And one thing is almost certain about any future rump Palestinian entity: it will be deprived of any right to defend itself.

 

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Holstering a Career: Wayne LaPierre Resigns from the NRA Executive

Power corrupts, and absolute power corrupts absolutely. The now departed chief executive of the National Rifle Association of America (NRA) should know. Wayne LaPierre’s time had come to resemble a dictatorship in a hurry, pinching the silver and stomping on the dissenters on its way out. Allegations were already being made at the NRA’s annual meeting in Indianapolis in 2019, many barbed with the question as to where money from donors was actually going.

There were, for instance, LaPierre’s said suit purchases from the Zegna store in Beverly Hills between 2004 and 2017 amounting to a head shaking $274,695.03, for which Ackerman McQueen, the NRA’s former PR firm, was billed for. The NRA also reimbursed LaPierre for gifts sent to the organisation’s vendors, donors and special recipients, far exceeding federal tax limits.

The NRA’s 2019 tax filing disclosed that the body’s executives (former and current) had received somewhere up to $1.4 million in violation of non-profit regulations. The 2020 tax filing revealed a continuing trend. That year, LaPierre received 1.7 million in compensation, including a $455,000 bonus.

Things have been messy at the world’s most famous gun lobby charity for some time. The New York Attorney General Letitia James has busied herself with pursuing LaPierre and various top-placed individuals in the organisation on grounds of corruption. A lawsuit stretching back to August 2020 seeking the NRA’s dissolution asserts that millions of dollars funded a whole slew of personal benefits, including private jet travel, exorbitantly priced meals and family trips to the Bahamas. In doing so, it alleged that the NRA’s funds were mismanaged, a number of state and federal laws breached, including the body’s own bylaws and policies, and some $64 million lost over the course of three years.

With mulish determination, the NRA fought back, attempting, without success, to dismiss the complaint or change the court venue from Manhattan to more convivial surroundings in Albany. Daringly, it even tried to file for Chapter 11 bankruptcy protection in a federal bankruptcy court in Texas, hoping to reconstitute the body in that state. In May 2021, the court dismissed the claims, finding “that the NRA did not file the bankruptcy petition in good faith.”

In March 2022, LaPierre and the NRA Corporate Secretary and General Counsel John Frazer, ran the second act in trying to dismiss the lawsuit. Inventively, arguments about constitutionality and jurisdiction were advanced. Justice Joel Cohen of the New York County State Supreme Court was unimpressed, though accepted the NRA’s arguments against its dissolution by the Office of the Attorney General (OAG). But in June 2022, Justice Cohen rejected claims by the organisation that “the Attorney General’s investigation was unconstitutionally retaliatory or selective.” The AG’s investigation had been instigated following “reports of serious misconduct and it uncovered additional evidence that, at a bare minimum, undermines any suggestion that was a mere pretext to penalize the NRA for its constitutionally protected activities.”

Two further assaults on the AG’s case were mounted, one in September 2022, which found that James could appoint an independent monitor to oversee the NRA’s accounts as part of the lawsuit, and a last-ditch effort in January this year, which was swatted by the New York State Supreme Court, Appellate Division, First Department. The trial date of January 8 was secure.

A few days before the trial’s opening, a $100,000 settlement between the OAG and Joshua Powell, the body’s former Executive Director of Operations and Chief of Staff, left James crowing. “Joshua Powell’s admission of wrongdoing and Wayne LaPierre’s resignation confirm what we have alleged for years: the NRA and its senior leaders are financially corrupt.”

In the opening stages of the civil trial, Monica Connell, New York’s Assistant Attorney-General, explained to a six-member jury that, “The NRA allowed Wayne LaPierre and his group of insiders … to operate the NRA as ‘Wayne’s World’ for decades.” (Connell could have surely done better than refer to the Mike Myers-Dana Carvey comedy dating from 1992.)

Connell went on to describe tyrant overlords turned kleptomaniacs. “This case is about corruption in a charity. It’s about breaches of trust, it’s about power. People taking their hard-earned money and donate it to charities they believe in. It doesn’t matter what the cause is. They should be able to trust that the hard-earned money they donate is going to advance the mission of that charity.”

Where, when, for the NRA? For decades, it has fetishised, moralised, and upheld the purest virtues of carrying heavy weaponry in civilian life. To be sovereign is to be armed; any laws regulating the use of weapons best reserved for the military is an affront to the Second Amendment’s constitutional decency and the rugged principles of Frontier Man and Woman. Massacres at nightclubs, schools and universities were simply the product of ill minds, not the ease with which one could get a weapon. Better still, give everyone a weapon. Even now, the departing LaPierre declares that “the NRA’s mission, programming, and fight for freedom have never been more secure.”

That said, financial probity and a good nose for accounts matter. To that end, there is something richly fitting, if ironic, that economics and a concern about the use of finances should be the telling factor in the fall of numbers in the NRA. Gun-control lobbies and regulators may scream themselves hoarse about stalled reforms, but they could have hardly hoped for better news than that reported by Stephen Gutowski in February last year.

At the time, LaPierre told attendees of the NRA’s most recent board meeting that the organisation had shrunk to 4.3 million numbers. Such a membership still seems impressive, till you realise that the fall in numbers approximates to about one million subscribers since the tide of corruption began battering the organisation. Between 2021 and 2022, revenue fell by almost $24 million, or 11 percent. But expenses ballooned by 5.5 percent, or $11.5 million.

The carefully chosen, if typically anodyne words in a presentation prepared for the group’s finance committee in January 2023 noted that “Membership/Contribution performance has continued to experience softness through 2022.” James, through her office, is ensuring the experience is also going to be a hard one.

 

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Circle of Secrecy: The Iraq War’s Missing Cabinet Documents

They are unlikely to be revelatory, will shatter no myths, nor disprove any assumptions. Cabinet documents exist to merely show that a political clique – the heart of the Westminster model of government, so to speak – often contain the musings of invertebrates, spineless on most issues such as foreign policy, while operating at the behest of select interests. Hostility to originality is essential since it is threatening to the tribe; dissent is discouraged to uphold the order of collective cabinet responsibility.

The recent non-story arising from the cabinet documents made available as to why Australia participated in a murderous, destructive and most probably illegal war against Iraq in 2003 proves that point. The documents available showed, for instance, that a country, without mandatory parliamentary consultation, can go to war under the stewardship of a cabal influenced by the strategic interests of a foreign government. The Howard government, famously buried in the fatty posterior of the US imperium, was always going to commit Australian military personnel to whatever military venture Washington demanded of it. (In some cases, even without asking.)

It was modish to suggest during the “Global War on Terror” that governments with fictional weapons of mass destruction might pass them on to surrogate non-state actors. It was fashionable to misread intelligence material alleging such links, and, when that intelligence did not stack up, concoct it, as Tony Blair’s government happily did, sexed-up dossiers and all, in justifying Britain’s participation in the mauling of Iraq.

The larger story in the recent documents affair over Iraq was what documents were withheld from the provision to the Australian National Archives in 2020. In his January 3 press conference, Australian Prime Minister Anthony Albanese outlined the process. Normally, cabinet documents would be released two decades after their creation. Such documents are provided to the Archives three years in advance by the government of the day. But on this occasion, 78 were omitted from the transfer, enabling Albanese to point the finger firmly at his predecessor, Scott Morrison. (Those documents have since been transferred to the Archives.)

In Albanese’s view, “Australians have the right to know the basis upon which Australia went to war in Iraq. Australians lost their lives during the conflict and we know that some of the stated reasons for going to war was not correct in terms of the weapons of mass destruction that was alleged Iraq had at the time.” Australians, he went on to say, had “a right to know what the decision-making process was.”

The mistake in question had to be corrected, and the Archives had to release the documentation provided to them. A constricting caveat, however, was appended to the declaration: the release of the documents had to “account for any national security issues […] upon the advice of the national security agencies.”

The caveat is a good starting point to suggest that this documents saga, and the restrictions upon the disclosure of the missing 78 Cabinet records, are set to continue. For one thing, Albanese has added to the farce of secrecy by commencing an independent review that is barely worth that title. The review is to be chaired by the very sort of person you would expect to bury rather than find things: Dennis Richardson, former director of the Australian Secret Intelligence Organisation and former head of the Department of Foreign Affairs and Trade (DFAT).

Richardson’s appointment continues a practice of partisan control over a process that should be beyond the national-security fraternity. There are fewer strings of accountability, as would apply, say, to the Commonwealth Ombudsman. There are no terms of reference outlined. Short of simply being a political manoeuvre that might cast a poor light on the previous government’s practices, it is unclear what Richardson’s purpose really is apart from justifying the retention of any of the said documents from public view.

Either way, he will be on a tidy sum for the task, something which he is becoming rather used to. As The Klaxon reports, Richardson has been well remunerated by the Department of the Prime Minister and Cabinet (PM&C) for previous work. A $50,000-a-month contract was awarded to him last year for “strategic advice and review” between August 2 and October 31. The department refuses to state what it was for, preferring the insufferably vague justification of some “need for independent research or assessment”. Be on guard whenever the term “independent” is coupled with “inquiry” or “assessment” in an Australian government context.

A media release from the PM&C further notes that no department official or Minister has a direct role in the release or otherwise of the documents in question; the Archives will have the final say on whether those documents will be released or otherwise, whatever Albanese says. Researchers, transparency activists and those keen on open government, are almost guaranteed disappointment, given the habitual secrecy and dysfunction that characterises the operation of that body.

If there is a true lesson in this untidy business for the Albanese government, it must surely lie in the need to debate, discuss and dissent from matters that concern the entanglement of Australia, not merely in foreign wars but in alliances that cause them. That, sadly, is a lesson that is nowhere being observed. Howard’s crawling disposition has found its successor in Albanese’s obsequiousness, in so far as foreign conflicts are concerned. Wherever the US war machine is deployed, Australia will hop to its aid with gleeful obedience.

And as for anything to do with revealing the Australian decision-making process about the decision to invade, despoil and ruin yet another Middle Eastern state in 2003, one is better off consulting records from the White House and the US State Department.

 

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Funding the Imperium: Australia Subsidises US Nuclear Submarines

AUKUS, the trilateral pact between the United States, the United Kingdom, and Australia, was a steal for all except one of the partners. Australia, given the illusion of protection even as its aggressive stance (acquiring nuclear-powered submarines, becoming a forward base for the US military) aggravated other countries; the feeling of superiority, even as it was surrendering itself to a foreign power as never before, was the loser in the bargain.

Last month, Australians woke up to the sad reminder that their government’s capitulation to Washington has been so total as to render any further talk about independence an embarrassment. Their Defence Minister, Richard Marles, along with his deputy, the Minister for Defence Industry Pat Conroy, preferred a different story. Canberra had gotten what it wanted: approval by the US Congress through its 2024 National Defense Authorization Act (NDAA) authorising the transfer of three Virginia class nuclear-powered submarines to the Royal Australian Navy, with one off the production line, and two in-service boats. Australia may also seek congressional approval for two further Virginia class boats.

The measures also authorised Australian contractors to train in US shipyards to aid the development of Australia’s own non-existent nuclear-submarine base, and exemptions from US export control licensing requirements permitting the “transfer of controlled goods and technology between Australia, the United Kingdom, and the United States without the need for an export license.”

For the simpleminded Marles, Congress had “provided unprecedented support to Australia in passing the National Defense Authorization Act which will see the transfer of submarines and streamlined export control provisions, symbolising the strength of our Alliance, and our shared commitment to the AUKUS partnership.”

Either through ignorance or wilful blindness, the Australian defence minister chose to avoid elaborating on the less impressive aspects of the authorising statute. The exemption under the US export licensing requirements, for instance, vests Washington with control and authority over Australian goods and technology while controlling the sharing of any US equivalent with Australia. The exemption is nothing less than appropriation, even as it preserves the role of Washington as the drip feeder of nuclear technology.

An individual with more than a passing acquaintance with this is Bill Greenwalt, one of the drafters of the US export control regime. As he told the Australian Broadcasting Corporation last November, “After years of US State Department prodding, it appears that Australia signed up to the principles and specifics of the failed US export control system.” In cooperating with the US on this point, Australia would “surrender any sovereign capability it develops to the United States control and bureaucracy.”

The gem in this whole venture, at least from the perspective of the US military industrial complex, is the roping in of the Australian taxpayer as funder of its own nuclear weapons program. Whatever its non-proliferation credentials, Canberra finds itself a funder of the US naval arm in an exercise of modernised nuclear proliferation. Even the Marles-Conroy media release admits that the NDAA helped “establish a mechanism for the US to accept funds from Australia to lift the capacity of the submarine industrial base.” Airily, the release goes on to mention that this “investment” (would “gift” not be a better word?) to the US Navy would also “complement Australia’s significant investment in our domestic submarine industrial base.”

A few days after the farcical spectacle of surrender by Australian officials, the Congressional Research Service provided another one of its invaluable reports that shed further light on Australia’s contribution to the US nuclear submarine program. Australian media outlets, as is their form on covering AUKUS, remained silent about it. One forum, Michael West Media, showed that its contributors – Rex Patrick and Philip Dorling – were wide awake.

The report is specific to the Navy Columbia (SSBN-826) Class Ballistic Missile Submarine Program, one that involves designing and building 12 new SSBNs to replace the current, aging fleet of 14 Ohio-class SSBNs. The cost of the program, in terms of 2024 budget submission estimates for the 2024 financial year, is US$112.7 billion. As is customary in these reports, the risks are neatly summarised. They include the usual delays in designing and building the lead boat, thereby threatening readiness for timely deployment; burgeoning costs; the risks posed by funding the Columbia-class program to other Navy programs; and “potential industrial-base challenges of building both Columbia-class boats and Virginia-class attack submarines (SSNs) at the same time.”

Australian funding becomes important in the last concern. Because of AUKUS, the US Navy “has testified” that it would require, not only an increase in the production rate of the Virginia-class to 2.33 boats per year, but “a combined Columbia-plus-Virginia procurement rate” of 1+2.33. Australian mandarins and lawmakers, accomplished in their ignorance, have mentioned little about this addition. But US lawmakers and military planners are more than aware that this increased procurement rate “will require investing several billion dollars for capital plant expansion and improvements and workforce development at both the two submarine-construction shipyards (GD/EB [General Dynamics’ Electric boat in Groton, Connecticut] and HII/NSS [Huntington Ingalls Industries’ Newport News Shipbuilding]) and submarine supplier firms.”

The report acknowledges that funding towards the 1+2.33 goal is being drawn from a number of allocations over a few financial years, but expressly mentions Australian funding “under the AUKUS proposed Pillar 1 pathway,” which entails the transfer component of nuclear-powered submarines to Canberra.

The report helpfully reproduces the October 25, 2023 testimony from the Navy before the Seapower and Projection Forces Subcommittee of the House of Armed Services Committee. Officials are positively salivating at the prospect of nourishing the domestic industrial base through, for instance “joining with an Australian company to mature and scale metallic additive manufacturing across the SIB [Submarine Industrial Base].” The testimony goes on to note that, “Australia’s investment into the US SIB builds upon on-going efforts to improve industrial base capability and capacity, create jobs, and utilize new technologies,” and was a “necessary” contribution to “augment VACL [Virginia Class] production from 2.0 to 2.33 submarines per year to support both US Navy and AUKUS requirements.”

The implications from the perspective of the Australian taxpayer are significant. Patrick and Dorling state one of them: that “Australian AUKUS funding will support construction of a key delivery component of the US nuclear strike force, keeping that program on track while overall submarine production accelerates.”

The funding also aids the advancement of another country’s nuclear weapons capabilities, a breach, one would have thought, of Australia’s obligations under the Treaty of Non-Proliferation of Nuclear Weapons. Defence spokesman for the Australian Greens, Senator David Shoebridge, makes that very point to Patrick and Dorling. “Australia has clear international legal obligations to not support the nuclear weapons industry, yet this is precisely what these billions of dollars of AUKUS funding will do.”

The senator also asks “When will the Albanese government start telling the whole truth about AUKUS and how Australians will be paying to help build the next class of US ballistic missile submarines?”

For an appropriate answer, Shoebridge would do well to consult the masterful, deathless British series Yes Minister, authored by Antony Jay and Jonathan Lynn. In one episode, the relevant minister, Jim Hacker, offers this response to a query by the ever-suspicious civil service overlord Sir Humphrey Appleby on when he might receive a draft proposal: “At the appropriate juncture,” Hacker parries. “In the fullness of time. When the moment is ripe. When the necessary procedures have been completed. Nothing precipitate, of course.” In one word: never.

 

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Killing Australians in Lebanon: Selected Targets; Selective Morality

The killing of an Australian-Lebanese national Ibrahim Bazzi, his Lebanese wife Shorouq Hammoud, and his brother Ali Bazzi by the Israeli Defence Forces in a missile strike in southern Lebanon, has been an object exercise in selective outrage, selective ethical concern, and, generally speaking, selective morality.

The strike took place on a home in the neighbourhood of Al-Dawra in the town of Bint Jbeil, said to belong to the Bazzi family. On paper, the case demands investigation, explanation, even reparation. But the Australian government has pounced on an opportunity to ignore the killing of Ibrahim and his wife – both civilians and intending to head back to Sydney – and focus on the background of Ali Bazzi instead.

In his December 28, 2023 press conference, the Australian Attorney-General Mark Dreyfus noted “the announcement made by Hizballah claiming links to one of the Australians killed. We are seeking to establish facts.” The context to essentially excuse the killings is then sketched: “Hizballah is a listed terrorist organisation under Australian law”; there was “daily military activity in southern Lebanon, including rocket and missile fire, as well as airstrikes”; Australians in Lebanon should leave “while commercial options remain available.”

On Ali’s connections, Dreyfus could make much of a terrorist link that, were it to be confirmed, would make the killings, more generally, less egregious. “It’s an offence [for] any Australian to cooperate with, to support, let alone to fight with, a listed terrorist organisation like Hizballah.” But – and here Dreyfus was not drawn – it is not an offence for Australians to serve in the armed forces of a foreign country under Part 5.5 of the Criminal Code Act 1995 (Cth).

Naturally, this would depend on the country in question, and the amoral calculus used when deciding that nonsense called the “national interest”. Australians serving with the IDF is entirely permissible, despite that army’s obliteration of Palestinian civilians in a most cavalier interpretation of international law; Australians serving with their opposite numbers are criminals, buccaneering agents who deserve what they get.

Reserves Captain Lior Sivan, an Australian who served as an IDF tank commander, was killed on December 19 in a Hamas ambush. When news was made public of this fact, his love of Israel and personal attributes splashed the media outlets. Here was a noble human beaming with noble courage, to be garlanded and celebrated. The Department of Foreign Affairs and Trade (DFAT) sent its “condolences to his family during this difficult time and stand ready to provide consular assistance.”

When news came of the slain trio in Bint Jbeil, two civilians were forgotten in favour of the supposedly blighting attributes of the alleged Hezbollah fighter. “Of course,” stated Dreyfus, “there are examples in the past of Australians having had links with Hizballah. One of the reasons why the Australian Government has listed Hizballah, in both its arms, as a terrorist organisation, is because of the potential links to Australia and Australians.”

And what of the destruction of civilian life in this conflict, with thousands of instances of it in Gaza, and a rising toll in Lebanon? The Australian government, Dreyfus insisted, had “consistently called for civilian lives to be protected and we have consistently raised our concerns about the risk of this conflict spreading.”

Peter Cronau, a veteran ABC producer and investigative journalist, makes the point about the relevant processes that need to take place: an investigation followed by the laying of charges; the collection of forensic evidence by the Australian Federal Police and Australian Defence personnel from the Australian embassy in Lebanon; the gathering of evidence “regarding who issued the orders, selected the targeting, and who fired the weapon, using all the intelligence and resources available to Australian officers working at Pine Gap base.”

The role of Pine Gap, a primarily US-run satellite surveillance base located to the southwest of Alice Springs in the Northern Territory, is potentially critical, given its role in furnishing geolocation data to Washington and, in some cases, its allies regarding distant military operations. Targeting data for drone strikes, for instance, has been something of a favourite.

Cronau’s suggestions are credible, and invoking links with Hezbollah by Dreyfus are expedient forms of dismissal. Similar steps of investigation and inquiry were, after all, taken in attempting to identify who and what was used in the shooting down of the Malaysian Airlines flight MH17 over Ukraine in July 2014. The downing of the flight resulted in the loss of 298 lives, including 38 Australians. Much ink and time was expended on identifying the allegedly relevant military personnel involved, the supply chain of the Buk-TELAR missile system, not to mention the repeated insistence on the part of the Australian government that action be taken against the Russian separatists and the Kremlin for their misdeeds.

Canberra proceeded to impose targeted financial sanctions and travel bans on four of the personnel. “These sanctions,” Foreign Minister Penny Wong stated in a media release, “demonstrate the Australian Government’s ongoing commitment to hold to account those responsible for the downing of Flight MH17.”

For all this, Australian nationality is a soupy, thin concept. Its protections are limited, unreliable and arbitrary. When brandished with a certain political preference and bias, it is cherished, a convertible currency in the international stock exchange of diplomacy. We think of the Iranian-detained Australian-British national Kylie Moore-Gilbert who was, for reasons never fully explained, exchanged for a number of Iranian operatives jailed in Thailand over a miscellany of bungled assassination attempts against Israeli officials and targets. Rarely has an Australian Prime Minister, a Foreign Affairs minister, or DFAT, been so busy over the fate of one of their citizens.

We contrast such extravagant efforts with the treatment offered individuals as David Hicks or Mamdouh Habib, seen by the Australian political class as Islamic refuse (converted or born), and therefore deserving of torture and punishment by other powers. To that can be added death by missile strike, as well.

 

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The Economic Incentive: Blocking Israel’s Supply Chain

If demography is destiny, as Auguste Comte tells us, then economics must be current, pinching reality. The Israel-Gaza conflict is invigorating a global protest movement against the state of Israel which is seeing various manifestations. From an economic standpoint, Israel can be seen as vulnerable in terms of global supply lines, potentially at the mercy of sanctions and complete isolation. Both imports and exports are of concern.

Israel, however, has been spared any toothy sanctions regime over its conduct in Gaza. If anything, the Biden administration in Washington has been brightly enthusiastic in sending more shells to the Israeli Defence Forces, despite Congressional reservations and some grumbling within the Democratic Party. This has made such figures as Norwegian doctor Mads Gilbert, who has a long-standing association with the health system in Gaza, wonder why the wealthy states of the West exempt Israel from financial chastisement while economically punishing other powers, such as Russia, without reservation. “Where are the sanctions against the war crimes of Israel?” he asks. “Where are the sanctions against the occupation of Palestine? Where are the sanctions against these abhorrent attacks on civilian healthcare in Gaza?”

The retaliatory initiative has tended to be left to protests at the community level, typified by the Boycott, Divestment, Sanctions (BDS) movement created in 2005. The war in Gaza, however, has resulted in a broader efflorescence of interest. Israeli companies such as Elbit Systems have become specific targets of international protest. On December 21, a global coalition of groups under the umbrella of Progressive International took a day of action against the country’s largest arms company, drawing attention to the tentacular nature of the enterprise in the US, UK, Europe, Brazil and Australia.

Restricting the docking of Israeli shipping at ports, notably from ZIM Integrated Shipping Services, has also presented an opportunity to the protest movement. Actions have been organised as far afield as Australia where “Block the Boat” measures have taken place. During the early evening of November 8, several hundred protesters flocked to the entrance of Melbourne’s international container terminal. On catching sight of a ZIM-branded shipping container, the protestors staged a blockade lasting till the morning of the next day. A similar action was repeated in Sydney on November 11, involving several hundred protestors holding the line on the shores of Port Botany and delaying the arrival of a ZIM vessel.

The assessments that followed the protest were mixed. Zacharias Szumer, writing in Jacobin, admits that such blockades, on their own, “are unlikely to cause a major dint in ZIM’s bottom line.” That said, he is confident enough to see it as part of a globalised effort which “can cumulatively make a difference.”

Then came the sceptical voices who felt that these actions fell dramatically short of substance and effect, a product of righteous, ineffectual tokenism. An anonymous contribution to the New Socialist, purporting to be from one of the protestors, went so far as to call the “Block the Boat” strategy misguided, since it never actually entailed blocking vessels. The promotional materials for the events “indicated that the purpose was actually to say somebody should ‘Block the Boats’, and to ‘call for’ a boycott – a message addressed to ZIM and Albanese.” The writer, clearly agitated, also took issue with the choice of locations (they “weren’t conducive to disruption”) and the “suspiciously rigid, and convenient” timing of the rallies.

Short of these efforts, it is precisely the absence of responses at the highest levels that has precipitated a more global reaction that is upending the order of things. Beyond the protests of activists, community groups, and the more generally outraged come the more direct, state-sponsored measures that have rattled financiers, the carriers and the operators. The crisis in the Red Sea, for instance, where Yemen’s Iran-backed Houthi rebels (Ansar Allah), are putting the brakes on international shipping, is the stellar example. While the measure initially began on November 14 to target Israeli-affiliated merchant shipping, largescale operators have not been spared. “Unlike previous piracy related events in the Red Sea/Gulf of Aden this is a sophisticated military threat and requires a very sophisticated response,” states a briefing note from Inchcape Shipping Services.

The disruptions are significant, given that 30 percent of all container ship traffic passes through the Bab al-Mandab Strait off the coast of Yemen, the point where both the Red Sea and Indian Ocean meet. The actions and threats by the Houthis have seen various oil and gas companies reroute their tankers. Decisions are even being made to suspend shipping through that route in favour of the safer, though costlier and longer route via the Cape of Good Hope. Insurance premiums are also on the rise.

The Egyptians are also raising fees for those using the Suez Canal for the new year. In an October announcement, the SCA promised an increase of between 5-15%, effective from January 15, 2024. The measure is applicable to a fairly comprehensive list of vessel categories, including crude oil tankers, petroleum product tankers, liquefied petroleum gas carriers, containerships and cruise ships.

On December 20, Malaysia, as if heeding the “Block the Boat” protests, announced that it would be preventing Israeli-flagged cargo ships from docking at the country’s ports. Malaysian Prime Minister Anwar Ibrahim announced the decision in a statement, with a specific reference to ZIM. “The Malaysian government decided to block and disallow the Israeli-based shipping company ZIM from docking at any Malaysian port.” Such sanctions were “a response to Israel’s actions that ignore basic humanitarian principles and violate international law through the ongoing massacre and brutality against Palestinians.”

Malaysia also announced, in addition to barring ships using the Israeli flag from docking in the country, the banning of “any ship on its way to Israel from loading cargo in Malaysian ports.”

Blockade, barring, embargo, constriction – all these measures are familiar to the Israeli security establishment as it seeks to strangle and pulverize the Gaza Strip. While closing ports to Israeli shipping is modest in comparison to starving and strafing an entire population, it is fittingly reciprocal and warranted. The Israel campaign against Gaza, and Palestinians more generally, is no longer a local, contained affair.

 

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Criminal Assumptions: The Howard Cabinet and Invading Iraq

When war criminals can daub canvasses in blithe safety, rake in millions of dollars in after dinner speeches and bore governments to death with their shoddy words of wisdom, the world is not so much as it should be, but merely as it is. Former US President George W. Bush, former British Prime Minister Tony Blair, and tag along bore, former Australian Prime Minister John Howard, remain at large, despite their respective countries wagging fingers of disapproval at authoritarian regimes for defying the rules-based international order. Never a more fitting trio in terms of abusing international law could you find.

In 2003, this culpable troika sneered, ignored and soiled such international institutions as the United Nations, the rule of law, the legacy of the Nuremberg trials, and a number of conventions, by invading Iraq. The country, weakened and crippled by years of sanctions, leaving its hospital system crushed with bulky lists of dead children (all worthwhile, according to the late former Secretary of State, Madeleine Albright), was apparently a mortal threat to Western civilisation.

The Baathist regime, led by Saddam Hussein, was purportedly armed to the teeth with a doomsday inventory of Weapons of Mass Destruction (WMDs) that he was bound to use at any given moment against freedom loving types in Washington, London and Canberra. (It is true he had previously had such weapons, much of it supplied by Western arms corporations with the blessing of intelligence agencies such as the CIA.) He had, apparently, refused to disarm, obdurate in the face of United Nations weapons inspectors. And he had flirted with those evil representatives of cataclysmic eschatology, al-Qaida, despite being hostile to such millenarian groups. The report card, spottier than ever in the shadow of the attacks of September 11, 2001 on the United States, suggested that he had to go. The results: lusty sectarian violence, a catastrophically devastating, often imbecilic occupation by US-led forces, the seeds of emboldened fundamentalism, the offshoot movements such as Islamic State, and multigenerational trauma.

With another new year beckoning, the Australian National Archives have released approximately 240 cabinet papers from 2003 on the decision-making process behind a number of policy decisions. A few snippets are offered regarding road to war. Cabinet’s National Security Committee had kept an eye on developments in Iraq, though the released materials do little to reveal what, precisely, took place in conversations between Howard and Bush.

In September 2002, one document notes how “cabinet noted an oral report by the prime minister on his discussion with the president of the United States on the American position in relation to efforts by Iraq to secure and maintain weapons of mass destruction.” A fortnight later, the then-foreign minister Alexander Downer, is noted as furnishing cabinet with an “oral report” regarding “developments” regarding the proposed UN Security Council resolution on the Saddam regime’s “possession of, and attempts to secure or maintain, weapons of mass destruction, and on the prospects for passage of the resolution.” That such oral revelations were not accompanied by thick, detailed submissions, is telling about the obedient, inevitable train of thinking afflicting the Howard government. A war, started by Washington, would come, and Canberra would be along for the ride.

By March 2003, Howard was demanding action. He informed members of his cabinet that Bush had issued Saddam with an ultimatum of thuggish import. “Saddam Hussein and his sons,” the US president stated, “must leave Iraq within 48 hours. Their refusal to do so will result in military conflict commenced at a time of our choosing.”

Howard was drunk with intelligence assessments from the United States, including such claims that Iraq had put out feelers for yellowcake in Niger. Couple this with such stretched confections as non-state terrorist actors, hankering for WMD spoils from sponsor states, and the prime minister was swooning. In 2013, his cringeworthy apologia given to the Lowy Institute reflected on the fictitious Niger angle as “unmistakable” in its “strength”. Had it been accurate – a sly way of escaping the prosecutor’s legal brief – and Saddam “left in place, only to provide WMDs to a terrorist group, for use against the US, the Administration would have failed in its most basic responsibility to protect the nation.” When crooks of state are found out, they tend to cite public duty as appropriate justification.

As far as legality for any military intervention outside the formal channels of authorisation of a UN Security Council, Howard was armed with a memorandum signed by a first assistant secretary from the Department of Foreign Affairs and Trade and his equivalent from the Attorney-General’s Department. Fantastically and irresponsibly, the cod ordinary advice suggested that Australian involvement in an invasion would be entirely legal, given the Saddam regime’s recalcitrance in not allegedly complying with previous Security Council resolutions. It seems that the public servants in question, instead of offering a panoramic view about the pitfalls of a dangerous adventure in the Middle East, were merely keen to satisfy the bloodletting urges of their political paymasters.

The cabinet minute from March 18, 2003 showed agreement from the Attorney-General with the spurious reasoning of the first assistant secretaries. It also noted that the Australian Governor-General, Peter Hollingworth, holder of that old office of the British empire as the monarch’s representative, had been consulted. Approval from him, however, was not mandatory.

Cabinet, won over with no evident demurral, and previously buttered up by oral reports, approved the measure to commit Australia to another failed military mission of murderous, bungling incompetence. The United States would receive no resistance in getting its pound of Australian flesh for an illegal enterprise, and the Australian public, many of whom had participated in some of the largest anti-war demonstrations the country had ever seen, would be ignored.

 

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Genocidal Tremors: Taking Israel to the International Court of Justice

Litigating against countries is the stuff of esoteric delight for international lawyers. Such matters become yet more complex when it comes to claims of genocide or broader crimes against humanity. Accusations, however motivated, are always easy to make. Proving them in a court of law is quite another proposition. International law remains a terrain of punctures and potholes, rather than smooth lines and fine paving. Working around those punctures is a skill worthy of prize and praise.

The ongoing flattening, mauling and extirpation of the Gaza Strip by Israel’s armed forces has drawn interest from jurists and litigants. The potholes and punctures, in that sense, seem to be filling up. It’s hard not to see why, when you have such startlingly grotesque admissions as those from Rear Admiral Daniel Hagari, a chief spokesman for the IDF, that “the emphasis is on damage and not on accuracy.”

Then come such background briefs as those from retired Colonel Pnina Sharvit Baruch, former director of the wing celebrated for advising IDF commanders about complying with the rules of war. A dive into the short overview from Baruch makes for grim reading. The aim, not method, is what matters, namely, the destruction of Hamas. “Without achieving this goal, Hamas will succeed in de facto denying Israel the exercise of its sovereignty in the areas adjacent to the border with the Gaza Strip. In light of this significant military advantage, even if many civilians in Gaza are harmed during the attacks, this is not necessarily excessive incidental damage and therefore would not be disproportionate attacks that are illegal.” Mass murder can thereby be excused.

Leonard Rubenstein, a professor of practice at the Johns Hopkins Bloomberg School of Public Health, was sufficiently troubled by such reasoning to suggest that Israel had “asserted a theory of justifiable conduct in war that, contrary to this body of [humanitarian] law, elevates claims of military necessity in achieving the war’s aims over protection of civilians, particularly in a just war.”

In the international community, a number of actions are testing the waters of legality regarding Israel’s novel view of waging what is increasingly looking like a war of ghoulish extermination. In November, the New York Center for Constitutional Rights (CCR) filed a suit on behalf of Palestinian human rights groups, US citizens with relatives in Gaza and Palestinians in Gaza arguing that the Biden administration had been complicit and failed to prevent “the Israeli government’s unfolding genocide”. It notes the language of various Israeli government figures that demonstrate “clear genocidal intentions” while deploying “dehumanizing characterizations of Palestinians, including ‘human animals’.”

That same month, South Africa, Bangladesh, Bolivia, Comoros and Djibouti, according to Karim Khan, the chief prosecutor of the International Criminal Court, expressed the view that an investigation of “the situation in the state of Palestine” should take place. Khan accordingly declared that an investigation into the events in the Gaza Strip and the occupied West Bank from March 2021 was duly expanded to include “the escalation of hostilities and violence since the attacks that took place on October, 2023.” Despite Israel not being a member of the ICC, the prosecutor called “upon all relevant actors to provide full cooperation with my office.”

South Africa has decided to test the validity of Israel’s methods of war in Gaza through the offices of the International Court of Justice, a body of feeble, if acceptable dignity. On December 29, Pretoria filed an application regarding, in the words of the relevant press release, “alleged violations by Israel regarding the Convention on the Prevention and Punishment of the Crime of Genocide […] in relation to Palestinians in the Gaza Strip.” The application makes the claim that “acts and omissions” by the Israeli government “are genocidal in character, as they are committed with the requisite specific intent … to destroy the Palestinians in Gaza as part of the broader Palestinian national, racial and ethnical group.”

It further claims that “the conduct of Israel – through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence – in relation to Palestinians in Gaza, is in violation of the obligations under the Genocide Convention.”

The application instituting proceedings gives more detail to the South African case, noting such alleged genocidal acts as “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction.”

South Africa requests a number of provisional measures in its ICJ application, namely, that Israel immediately suspend military operations in and against Gaza; ensure all its military or irregular units under the state’s control “take no further steps in furtherance of the military operations” aforementioned; “desist from the commission of any and all actions within the scope of Article II” of the Genocide Convention (killing, causing serious bodily or mental harm to the members of the group); intentional infliction upon the group of conditions “calculated to bring about its physical destruction in whole or in part”; and “imposing measures intended to prevent births within the group.”

The response from Israel was hardly one of chastened reflection. Its government rejected “with contempt the blood libel by South Africa in its application to the International Court of Justice (ICJ).” The Israeli Foreign Ministry scorned the South African claim as lacking any “factual and judicial basis and is a despicable and cheap exploitation of the court.” Pretoria was, in effect, “collaborating with a terror group that calls for the destruction of Israel.”

In some ways, South Africa, with its historically thick layering of scar tissue regarding racial hatred, segregation, policing and administrative detention may be better suited than most in understanding the zealots prosecuting the war in Gaza. Far from proving a blood libel, the case may turn out to be something of a bloody revelation.

 

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Amoral Compass: Palantir and its Quest to Remake the World

Finance analysts free of moral scruple can point to Palantir with relish and note that 2023 was a fairly rewarding year for it. The company, which bills itself as a “category-leading software” builder “that empowers organizations to create and govern artificial intelligence”, launched its initial public offering in 2020. But the milky confidence curdled, as with much else with tech assets, leading to the company stock falling by as much as 87% of value. But this is the sort of language that delights the economy boffins no end, a bloodless exercise that ignores what Palantir really does.

The surveillance company initially cut its teeth on agendas related to national security and law enforcement through Gotham. A rather dry summation of its services is offered by Adrew Iliadis and Amelia Acker: “The company supplies information technology solutions for data integration and tracking to police and government agencies, humanitarian organizations, and corporations.”

Founded in 2003 and unimaginatively named after the magical stones in The Lord of the Rings known as “Seeing Stones” or palantíri, its ambition was to remake the national security scape, a true fetishist project envisaging technology as deliverer and saviour. While most of its work remains painfully clandestine, it does let the occasional salivating observer, such as Portugal’s former Secretary of State or European Affairs Bruno Maçães, into its citadel to receive the appropriate indoctrination.

It’s impossible to take any commentary arising from these proselytised sorts seriously, but what follows can be intriguing. “The target coordination cycle: find, track, target, and prosecute,” Maçães writes for Time, reflecting on the technology on show at the company’s London headquarters. “As we enter the algorithmic age, time is compressed. From the moment the algorithms set to work detecting their targets until these targets are prosecuted – a term of art in the field – no more than two or three minutes elapse.” Such commentary takes the edge of the cruelty, the lethality, the sheer destruction of life that such prosecution entails.

While its stable of government clients remain important, the company also sought to further expand its base with Foundry, the commercial version of the software. “Foundry helps businesses make better decisions and solve problems, and Forrester estimated Foundry delivers a 315% return on investment (ROI) for its users,” writes Will Healy, whose commentary is, given his association with Palantir, bound to be cherubically crawling while oddly flat.

This tech beast is also claiming to march to a more moral tune, with Palantir Technologies UK Ltd announcing in April that it had formed a partnership with the Prosecutor General’s Office of Ukraine (OPG) to “enable investigators on the ground and across Europe to share, integrate, and process all key data relating to more than 78,000 registered war crimes.”

The company’s co-founder and chief executive officer, Alexander C. Karp, nails his colours to the mast with a schoolboy’s binary simplicity. “The invasion of Ukraine represents one of the most significant challenges to the global balance of power. To that end, the crimes that are being committed in Ukraine must be prosecuted.”

Having picked the Ukrainian cause as a beneficial one, Palantir revealed that it was “already helping Ukraine militarily, and supporting the resettlement of refugees in the UK, Poland and in Lithuania.” For Karp, “Software is a product of the legal and moral order in which it is created, and plays a role in defending it.”

Such gnomic statements are best kept in the spittoon of history, mere meaningless splutter, but if they are taken seriously, Karp is in trouble. He is one who has admitted with sissy’s glee that the “core mission of our company always was to make the West, especially America, the strongest in the world, the strongest it’s ever been, for the sake of global peace and prosperity.” Typically, such money-minded megalomaniacs tend to confuse personal wealth and a robber baron’s acquisitiveness with the more collective goals of peace and security. Murdering thieves can be most moral, even as they carry out their sordid tasks with silver tongs.

When Google dropped Project Maven, the US Department of Defense program that riled employees within the company, Palantir was happy to offer its services. It did not matter one jot that the project, known in Palantir circles as “Tron”, was designed to train AI to analyse aerial drone footage to enable the identification of objects and human beings (again bloodless, chilling, instrumental). “It’s commonly known that our software is used in an operational context at war,” Karp is reported as saying. “Do you really think a war fighter is going to trust a software company that pulls the plug because something becomes controversial with their life? Currently, when you’re a war fighter your life depends on your software.”

War is merely one context where Palantir dirties the terrain of policy. In 2020, Amnesty International published a report outlining the various human rights risks arising from Palantir’s contracts with the US Department of Homeland Security. Of particular concern were associated products and services stemming from its Homeland Security Investigations (HIS) division of Immigration and Customs Enforcement. Human rights groups such as Mijente, along with a number of investors, have also noted that such contracts enable ICE to prosecute such activities as surveillance, detentions, raids, de facto family separations and deportations.

In 2023, protests by hundreds of UK health workers managed to shut down the central London headquarters of the tech behemoth. The workers in question were protesting the award of a £330 million contract to Palantir by the National Health Service (NHS) England. Many felt particularly riled at the company, given its role in furnishing the Israeli government with such military and surveillance technology, including predictive policing services. The latter are used to analyse social media posts by Palestinians that might reveal threats to public order or praise for “hostile” entities.

As Gaza is being flattened and gradually exterminated by Israeli arms, Palantir remains loyal, even stubbornly so. “We are one of the few companies in the world to stand and announce our support for Israel, which remains steadfast,” the company stated in a letter to shareholders. With a record now well washed in blood, the company deserves a global protest movement that blocks its appeal and encourages a shareholder exodus.

 

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Constitutional Violations: Julian Assange, Privacy and the CIA

As a private citizen, the options for suing an intelligence agency are few and far between. The US Central Intelligence Agency, as with other members of the secret club, pour scorn on such efforts. To a degree, such a dismissive sentiment is understandable: Why sue an agency for its bread-and-butter task, which is surveillance?

This matter has cropped up in the US courts in what has become an international affair, namely, the case of WikiLeaks founder and publisher, Julian Assange. While the US Department of Justice battles to sink its fangs into the Australian national for absurd espionage charges, various offshoots of his case have begun to grow. The issue of CIA sponsored surveillance during his stint in the Ecuadorian embassy in London has been of particular interest, since it violated both general principles of privacy and more specific ones regarding attorney-client privilege. Of particular interest to US Constitution watchers was whether such actions violated the reasonable expectation of privacy protected by the Fourth Amendment.

Four US citizens took issue with such surveillance, which was executed by the Spanish security firm Undercover (UC) Global and its starry-eyed, impressionable director David Morales under instruction from the CIA. Civil rights attorney Margaret Ratner Kunstler and media lawyer Deborah Hrbek, and journalists John Goetz and Charles Glass, took the matter to the US District Court of the Southern District of New York in August last year. They had four targets of litigation: the CIA itself, its former director, Michael R. Pompeo, Morales and his company, UC Global SL.

All four alleged that the US Government had conducted surveillance on them and copied their information during visits to Assange in the embassy, thereby violating the Fourth Amendment. In doing so, the plaintiffs argued they were entitled to money damages and injunctive relief. The government moved to dismiss the complaint as amended.

On December 19, District Judge John G. Koeltl delivered a judgment of much interest, granting, in part, the US government’s motion to dismiss but denying other parts of it. Before turning to the relevant features of Koeltl’s reasons, various observations made in the case bear repeating. The judge notes, for instance, Pompeo’s April 2017 speech, in which he “‘pledged that his office would embark upon a ‘long term’ campaign against WikiLeaks.’” He is cognisant of the plaintiffs’ claims “Morales was recruited to conduct surveillance on Assange and his visitors on behalf of the CIA and that this recruitment occurred at a January 2017 private security industry convention at the Las Vegas Sands Hotel in Las Vegas, Nevada.”

From that meeting, it is claimed that “Morales created an operations unit, improved UC Global’s systems, and set up live streaming from the United States so that surveillance could be accessed instantly by the CIA.” The data gathered from UC Global “was either personally delivered to Las Vegas; Washington, D.C.; and New York City by Morales (who travelled to these locations more than sixty times in the three years following the Las Vegas convention) or placed on a server that provided external access to the CIA.”

Koeltl preferred to avoid deciding on the claims that Morales and UC Global were, in fact, “acting as agents of Pompeo and the CIA.” Such matters were questions of fact “that cannot be decided on a motion to dismiss.”

A vital issue in the case was whether the plaintiffs had standing to sue the CIA in the first place. Citing the case of ACLU v Clapper, which involved a challenge to the National Security Agency’s bulk telephone metadata collection program, Koeltl accepted that they did. In doing so, he rejected a similar argument made by the government in Clapper – that the injuries alleged were simply “too speculative and generalized” and that the information gathered via surveillance would necessarily even be used against them. “In this case, the plaintiffs need not allege, as the Government argues, that the Government will imminently use their information collected at the Ecuadorean Embassy in London.” If the search of the conversations and electronic devices along with the seizure of the contents of the electronic devices “were unlawful, the plaintiffs have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by favorable ruling.”

Less satisfactory for the plaintiffs was the finding they had no reasonable expectation of privacy regarding their conversations with the publisher given that “they knew Assange was surveilled even before the CIA’s alleged involvement.” The judge thought it significant that they did “not allege that they would not have met Assange had they known their conversations would be surveilled.” Additionally, it “would not be recognized as reasonable by society” to have expected conversations held with Assange at the embassy in London to be protected, given such societal acceptance of, for instance video surveillance in government buildings.

This reasoning is faulty, given that the visits by the four plaintiffs to the embassy did not take place with their knowledge of the operation being conducted by UC Global with CIA blessing. In a general sense, anyone visiting the embassy could not help but suspect that Assange might be the object of surveillance, but to suggest something akin to a waiver of privacy rights on the part of attorneys and journalists aiding a persecuted publisher is an odd turn.

The US Government also succeeded on the point that the plaintiffs had no reasonable expectation to privacy regarding their passports or their devices they voluntarily left at the Embassy reception desk. In doing so, they “assumed the risk that the information may be conveyed to the Government.” Those visiting embassies must, it would seem, be perennially on guard.

That said, the plaintiffs convinced the judge that they had “sufficient allegations that the CIA and Pompeo, through Morales and UC Global, violated their reasonable expectation to privacy in the contents of their electronic devices.” The government even went so far as to concede that point.

Unfortunately for the plaintiffs, the biggest fish was let off the hook. The plaintiffs had attempted to use the 1971 US Supreme Court case of Bivens to argue that the former CIA director be held accountable and liable for violating constitutional rights. Koeltl thought the effort to extend the application of Bivens inappropriate in terms of the high standing nature of the defendant and the context. “As a presidential appointee confirmed by Congress […] Defendant Pompeo is in a different category of defendant from a law enforcement agent of the Federal Bureau of Narcotics.” More’s the pity.

Leaving aside some of the more questionable turns of reasoning in Koeltl’s judgment, public interest litigants and activists can take heart from the prospect that civil trials against the CIA for violations of the US Constitution are no longer unrealistic. “We are thrilled,” declared Richard Roth, the plaintiffs’ attorney, “that the court rejected the CIA’s efforts to silence the plaintiffs, who merely seek to expose the CIA’s attempt to carry out Pompeo’s vendetta against WikiLeaks.” The appeals process, however, is bound to be tested.

 

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