Julian Assange and US War Crimes — It’s a Crime To Hide a Crime

by Mary W Maxwell, LLB

Twice this year in Concord I was invited to attend rallies for Julian Assange. I was happy to accept, so I could both wear the Australian colors and wear my freedom-of-the press colors. I have to say that I do not yet know the Wikileaks man very well. See my earlier Gumshoe article “Julian Assange Is Good for America” — thanking him for outing the Gitmo horrors.

I am also in a state of ignorance about Chelsea Manning’s actions in regard to Wikileaks, and I am unlikely to overcome that, as other research keeps me too busy to pursue it. (Manning, no longer a member of the US armed forces, is currently imprisoned for contempt of a grand jury’s request for information that would harm Assange’s case. Her fines are mounting up, at $1,000 per day.)

Nevertheless, I feel I must say something about “law that prevents revelation of government crime,” as it would affect Assange and probably myself also. And I hereby chastise the Australian government for not “bringing the boy home” by diplomatic means.” (Note: I am a dual citizen of the US and Australia, but this article is only about US law.)

Federal Laws Related to Espionage and Censorship

The codified version of all still-extant laws passed by Congress since 1789 is called the United States Code –the USC.  Its Title 18 is the criminal code. Sections 1-2725 are devoted to crimes, and sections 3001-3772 specify criminal procedure. The crimes of Espionage and Censorship occupy sections 18 USC 792 to 18 USC 798.

Let’s start by looking at 18 USC 798. It plainly states:

(a)Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States….  any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the US or any foreign government; or

(3) concerning the communication intelligence activities of the US or any foreign government;….

Shall be fined under this title or imprisoned not more than ten years, or both….

(c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives ….[Well, isn’t that nice!]

(d) (1)Any person convicted of a violation of this section shall forfeit …

(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and

(B) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.[Seems to me an extreme provision.]

So far, all is reasonable. Any nation is entitled to punish a person that publishes classified information — at least assuming that the original motive for classifying it was to protect the nation’s ability to defend itself, NOT to hide crimes by government.

It looks to me that Assange did violate (a) 3., although I don’t see on what basis the jurisdiction of US laws reaches to foreigners abroad.

Since the content of what he published on Wikileaks (which he founded in 2006), include war crimes by the US, let’s now go to another part of the USC, one of my personal faves.  My three faves are: war crimes, genocide, and torture.   As far as I know, those laws are never enforced — I mean, when’s the last time you heard of Jay Bybee and John Yoo being indicted for writing the 2002 Torture memo? Still, they could be, at any moment.

War Crimes

Readers of GumshoeNews know that I lash out at “international law.” It almost makes me choke to hear people discuss it, because it is so misleading. There is no such thing a law that will be enforced on a global scale, as there is no enforcer. Show me a case of the Geneva Conventions coming down to bear on, say, Tony Blair.

However, Americans are not protected by this lack of any effective international law, as Congress, in its wisdom, passed domestic law against domestic persons who commit war crimes. And the relevant president did not veto it. That happened in 1996, so it must have been Clinton.  I’ll assume that his minders told him not to worry as this War Crime Act would never get enforced.

(Note: 36 men were court-martialed in connection with the My Lai massacre in Vietnam. Only Lt William Calley was convicted, and his sentence was reduced to 3.5 years. But that was in 1970.)

Here is that blessed War Crimes Act, codified at 18 USC 2441:

(a)Offense. Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b)Circumstances. The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the US  [I am abbreviating “United States” to “US” to save ink.]

(c)Definition.—As used in this section the term “war crime” means any conduct—(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the US is a party; (2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, … signed 18 October 1907; (3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) ….

(d)Common Article 3 Violations.—

(1)Prohibited conduct.—In subsection (c)(3), the term “grave breach of common Article 3” means….:

(A)Torture.— The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering … upon another person …  for the purpose of obtaining information or a confession, punishment, intimidation, [etc]. [Hello, Guantanamo?]

(B)Cruel or inhuman treatment.— The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering ….

(C)Performing biological experiments.— The act of a person who subjects …  one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of [a person] such person … [All MK-ULtra stuff?]

(D)Murder.—The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, ….

(E)Mutilation or maiming.—  [Etc.]

(2)Definitions.

(D)the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—

(i) a substantial risk of death; (ii) extreme physical pain; (iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; …

As to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.[As you see, the USC is constantly updated to incorporate amendments.]

(5)Definition of grave breaches.—

The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article.

Now Back to Wikileaks and Prisoner Assange

I will limit this to one act of war crime committed by Americans in Iraq. Here is a clip from Reuters’ own page on the day, 12 years ago:

“LONDON. An Iraqi photographer and driver working for Reuters in Iraq were killed in Baghdad on Thursday in what witnesses said was a U.S. helicopter attack but which the military described as a firefight with insurgents.

“The Iraqi photographer and driver were killed in eastern Baghdad on July 12, 2007 in what police said was American military action and which witnesses described as a helicopter attack. Iraqi police blamed American military action for the deaths.

The U.S. military said the pair died after a clash between its troops and insurgents. The incident was under investigation, it said in a statement. U.S. and Iraqi forces engaged “a hostile force” after coming under fire and attack aircraft were called in.

OK, so there we have an action for which some US personnel could be charged under 18 USC 2441, right?  And by the way, you would think American journalists and photographers would raise a stink about the killing of their counterparts in Iraq.

To charge anyone would mean evidence would have to be presented, but the US could presumably get away with saying it was an accident or a defensive action, as they said here.  An article by Bumiller in the New York Times of April 5, 2010, says the U.S. military withheld key information on the grounds that it was classified. They refused to release a video taken from one of the gunships that captured the complete sequence and radio communication during the shootings. “On April 5, 2010, part of the military video was released on the website WikiLeaks, which said it acquired the video from military whistle-blowers and viewed it after breaking the encryption code.”

Private Bradley Manning had furnished the goods to Assange.

I quote Amy Goodman at Democracy Now, cited by presscontacts.com in January 2017, entitled “The Long Ordeal of Chelsea Manning:

“The video, which WikiLeaks called ‘Collateral Murder,’ documented in graphic, grainy black-and-white detail a helicopter gunship attack on July 12, 2007. The helicopter opens fire with machine guns on a group of men, including Reuters news agency photographer Namir Noor-Eldeen and his driver, Saeed Chmagh. Most of the men are killed instantly. Noor-Eldeen runs away, and the crosshairs follow him, shooting nonstop, until he falls dead.

“The radio transmission embedded in the video records the soldiers’ voices: ‘All right, hahaha, I hit ’em.’ And then: ‘Yeah, we got one guy crawling around down there. Chmagh, seriously wounded, can be seen dragging himself away from the other bodies.

“A voice in the helicopter, seeking a rationale to shoot, says: ‘Come on, buddy. All you gotta do is pick up a weapon. … If we see a weapon, we’re gonna engage.’ A van pulls up, and several men, clearly unarmed, come out and lift Chmagh to carry him to medical care. The soldiers on the Apache seek and receive permission to ‘engage’ the van and opened fire, tearing apart the front of the vehicle and killing the men.”

One Man Has Been Indicted So Far

Murder has no statute of limitations. I would guess that the killers of the two Reuters men could be charged. This would open a can of worms, would it not? Personally, I think we should open that can of worms.  Americans are shielded from knowledge of our brutality, but people around the world are quite aware of it. They assume that Yanks think that foreign life is cheap.

Still, at the moment, Julian Assange is the only guy in trouble. Six years ago he broke bail — he was in the UK being threatened with extradition to Sweden for “sexual offenses.” He scooted into the Ecuadorean Embassy and asked for asylum. The Ecuadoreans gave him room and board for years, then they chickened out and so the British Police grabbed him this year.

Assange was charged with having jumped bail but the Swedes have since dropped the sex charges. A London judge, on September 13th, 2019, cleared him of that bail-jumping crime but ordered that he stay in Belmarsh Prison until another aspect of his case comes up in 2020. She thinks he is a flight risk so did not offer bail. His defense attorney did not fight this.

My Recommendation

The Australian High Commissioner to UK, George Brandis — ahem —  should arrange with Mother England to get the fellow onto a flight to Sydney, via Singapore. Having him criminalized by the US who committed the crimes in the first place is sickening.

Mr Brandis, Your Very Excellent Excellency [I’m kidding] you may use the excuse of “the lad is not well,” if needed, to save face. Just get him out of Belmarsh.  Send him home NOW.  (By the way, Dee McLachlan has the goods on you regarding the Bella Vista incident in 2015. And don’t think she won’t act.)

Cleary, the persecution of Assange is part of the creation of a persecutory atmosphere everywhere today.  We must object to those shenanigans, in addition to the above shenanigans.