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Takedown Senders Must Consider Fair Use, Ninth Circuit Rules

By Parker Higgins and Daniel Nazer | EFF | September 15, 2015

A federal appeals court sided with EFF yesterday on several of the major questions at issue in the long-running Lenz v. Universal copyright case. Lenz – sometimes referred to as the “Dancing Baby” case because it centers on a 29-second home video of a toddler dancing with a song by the musician Prince in the background – has long been recognized as a test of the rights enjoyed by users, and the obligations facing people who want to take down online speech.

The big takeaway of yesterday’s opinion is, yes, that copyright holders must consider fair use before sending a takedown notice. But just as important is the basis of that conclusion: again today we have a federal court making it clear that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute.

For example, the court states explicitly that “Fair use is not just excused by the law, it is wholly authorized by the law.” However well attested that principle is in the statute and in case law, it is still sometimes considered controversial. Hopefully this decision puts that debate to rest: whether the copyright holder grants permission or not, a fair use is an authorized use.

The court goes on to specify an important consequence of that fact: since fair use is authorized by the law, people enjoying their right to fair use are not infringing copyright. That’s important because Universal had argued that fair use has to be considered an “affirmative defense” of otherwise unlawful conduct. The panel of judges dismantled that idea:

Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Given that 17 U.S.C. § 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer[.]

One reason this affirmation of fair use is so crucial is that it comes at a time when fair users should be enjoying new opportunities from unprecedented media tools and distribution options, but instead face similarly groundbreaking challenges and pushback from copyright holders. An interview with the video remix artist Elisa Kriesinger published just yesterday brings some of those points into focus: “Every few weeks, you are constantly having to defend your work … You thought you were clear two weeks ago, and now you’ve got to defend it again because someone else is saying that they own a portion of your work.”

In that interview, Kriesinger refers also to problems caused of algorithmic copyright enforcement, like YouTube’s Content ID system. The court addressed these systems in its opinion (as dicta, which means it’s expressly non-binding). Specifically, it cites a brief from the Organization for Transformative Works and Public Knowledge, which in turn refer to a joint statement of Fair Use Principles for User Generated Video Content that EFF first endorsed in 2007.

Some quick background on those principles: they were written as a response to a set of guidelines that did not consider fair use, put forward by a consortium of studios. It’s a testament to how far the national conversation around fair use has evolved, that a court should cite to a set of principles for protecting that essential right—and that, in a statement released after yesterday’s decision, MPAA should commend it.

For fair users, yesterday’s decision has another heartening element—the court has appropriately defined the damages available to targets of takedown abuse as broader than “actual monetary loss.” In practical terms, many people who are using their fair use rights online can’t easily demonstrate precise monetary costs of an improper takedown, but it can take a toll in terms of time and energy getting it restored and holding the senders accountable. It’s good to see a court recognize that idea. Accepting that a broad range of harm can and should make it easier for service providers and the public to hold accountable those that would abuse the DMCA.

Yesterday’s decision is not all good news, unfortunately. Applying an older Ninth Circuit decision called Rossi v MPAA, the court suggested that, although copyright owners must consider fair use, they only need to form a subjective good faith belief that the work is not authorized by law, even if this belief is objectively unreasonable on either the law or facts at issue. Those that would use the law to silence online speech should, at the very least, be required to act reasonably. Otherwise the law perversely rewards those who fail to properly educate themselves about fair use before sending a takedown.

It took eight years of litigation to get to this point. That’s right: it took eight years to establish that record labels like Universal must consider whether your speech is legal before they try to get it taken off the Internet. We are glad to finally have this result and we hope that this ruling will lead to less takedown abuse in the future.

September 15, 2015 Posted by | Civil Liberties, Video | , | Leave a comment

Fears that Saudi Arabia is set to ‘crucify’ juvenile prisoner

Reprieve – September 15, 2015

Saudi Arabia has dismissed the final appeal of a prisoner sentenced to death as a child, leading to fears his execution could take place in a matter of days.

Ali Mohammed al-Nimr was arrested when he was 17 and initially held at a juvenile offenders facility. There is evidence that he was tortured and forced to sign a document amounting to a confession, which then formed the basis of the case against him.

Last week, his family found out that his final appeal had been heard in secret, without Ali’s knowledge, and dismissed. This means that there are now no remaining legal hurdles before he faces his sentence of ‘death by crucifixion,’ originally handed down on 27 May 2014.

Ali was arrested on 14 February 2012 in the wake of anti-Government protests, and has been accused by the authorities of participation in an illegal demonstration and firearms offences – no evidence has been produced for the latter charge, which he and his family strongly deny. The opaque nature of the Specialised Criminal Court (SCC) through which Ali was convicted makes it hard to determine the detail of the charges against him.

The Government appears to have rested its case against him in large part on his relation to Sheikh Nimr al-Nimr, a prominent religious leader in the Kingdom and human rights activist.

The Saudi Government has been widely criticised for its heavy-handed response against protesters and human rights activists since Arab Spring demonstrations began – including a death sentence for Sheikh Nimr. Ali is one of a number of people – thought to possibly include other juveniles – who has been sentenced to death following involvement in those protests. In January 2015, prominent Saudi blogger Raif Al-Badawi received the first of 1,000 lashes as part of his sentence for his statements critical of the Saudi regime in 2012.

The Saudi Government has carried out executions at a high rate since the coming to power of King Salman in January 2015, surpassing 100 for the year so far.

Commenting, Maya Foa, Director of the death penalty team at legal charity Reprieve said: “No one should have to go through the ordeal Ali has suffered – torture, forced ‘confession,’ and an unfair, secret trial process, resulting in a sentence of death by ‘crucifixion.’ But worse still, Ali was a vulnerable child when he was arrested and this ordeal began. His execution – based apparently on the authorities’ dislike for his uncle, and his involvement in anti-government protests – would violate international law and the most basic standards of decency. It must be stopped.”

September 15, 2015 Posted by | Civil Liberties, Subjugation - Torture | , | Leave a comment

‘Dozens of Egyptian dissidents died in prison in August’

Press TV – September 13, 2015

Dozens of dissidents have died across prisons in Egypt in the month of August alone, according to a non-governmental organization.

The Arab African Center for Freedoms and Human Rights documented deaths of 42 detainees.

According to the Cairo-based NGO, the captives mainly died due to medical negligence on the part of Egyptian authorities.

Human rights activists in the Egyptian capital have repeatedly said that many of those who die behind bars are in very critical condition due to torture upon arrest by Egyptian authorities.

Nearly 300 political prisoners have died in Egyptian detention facilities since 2013, according to activists.

The current military-backed government has harshly cracked down on dissent since the downfall of former President Mohamed Morsi in a military coup in July 2013.

Large numbers of supporters of the Muslim Brotherhood have been jailed since the rise of former military commander and current President Abdel-Fattah el-Sisi.

September 14, 2015 Posted by | Civil Liberties, Subjugation - Torture | , | Leave a comment

Benign State Violence vs. Barbaric Terrorism

By Matt Peppe | Just the Facts | September 12, 2015

Seven months ago, UK Prime Minister David Cameron lamented the “sickening murder” of Jordanian pilot Moaz al-Kaseasbeh by the Islamic State of Iraq and Syria (ISIS). President Barack Obama also decried the “viciousness and barbarity” of the act. In his home country, al-Kaseasbeh was remembered as a “hero” and a “martyr” by government officials. Obama even declared his murder demonstrated ISIS’s “bankrupt” ideology. The killing was seen by the Western coalition and allied Arab monarchies fighting ISIS as a symbol of the evilness of their enemies, and by contrast the righteousness of their own cause.

The act that precipitated such a strong outpouring was the purported execution of the 26-year-old al-Kaseasbeh. He was burned alive inside a cage after several months in captivity. As part of ISIS’s propaganda campaign, they posted the video on Youtube. The authenticity of the video has since been questioned, but there is no doubt that regardless of the method used, he was indeed killed.

Al-Kaseasbeh was not an innocent civilian. In fact, he was a pilot in the Royal Jordanian Air Force who was bombing territory controlled by ISIS in an F-16 fighter jet. That is to say, he was an active combatant in military hostilities. His combatant status would be equivalent to an ISIS pilot (if they had an Air Force) apprehended after bombing New York City or London. Though it was reported in the British newspaper The Telegraph that al-Kaseasbeh was “kidnapped,” a military combatant engaged in armed conflict on the battlefield cannot be kidnapped. He was captured.

According to the Geneva Conventions, Prisoners of War enjoy protected status that guarantees their humane treatment and eventual release at the end of hostilities. “POWs cannot be prosecuted for taking a direct part in hostilities. Their detention is not a form of punishment, but only aims to prevent further participation in the conflict. They must be released and repatriated without delay after the end of hostilities,” writes the International Committee of the Red Cross.

ISIS would have no legal grounds to kill al-Kaseasbeh, but it was cynical and sanctimonious for the Western coalition to react with such outrage when he was killed. Those same countries have embraced and celebrated summary assassinations and executions on a scale far more massive than anything ISIS could ever be capable of.

Several weeks ago, Cameron ordered the assassination of two British citizens in Syria alleged to be ISIS militants.

“The strike against British citizen Reyaad Khan, the ‘target of the strike,’ was committed without approval from Parliament. British citizen Ruhul Amin, who was killed in the strike, was deemed an ‘associate’ worthy of death,” writes Kevin Gosztola in Shadowproof.

The British government has not declared war on Syria and has not released any legal justification for its actions. Naturally, any legal documentation they did produce would be merely psuedo-legal cover that would never withstand real judicial scrutiny.

Cameron’s actions in ordering the murder of his own citizens follows the well-treaded path of Obama, whose large-scale drone program in as many as seven countries (none of which the US Congress has declared war on) have killed more than 2,500 people in six years. The President has quipped that he is “really good at killing people.”

By any measure, the drone assassination program has been wildly reckless and ineffective. One study determined that missile strikes from unmanned drones, launched by remote-control jockeys in air-controlled trailers in the American desert, kill 28 unknown people for every intended target. In Pakistan, a study revealed that only 4% of those killed have been identified as members of al Qaeda.

Among the victims have been 12 people on their way to a wedding in Yemen, and a 13-year-old boy who said that he lived in constant fear of “death machines” that had already killed his father and brother before taking his own life.

“A lot of the kids in this area wake up from sleeping because of nightmares from then and some now have mental problems. They turned our area into hell and continuous horror, day and night, we even dream of them in our sleep,” the now-deceased boy, Mohammed Tuaiman, told The Guardian.

Before Cameron did so, Obama also targeted citizens of his own country for assassination without trial. The most well known case is of Anwar al-Awlaki, killed by a drone strike in 2011. The government claimed he was operationally active in al-Qaeda, but this was never tested in court.

“It is likely the real reason Anwar al-Awlaki was killed is that he was seen as a radicalizer whose ideological activities were capable of driving Western Muslims to terrorist violence,” writes Arun Kundnani in The Muslims Are Coming!.

In other words, the Obama administration decided his speech was not protected by the 1st amendment to the US Constitution, and rather than being obligated to test this theory in court they unilaterally claimed the right to assassinate him, the way King John of England would have been able to order the execution of one of his subjects before signing the Magna Carta 800 years ago.

Three weeks later, al-Awlaki’s 16-year-old son was killed in a drone strike. An Obama adviser justified the strike by saying he should have “had a more responsible father.”

Writing on his blog, former British security services officer Craig Murray claims that in light of the decision 20 years ago by the European Court of Human Rights that targeted assassinations when an attack was no imminent were illegal, the British government cannot claim its drone strike in Syria “is anything other than murder.”

“For the government to claim the right to kill British people through sci-fi execution, based on highly unreliable secret intelligence and a secret declaration of legality, is so shocking I find it difficult to believe it is happening even as I type the words. Are we so cowed as to accept this?” Murray writes.

So what makes ISIS’s killing supposedly morally outrageous compared to the US and British drone strikes?

Was ISIS’s killing less morally justified? Al-Kaseasbeh was a combatant who had been dropping bombs on the people who eventually killed him. That much is beyond dispute. The US and UK kill people through drone strikes merely for being suspected militants who might one day seek to attack those countries.

Were ISIS’s methods less humane? Certainly burning a human being alive is sadistic and cruel. But is it any less so to incinerate a human being by a Hellfire missile? Former drone operator Brandon Bryant told NBC News that he saw his victim “running forward, he’s missing his right leg… And I watch this guy bleed out and, I mean, the blood is hot.” Is a drone strike less cruel because the operator is thousands of miles away from the bloodshed and watching on a screen rather than in person?

Were ISIS’s actions terrorism while the US/UK actions were not? As the late Mohammed Tuaiman attested, he and his neighbors were terrified by the omnipresence of the “death machines” that could at any second of the day blow him to pieces without warning or the possibility of escape. Were the people in ISIS controlled territory as terrorized as Tuaiman by the burning of the Jordanian pilot, who was specifically targeted because he had been caught after bombing the same people who now held him captive? Surely they were not more terrorized, though perhaps they might have been equally so.

It would by hypocritical to justify one form of extrajudicial killing while demonizing another. Yet that is exactly what happens when one form of violence is undertaken by a state and another is not. The New York Times is indicative of broader public opinion when it decries the “fanatical vision” of ISIS that has “shocked and terrified the peoples of Iraq and Syria,” while accepting Obama’s rationalizations of deaths via drone strikes as collateral damage, maintaining only that he should “provide a fuller accounting” to enable an “informed debate.”

The apologies for state violence enable the shredding of the rule of law as a method of accountability for those in power, while other states take advantage of technical advances to proliferate their own sci-fi violence against their own citizens and others.

“Pakistan is the latest member of a growing technological club of nations: those who have successfully weaponized drones,” writes Spencer Ackerman in The Guardian. “In addition to the US, UK and Israel, a recent New America Foundation report highlighted credible accounts that Iran, South Africa, France, China and Somalia possess armed drones, as do the terrorist groups [sic] Hamas and Hezbollah. Russia says it is working on its own model.”

One day in the not too distant future, the skies across the world may be full of drones from every country dispensing justice from Miami to Mumbai via Hellfire Missiles, relegating the rule of law and its method of trial by jury to the ash heap of history. And it will not be because of terrorist groups like ISIS that governments and the media are so forceful to condemn, but because of governments themselves and their lapdogs in the media who refuse to apply the same standards in judging violence to states that have their own Air Forces.

September 13, 2015 Posted by | Civil Liberties, Progressive Hypocrite, Subjugation - Torture, War Crimes | , , , , , , , | Leave a comment

Cameron Calls UK Labour Party With New Leader ‘Threat to National Security’

Sputnik – 13.09.2015

LONDON — The Labour party, which elected Jeremy Corbyn its new leader on Saturday, has become a threat to the United Kingdom’s national and economic security, British Prime Minister David Cameron said Sunday.

“The Labour Party is now a threat to our national security, our economic security and your family’s security,” Cameron wrote in his Twitter account.

Corbyn has been widely referred to as one of the most “rebellious” members of UK parliament, as he had opposed Britain’s participation in the Iraq war, and spoke against the renewal of the British Trident nuclear deterrent infrastructure.

Also on Saturday, UK Defense Secretary Michael Fallon also said that Corbyn’s triumph will negatively affect the lives of ordinary Britons.

The Conservative party fears that Corbyn would breach a consensus between the two major British parties on major issues, such as nuclear weapons, taxation and others.

Corbyn won the UK Labour Party’s leadership race on Saturday obtaining some 59.5 percent of votes in the first round.

September 13, 2015 Posted by | Civil Liberties, Full Spectrum Dominance, Militarism | , , , | Leave a comment

US War Theories Target Dissenters

By Todd E. Pierce | Consortium News | September 12, 2015

When the U.S. Department of Defense published a new Law of War Manual (LOW) this past summer, editorialists at the New York Times sat up and took notice. Their concern was that the manual stated that journalists could be deemed “unprivileged belligerents.” The editorial explained that as a legal term “that applies to fighters that are afforded fewer protections than the declared combatants in a war.” In fact, it is far more insidious than that innocuous description.

Here is the manual’s definition: “‘Unlawful combatants’ or ‘unprivileged belligerents’ are persons who, by engaging in hostilities, have incurred one or more of the corresponding liabilities of combatant status (e.g., being made the object of attack and subject to detention), but who are not entitled to any of the distinct privileges of combatant status (e.g., combatant immunity and POW status).”

The key phrase here is “being made the object of attack.” For slow-witted New York Times editorialists, that means journalists can be killed as can any enemy soldier in wartime. “Subject to detention” means a journalist deemed an unprivileged belligerent will be put into military detention if captured. As with any enemy belligerent, however, if “capture is not feasible,” they would be killed if possible, by drone perhaps if in a foreign country.

Currently, most U.S. captives deemed “unprivileged belligerents” are imprisoned in Guantanamo although some may be held in Afghanistan. It must be noted that the United States deems as an “unprivileged belligerent” anyone they target for capture or choose to kill.

That the New York Times’ concern only arose with publication of the new LOW manual suggests they may have been in a deep sleep since 9/11 as the Department of Defense (DOD) has openly worked to impose limitations on information sharing and news gathering since that event gave them a pretext. It is now a well-established pattern of the U.S. government to suppress rights guaranteed by the First Amendment whenever they can get by with it, as was seen with the New York Times own James Risen.

But the New York Times colluded with the CIA in censoring Risen’s reporting. Furthermore, they seemed to have ignored the U.S. government’s momentous argument of the unlimited power of the President to target journalists and activists for “expressive activities,” as the Department of Justice stated in the case of Hedges v. Obama, as described below.

It has frequently been noted there’s been an ongoing “war” against journalists since 9/11. The new DOD Law of War manual makes that official and potentially takes it to the highest level of conflict. While expressing concern, the Times’ editorialist does not seem to realize or care how ominous it is that the DOD now openly declares that journalists may be deemed “unprivileged belligerents,” unlawful combatants, as the DOD manual provides, instead of hiding the fact in coded language as done since 2001. Inherent to those classifications is that they represent the “enemy” and can be killed by U.S. officials.

That will come as no surprise to those acquainted with the foreign journalists who have been targeted and killed by drones in places such as Pakistan. Nor will it surprise Sami al-Hajj, the Al Jazeera journalist who was held in Guantanamo for years. But now it is clear that the same fate could be in store for U.S. journalists.

That coded language is embedded in the claim by Military Commissions prosecutors and the Justice Department that there is a “U.S. domestic common law of war.” What they claim is entirely based upon martial law orders of the Civil War and the military’s orders to remove Japanese-Americans from the their homes on the West Coast in World War II. All the cases they rely on for a “domestic law of war” today were judicially condemned during or almost immediately after the wars in which they were a part of.

U.S. Domestic Common Law of War

U.S. Military Commissions Chief Prosecutor Brig. General Mark Martins and his staff invented what they call the “U.S. domestic common law of war” in filings to the D.C. Circuit Court of Appeals. That invention consists only of the martial law precedents of the U.S. Civil War and the removal of the Japanese-Americans from the West Coast at the direction of General DeWitt. Both were later seen as examples of military despotism.

The American people have been inured by a deliberate effort of the U.S. military to accept invocation of the law of war as a talisman to permit any act by officials which would have been known as illegal before 9/11. But as the manual states: “Although the law of war is generally viewed as ‘prohibitive law,’ in some respects, especially in the context of domestic law, the law of war may be viewed as permissive or even as a source of authority. For example, the principle of military necessity in the customary law of war may be viewed as justifying or permitting certain acts.” (Emphasis added.)

“Military necessity” was the law of war basis for removal of the Japanese-Americans. Military necessity though indisputably a part of the law of war is a totalitarian precept when applied to a civilian population.

The LOW manual explains the object of war by quoting George H. Aldrich, Deputy Legal Adviser to the U.S. Department of State during the Vietnam War. He wrote of “a general acceptance of the view that modern war is aimed not merely at the enemy’s military forces but at the enemy’s willingness and ability to pursue its war aims. . . . In Viet-Nam political, rather than military, objectives were even more dominant. Both sides had as their goal not the destruction of the other’s military forces but the destruction of the will to continue the struggle.”

The “destruction of the will” of the adversary is always the object of war, according to Clausewitz and adopted by the U.S. military. But this has a totalitarian element to it; the adversary’s reciprocal object is to destroy our will. Consequently, “our” will must be protected by suppressing any dissent which could harm morale and the population’s willingness to “continue the struggle.”

That was the foundational belief underlying martial law during the Civil War. The Constitution was an obstacle again to suppressing dissent to a degree after the Civil War, but with the invention of a U.S. domestic common law of war and legalistic word play, this obstacle has once again been removed as the Justice Department argued in Hedges v. Obama.

The claim of being at war with internal and external enemies is always made by totalitarian states to justify their suppression of speech and a free press through repression. For a brief period in U.S. history, the Civil War, the U.S. military adopted military repression through martial law to suppress any dissent to its war practices.

Martial law was declared throughout the Union States, the North, on Aug. 8, 1862, by Secretary of War Edwin M. Stanton, at the request of President Abraham Lincoln. Orders were published to “arrest and imprison” any persons “discouraging volunteer enlistments” or “giving aid and comfort to the enemy” or for “any other disloyal practice.” A military commission would try the prisoners, and a second order “suspended” the writ of habeas corpus in their cases.

Martial law was more formally declared on Sept. 24, 1862, by President Lincoln himself in addition to suspending the writ of habeas corpus. Lieber’s Code was then prepared as the order giving effect to martial law. Contrary to how it is presented by the U.S. Army and credulous human rights commentators, Lieber’s Code was primarily a harsh martial law order with Prussian militarist law of war concepts introduced to the U.S. to criminalize any expressions of dissent as “war treason.”

Thus, Col. William Winthrop explained that among the greater number of individuals who were brought to trial before the military commissions during the Civil War, the offenses included “hostile or disloyal acts, or publications or declarations calculated to excite opposition to the federal government or sympathy with the enemy, etc.”

Whiting’s Guidance

Solicitor of the Department of War during the Civil War, William Whiting, gave legal guidance to the Union Commanders for enforcement of martial law. The “guidebook” was his own War Powers of the President. This book could have been used by any militaristic and totalitarian regime, which in fact it was as it was derived from authoritarian principles of martial law from Prussia. Those authoritarian principles remained in force under Prussia’s successor state, Germany, during two world wars, and were the legal basis of the infamous People’s Court which tried “war treason” cases; cases of “disloyal” expressive acts in most cases without more.

The guidance of Whiting was: “No person in loyal States can rightfully be captured or detained unless he has engaged, or there is reasonable cause to believe he intends to engage, in acts of hostility to the United States — that is to say, in acts which may tend to impede or embarrass the United States in such military proceedings as the commander-in-chief may see fit to institute.” This is the same argument that the U.S. government made in Hedges v. Obama.

What constituted an act of hostility? Whiting defines that to include a sentiment of hostility to the government “to undermine confidence in its capacity or its integrity, to diminish, demoralize . . . its armies, to break down confidence in those who are entrusted with its military operations in the field.”

An example of how martial law was to be carried out was in an order to a subordinate commander by the Army Department of the Pacific Commander in response to complaints from the Citizens of Solano County, California, of disloyal “utterances” they were hearing from fellow citizens.

The order read: “The department commander desires you to let the people understand generally that the order of the President suspending the writ of habeas corpus and directing the arrest of all persons guilty of disloyal practices will be rigidly enforced. . . . Practices injurious to the government or offensive to the loyal sentiment of the people will under no circumstances be permitted.”

Immediately after the Civil War, when it was freshest in their minds, the Supreme Court had this to say about martial law in Ex Parte Milligan: “What is ordinarily called martial law is no law at all. Wellington, in one of his despatches from Portugal, in 1810, in his speech on the Ceylon affair, so describes it. Let us call the thing by its right name; it is not martial law, but martial rule. And when we speak of it, let us speak of it as abolishing all law, and substituting the will of the military commander, and we shall give a true idea of the thing, and be able to reason about it with a clear sense of what we are doing.”

Martial law is a sub-part of the Law of War and since it is for application to a domestic population as with the Northern States during the Civil War by the Union Army, it is “moderated” ordinarily from the even harsher provisions of the Law of War which are now invoked in the Law of War manual. Yet precepts of both are being introduced domestically with Section 1021 of the 2012 National Defense Authorization Act and domestically and globally by the “U.S. domestic common law of war” precedents trumpeted by Chief Military Commissions Prosecutor, Brig. Gen. Mark Martins.

It must be noted that this is not to compare the Union unfavorably with the Confederacy. The Confederacy had the highest form of martial law: slavery. But the Defense Department only uses one legal precedent from the Confederacy today, which is “outlawry.”

Lieber’s Code addressed “outlawry” in Art. 148, which provided, in pertinent part: “The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, . . . on the contrary, it abhors such outrage.”

This was adopted in the Hague Regulations and as interpreted in earlier Army Law of Land Warfare manuals, prohibited assassinations as well as any declarations that an individual or group is outside the protection of the law of war, which is what designation as an unprivileged belligerent does. The prohibition of assassination has also been put aside with the routine practice of assassination with drones today by the U.S. military.

The Confederacy committed the offense of outlawry when its leaders declared all captured African-Americans fighting for the Union were outside the protection of the law of war (which did preexist Lieber’s Code) and would be placed into the indefinite detention of slavery. After 9/11, the U.S. government did the same with the invention of the unlawful combatant/unprivileged belligerent category and indefinite detention at Guantanamo Bay and any other location U.S. officials chose to place “unprivileged belligerents.”

Treason of the Professors and the Media

Ironically, shortly after the New York Times expressed its concern for journalists in early August, the Guardian reported in an article written by William C. Bradford, a recently hired assistant professor in the law department at the U.S. Military Academy at West Point. The article, entitled “Trahison des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column,” was published in the National Security Law Journal of George Mason University Law School.

Bradford argued that the U.S. should be more aggressive in attacking Muslims to include attacks which are war crimes under the law of war. But it was his advocacy that the U.S. military attack other “lawful targets” in its war on terrorism, which include “law school facilities, scholars’ home offices and media outlets where they give interviews” that caught the most attention. These civilian areas were all places where a “causal connection between the content disseminated and Islamist crimes incited” exist, according to Bradford.

Furthermore, Bradford wrote, “Shocking and extreme as this option might seem, [dissenting] scholars, and the law schools that employ them, are – at least in theory – targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism.” In other words, dissenting scholars are unprivileged belligerents and subject to attack, just as journalists are according to the Law of War manual.

Not to defend him but Bradford was articulating the underlying logic of the new Law of War manual’s position that dissenting journalists can be targeted as unprivileged belligerents. This, as stated above, is consistent with oppressive extra-constitutional martial law practices which Chief Prosecutor Mark Martins boasts of as “U.S. domestic common law of war.”

One has to ask: where are the supposed watchdogs of the press when military officers can so easily slide historical falsehoods past them in destroying freedom of the press? Further, Bradford argued that law professors who criticized the failure of the U.S. to abide by the Geneva Conventions and the Law of War represented a “treasonous” fifth column that could be attacked as enemy combatants.

If there is treason being committed in the United States, it must be seen in the acts of those reconstituting the extra-constitutional martial law cases of the Civil War period. That is, Brig. Gen. Mark Martins and associated government attorneys who, in effect, are engaged in an indirect coup d’etat of the U.S. Constitutional order. In fact, Bradford was alleged to have written in favor of a direct military coup d’etat as well.

As it turned out, Bradford had other ethical issues than just his incitement to commit war crimes and target law professors. A combination of factors led to his resigning his position at the Military Academy and this individual crisis would seem to have passed.

The home page of the National Security Law Journal in which his essay had been published carried a repudiation of it by the incoming editorial board. They summarized his article as follows: “Mr. Bradford’s contention that some scholars in legal academia could be considered as constituting a fifth column in the war against terror; his interpretation is that those scholars could be targeted as unlawful combatants.”

But substitute “journalists” for “scholars” and you have the position on journalists of the DOD’s new Law of War manual.

An insightful article in The Atlantic asks “how a scholar pushing these ideas seems not to have raised red flags any earlier.” That’s an excellent question. The article was entitled “The Unusual Opinions of William C. Bradford.” But here’s the point; these opinions are not unusual among some members of the military and right-wing law professors such as Adrian Vermeule of Harvard and Eric Posner of the University of Chicago.

Posner and Vermeule have carved out a niche in American legal discourse in advocating that the U.S. needs to turn to the legal “wisdom” of the German Nazi lawyer, Carl Schmitt. In Terror in the Balance, they suggest that the U.S. may need to adopt censorship for, among other reasons, “antigovernment speech may demoralize soldiers and civilians.” For precedent, they point out that “Martial law during the Civil War permitted the military to try and punish people who criticized the Lincoln administration’s conduct of the war.”

The Attack on ‘Lawfare’

Other prominent advocates of authoritarian legal practices present themselves as protecting against disloyal attorney who practice “lawfare,” which is defined as a form of “asymmetric warfare” that misuses domestic or international law to damage an opponent through legal actions in a courtroom. For instance, Ben Wittes of lawfareblog.com would seem to espouse this type of animosity toward public-interest lawyers who use the courts to defend First Amendment liberties.

A fallacious argument, made by Wittes in a paper which calls for “balancing” liberty and security, is his idiosyncratic belief that “in American constitutional law, for example, free speech does not exist as a general right of the public to communicate as much or as widely as it desires but as an individual right not to have government restrict one’s speech.”

This is contrary to the understanding of the Supreme Court which held in First Nat. Bank of Boston v. Bellotti, that: “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” In other words, the First Amendment guarantees the public’s “right to know.”

Why does this matter? The Constitution’s Framers understood that an informed population was crucial for a Republic. As James Madison put it: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

This understanding of the criticality of the free flow of information for wise democratic decision-making is particularly important for national security where ignorance comes with the highest cost. This understanding formed Clausewitz’s belief in a broad-based civilian decision-making process in matters of national security strategic policy, and not one driven by military leaders with their one-dimensional thinking process.

The Vietnam War is Exhibit A as proof of this. If it had been left to the Generals to decide, the war would have continued “perpetually” even though wiser heads realized from the beginning that it was unwinnable by U.S. terms of maintaining an unpopular government in South Vietnam. The antiwar movement, whatever the motives of some, proved to be more strategically astute than General William Westmoreland who would have continued the war until the U.S. bankrupted itself in the manner that the Soviet Union would years later in Afghanistan. It was the American antiwar movement which gave effect to Clausewitz’s strategy that when a war’s costs exceed its “benefits,” a way must be found to end it.

Curiously, Wittes accurately notes in Law and the Long War that to claim “the President has all the powers of a normal war yet few of its restraints, that the whole world is his battlefield, and that this state of affairs goes on in perpetuity is really akin to claiming a kind of worldwide martial law.” In fact, that’s exactly what the Justice Department argued in Hedges v. Obama without the admission as to martial law.

Dissent as Treason

Since the Vietnam War, the belief that the media and other critics of government policies act as fifth columnists has become commonplace in military-oriented journals and with the American authoritarian-oriented political class, expressed in articles such as William Bradford’s attack on “treasonous professors.”

To the question “how a scholar pushing these ideas” did not raise a red flag, that might best be asked of the National Security Law Journal’s previous editorial board. It is worth noting however that the editors who chose to publish Bradford’s article are not neophytes in national security issues or strangers to the military or government.

As described on the NSLJ website, the Editor-in-Chief from 2014-2015 has broad experience in homeland and national security programs from work at both the Department of Justice and the Department of Homeland Security and currently serves (at the time of publication of Bradford’s article) as the Deputy Director for the Office of Preparedness Integration and Coordination at FEMA. A U.S. government official in other words.

The “Articles Selection Editor” is described as “a family physician with thirty years of experience in the foreign affairs and intelligence communities.” Websites online suggest his experience may have been acquired as a CIA employee. The executive editor appears to be a serving Marine Corps officer who attended law school as a military-funded student.

Significantly; Bradford was articulating precepts of the “U.S. common law of war” promoted by Chief Prosecutor Mark Martins because nothing Bradford advocated was inconsistent with William Whiting’s guidance to Union Generals. Except Whiting went even further and advised that judges in the Union states who “impeded” the military in any way by challenging their detentions were even greater “public enemies” than Confederate soldiers were.

This “U.S. common law of war” is a prosecution fabrication created by legal expediency in the absence of legitimate legal precedent for what the United States was doing with prisoners captured globally after 9/11. This legal invention came about when military commission prosecutors failed to prove that the offense of Material Support for Terrorism was an international law of war crime. So prosecutors dreamed up a “domestic common law of war.” This in fact is simply following the pattern of totalitarian states of the Twentieth Century.

Government-Media-Academic-Complex

The logic of Bradford’s argument is the same as that of the Defense Department in declaring that journalists may be deemed “unprivileged belligerents.” As quoted above, George H. Aldrich had observed that in Vietnam, both sides had as their goal “the destruction of the will to continue the struggle.”

Bradford argued that Islamists must overcome Americans’ support for the current war to prevail, and “it is the ‘informational dimension’ which is their main combat effort because it is U.S. political will which must be destroyed for them to win.” But he says Islamists lack skill “to navigate the information battlespace, employ PSYOPs, and beguile Americans into hostile judgments regarding the legitimacy of their cause.”

Therefore, according to Bradford, Islamists have identified “force multipliers with cultural knowledge of, social proximity to, and institutional capacity to attrit American political will. These critical nodes form an interconnected ‘government-media-academic complex’ (‘GMAC’) of public officials, media, and academics who mould mass opinion on legal and security issues . . . .”

Consequently, Bradford argues, within this triumvirate, “it is the wielders of combat power within these nodes — journalists, officials, and law professors — who possess the ideological power to defend or destroy American political will.”

While Bradford reserves special vituperation for his one-time fellow law professors, he states the “most transparent example of this power to shape popular opinion as to the legitimacy of U.S. participation in wars is the media.”

As proof, Bradford explained how this “disloyalty” of the media worked during the Vietnam War. He wrote: “During the Vietnam War, despite an unbroken series of U.S. battlefield victories, the media first surrendered itself over to a foreign enemy for use as a psychological weapon against Americans, not only expressing criticism of U.S. purpose and conduct but adopting an ‘antagonistic attitude toward everything America was and represented’ and ‘spinning’ U.S. military success to convince Americans that they were losing, and should quit, the war. Journalistic alchemists converted victory into defeat simply by pronouncing it.”

Space does not permit showing in how many ways this “stab in the back” myth is false. But this belief in the disloyalty of the media in Bradford’s view remains today. He wrote: “Defeatism, instinctive antipathy to war, and empathy for American adversaries persist within media.”

Targeting Journalists

The right-wing militarist Jewish Institute for National Security Affairs (JINSA), with mostly retired U.S. military officers serving as advisers, has advocated targeting journalists with military attacks. Writing in The Journal of International Security Affairs in 2009, retired U.S. Army Lt. Col. Ralph Peters wrote:

“Today, the United States and its allies will never face a lone enemy on the battlefield. There will always be a hostile third party in the fight, but one which we not only refrain from attacking but are hesitant to annoy: the media . . . . Future wars may require censorship, news blackouts and, ultimately, military attacks on the partisan media.” (Emphasis in original.)

The rationale for that deranged thinking was first propounded by Admiral Ulysses S. Grant Sharp and other authoritarian-minded officers after the Vietnam War. Sharp explained, our “will” was eroded because “we were subjected to a skillfully waged subversive propaganda campaign, aided and abetted by the media’s bombardment of sensationalism, rumors and half-truths about the Vietnam affair — a campaign that destroyed our national unity.” William C. Bradford apparently adopted and internalized this belief, as have many other military officers.

That “stab in the back” myth was propagated by a number of U.S. military officers as well as President Richard Nixon (as explained here). It was more comfortable to believe that than that the military architects of the war did not understand what they were doing. So they shifted blame onto members of the media who were astute enough to recognize and report on the military’s failure and war crimes, such as My Lai.

But those “critical” journalists, along with critics at home, were only recognizing what smarter Generals such as General Frederick Weyand recognized from the beginning. That is, the war was unwinnable by the U.S. because it was maintaining in power its despotic corrupt ally, the South Vietnamese government, against its own people. Whether or not what came later was worse for the Vietnamese people was unforeseeable by the majority of the people. What was in front of their eyes was the military oppression of American and South Vietnamese forces and secret police.

Information Warfare Today

In 1999, the Rand Corporation published a collection of articles in Strategic Appraisal: The Changing Role of Information in Warfare. The volume was edited by Zalmay Khalilzad, the alleged author of the Defense Department’s 1992 Defense Planning Guidance, which was drafted when Dick Cheney was Defense Secretary and Paul Wolfowitz was Under Secretary of Defense – and promulgated a theory of permanent U.S. global dominance.

One chapter of Rand’s Strategic Appraisal was written by Jeremy Shapiro, now a special adviser at the U.S. State Department, according to Wikipedia. Shapiro wrote that the inability to control information flows was widely cited as playing an essential role in the downfall of the communist regimes of Eastern Europe and the Soviet Union.

He stated that perception management was “the vogue term for psychological operations or propaganda directed at the public.” As he expressed it, many observers worried that potential foes could use techniques of perception management with asymmetric strategies with their effect on public opinion to “destroy the will of the United States to wage war.”

Consequently, “Warfare in this new political environment consists largely of the battle to shape the political context of the war and the meaning of victory.”

Another chapter on Ethics and Information Warfare by John Arquilla makes clear that information warfare must be understood as “a true form of war.” The range of information warfare operations, according to Arquilla, extends “from the battlefield to the enemy home front.” Information warfare is designed “to strike directly at the will and logistical support of an opponent.”

This notion of information warfare, that it can be pursued without a need to defeat an adversary’s armed forces, is an area of particular interest, according to Arquilla. What he means is that it necessitates counter measures when it is seen as directed at the U.S. as now provided for in the new LOW Manual.

Important to note, according to Arquilla, is that there is an inherent blurriness with defining “combatants” and “acts of war.” Equating information warfare to guerrilla warfare in which civilians often engage in the fighting, Arquilla states “in information warfare, almost anyone can engage in the fighting.”

Consequently, the ability to engage in this form of conflict is now in the hands of small groups and individuals, offering up “the prospect of potentially quite large numbers of information warfare-capable combatants emerging, often pursuing their own, as opposed to some state’s policies,” Arquilla wrote.

Therefore, a “concern” for information warfare at the time of the Rand study in 1999 was the problem of maintaining “noncombatant immunity.” That’s because the “civilian-oriented target set is huge and likely to be more vulnerable than the related set of military infrastructures . . . . Since a significant aspect of information warfare is aimed at civilian and civilian-oriented targets, despite its negligible lethality, it nonetheless violates the principle of noncombatant immunity, given that civilian economic or other assets are deliberately targeted.”

What Arquillo is saying is that civilians who are alleged to engage in information warfare, such as professors and journalists, lose their “noncombatant immunity” and can be attacked. The “blurriness” of defining “combatants” and “acts of war” was removed after 9/11 with the invention of the “unlawful combatant” designation, later renamed “unprivileged belligerent” to mimic language in the Geneva Conventions.

Then it was just a matter of adding the similarly invented “U.S. domestic common law of war” with its martial law precedents and a framework has been built for seeing critical journalists and law professors as “unprivileged belligerents,” as Bradford indiscreetly wrote.

Arquilla claims that information warfare operations extend to the “home front” and are designed “to strike directly at the will and logistical support of an opponent.” That is to equate what is deemed information warfare to sabotage of the population’s psychological will to fight a war, and dissidents to saboteurs.

Perpetual War

But this is a perpetual war driven by U.S. operations, according to a chapter written by Stephen T. Hosmer on psychological effects of information warfare. Here, it is stated that “the expanding options for reaching audiences in countries and groups that could become future U.S. adversaries make it important that the United States begin its psychological conditioning in peacetime.” Thus, it is necessary “to begin to soften the fighting will of the potential adversary’s armed forces in the event conflict does occur.”

As information warfare is held to be “true war,” this means that the U.S. is perpetually committing acts of war against those deemed “potential” adversaries. Little wonder that Vladimir Putin sees Russia as under assault by the United States and attempts to counter U.S. information warfare.

This same logic is applied to counter-insurgency. The 2014 COIN Manual, FM 3-24, defines “Information Operations” as information-related capabilities “to influence, disrupt, corrupt, or usurp the decision-making of adversaries and potential adversaries while protecting our own.”

Those we “protect ourselves from” can logically be seen as the internal enemy, as William Bradford saw it, such as critical law professors and journalists, just as Augusto Pinochet did in Chile with dissidents.

With the totalitarian logic of information-warfare theorists, internalized now throughout much of the U.S. government counter-terrorism community, it should be apparent to all but the most obtuse why the DOD deems a journalist who writes critically of U.S. government war policy an “unprivileged belligerent,” an enemy, as in the Law of War manual. William C. Bradford obviously absorbed this doctrine but was indiscreet enough to articulate it fully.

It Has Happened Here!

That’s the only conclusion one can draw from reading the transcript of the Hedges v. Obama lawsuit. In that lawsuit, plaintiffs, including journalists and political activists, challenged the authority provided under Sec. 1021 of the 2012 National Defense Authorization for removal out from under the protection of the Constitution of those deemed unprivileged belligerents. That is, civilians suspected of lending any “support” to anyone whom the U.S. government might deem as having something to do with terrorism.

“Support” can be as William Whiting described it in 1862 and as what is seen as “information warfare” by the U.S. military today: a sentiment of hostility to the government “to undermine confidence in its capacity or its integrity, to diminish, demoralize . . . its armies, to break down confidence in those who are intrusted with its military operations in the field.”

Reminiscent of the Sinclair Lewis novel It Can’t Happen Here where those accused of crimes against the government are tried by military judges as in the U.S. Military Commissions, a Justice Department attorney arguing on behalf of the United States epitomized the legal reasoning that one would see in a totalitarian state in arguing why the draconian “Law of War” is a substitute for the Constitution.

The Court asked Assistant U.S. Attorney Benjamin Torrance if he would agree, “as a principled matter, that the President can’t, in the name of the national security of the United States, just decide to detain whomever he believes it is important to detain or necessary to detain to prevent a terrorist act within the United States?”

Rather than giving a straight affirmative answer to a fundamental principle of the U.S. Constitution, Torrance dissembled, only agreeing that that description would seem “quite broad,” especially if citizens. But he added disingenuously that it was the practice of the government “not to keep people apprehended in the U.S.”

Which is true, it is known that people detained by the U.S. military and CIA have been placed everywhere but in the U.S. so that Constitutional rights could not attach. Under Section 1021, that “inconvenience” to the government would not be necessary.

When asked by the Court if he, the Justice Department attorney, would agree that a different administration could change its mind with respect to whether or not Sec. 1021 would be applied in any way to American citizens, he dissembled again, answering: “Is that possible? Yes, but it is speculative and conjecture and that cannot be the basis for an injury in fact.”

So U.S. citizens or anyone else are left to understand that they have no rights remaining under the Constitution. If a supposed “right” is contingent upon who is President, it is not a right and the U.S. is no longer under the rule of law.

In discussing whether activist and journalist Birgitta Jónsdóttir, a citizen of Iceland, could be subject to U.S. military detention or trial by military commission, Assistant U.S. Attorney Torrance would only disingenuously answer that “her activities as she alleges them, do not implicate this.” Disingenuous because he knew based upon the answer he previously gave that the law of war is arbitrary and its interpretation contingent upon a military commander, whoever that may be, at present or in the future.

What could happen to Ms. Jónsdóttir would be completely out of her control should the U.S. government decide to deem her an “unprivileged belligerent,” regardless of whether her expressive activities changed positively or negatively, or remained the same. Her risk of detention per the Justice Department is entirely at the sufferance of whatever administration may be in place at any given moment.

Any doubt that the Authorization for the Use of Military Force, along with Section 1021 of the National Defense Authorization Act of 2012, is believed by the U.S. Executive Branch to give it the untrammeled power that Article 48 of the Weimar Germany constitution gave to the German President in 1933 was settled by the arguments made by the Justice Department attorney in Hedges v. Obama.

Setting First Amendment Aside

One does not need to speculate that the U.S. government no longer sees First Amendment activities as protected. Government arguments, which were made in the Hedges v. Obama lawsuit, revealed that the Justice Department, speaking for the Executive Branch, considers protection of the Bill of Rights subordinate to the claim of “war powers” by the Executive. One can only be willfully blind to fail to see this.

By the Justice Department’s court arguments and filings, the protections afforded by the U.S. Bill of Rights are no more secure today than they were to Japanese-Americans when Western District military commander General DeWitt decided to remove them from their homes on the West Coast and intern them in what were initially called, “concentration camps.”

The American Bar Association Journal reported in 2014 that Justice Antonin Scalia told students in Hawaii that “the Supreme Court’s Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time.” But contrary to Scalia stating that Korematsu had been repudiated, Korematsu has never been overruled.

The court could get a chance to do so, the ABA article stated, in the Hedges v. Obama case “involving the military detention without trial of people accused of aiding terrorism.” But that opportunity has passed.

A U.S. District Court issued a permanent injunction blocking the law’s indefinite detention powers but that ruling was overturned by the Second Circuit Court of Appeals. A petition to the U.S. Supreme Court asked the justices to overturn Sec. 1021, the federal law authorizing such detentions and stated the justices should consider overruling Korematsu. But the Supreme Court declined to hear the case in 2014, leaving the Appeals Court’s ruling intact.

The Supreme Court’s decision to not overturn Korematsu allows General DeWitt’s World War II decision to intern Japanese-Americans in concentration camps to stand as a shining example of what Brig. General Marks Martins proudly holds up to the world as the “U.S. domestic common law of war.”

Todd E. Pierce retired as a Major in the U.S. Army Judge Advocate General (JAG) Corps in November 2012. His most recent assignment was defense counsel in the Office of Chief Defense Counsel, Office of Military Commissions. In the course of that assignment, he researched and reviewed the complete records of military commissions held during the Civil War and stored at the National Archives in Washington, D.C.

September 13, 2015 Posted by | Civil Liberties, Full Spectrum Dominance, Mainstream Media, Warmongering, War Crimes | , , , , , , , , , , | Leave a comment

Montez Spradley, an Innocent Man Once on Death Row, Is Free

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By Anna Arceneaux | ACLU | September 10, 2015

Montez Spradley is finally free. He walked out of prison late last week, after spending more than nine years behind bars — including three-and-a-half years on Alabama’s death row — for a murder he did not commit.

I began representing Montez seven years ago, not long after joining the ACLU. From the very first day that I met him, Montez maintained his innocence. No physical evidence ever tied him, a young Black man, to the 2004 murder of a 58-year old white woman in Birmingham. The prosecution instead relied on the highly tainted and inconsistent testimony of his disgruntled ex-girlfriend as well as a jailhouse snitch, who both claimed he had confessed to them.

Montez’s jurors did not want him to die. They voted 10-2 to sentence him to life, but the trial judge who presided over his first trial, Judge Gloria Bahakel, overrode their decision of life in prison and sentenced him to death, in a process known as “judicial override.”  More than 20 percent of the men on Alabama’s death row have been sent there by Alabama judges, even though their juries voted for life. While Florida and Delaware still have judicial override on the books, only Alabama continues to use it with disturbing frequency. And Alabama judges almost never use override to reverse a jury’s death verdict to impose life. In fact, since 1976, death-to-life overrides have only happened nine times — and only once in the last 10 years — compared to 99 times the Montez way.

Montez was not the first innocent man to arrive to death row after a judge had overridden the jury’s life vote, and until the practice is shut down, he will not be the last.  Residual doubt about a defendant’s guilt is often a major reason why a jury would vote for life. The fact that innocent people continue to be sentenced to death, especially when a jury would have spared their lives, is the very definition of a failed system.

Fortunately, in a rare victory, the Alabama Court of Criminal Appeals recognized that Montez’s first trial had been a “miscarriage of justice.” Still, it took years to untangle the web of police misconduct and judicial misconduct by Judge Bahakel that led to Montez’s conviction and death sentence.

Montez had heard rumors that his ex-girlfriend had been paid reward money, but it was not until we won his appeal, that we started to find evidence of the payments. And we learned that she had been paid an incredible sum for her testimony: $10,000. We learned that she had tried to back out before Montez’s trial and told the police that Montez had never confessed to her. Rather than honoring the truth, they dangled the $10,000 over her head and threatened to take her children away and to prosecute her for perjury if she did not “stick with her original story.”

Neither the police nor the prosecutors ever disclosed the payments to the defense.  Judge Bahakel, before sentencing Montez to death, had signed off on a payment herself. Yet she never told Montez’s trial lawyers about it, and her order authorizing the payment never made it into the court file. We also knew that the lead detective on the case — the same one who authorized the payments — had lied on the stand about the ex-girlfriend’s statement to him. Unfortunately, such things are far too common in our system where the state often focuses on winning rather than justice.

Police and prosecutors are rarely held accountable for their misconduct. In fact, the lead detective on the case — the same one who lied on the stand at trial — was honored with an award from a victims’ rights group for solving this cold case that led to Montez’s arrest. No one should be rewarded for turning a blind eye to truth and justice, especially when it means an innocent person faces execution.

Montez is still a young man. More than anything, he wanted his freedom so he could be there for his children, and now he gets to be more present in their lives and watch them grow. But nothing can give him those years back, and he faces many challenges ahead.

Others have not fared as well. Innocent people, and people whose juries wanted them to live, remain on death row. For Montez and for them, it is time to reject the failed system of capital punishment.

September 11, 2015 Posted by | Civil Liberties, Deception | , , | Leave a comment

Israel nuclear whistleblower Vanunu placed under house arrest over TV interview

RT | September 10, 2015

Whistleblower Mordechai Vanunu, who served 18 years for exposing details concerning Israel’s clandestine nuclear program in 1986, has been put under house arrest for giving an interview to local media, thus allegedly violating terms of his release.

The Magistrate’s Court in Jerusalem on Thursday confined the nuclear whistleblower to a seven-day house arrest, prohibiting him from using the internet or talking to the press, following a police investigation launched the previous day.

Local media report that the investigation was initiated by Shin Bet (the Israel Security Agency), which has been monitoring Vanunu’s activities since his release in 2004.

The arrest was prompted by an interview the whistleblower gave to the local Channel 2 TV station last week. The news channel said the interview’s content had been cleared for broadcast by the military censor. It added that police also asked for the unedited footage of the interview, suspecting that Vanunu had discussed sensitive information.

Channel 2 refused to hand it over, however, citing the media’s right to protect its sources. This principle is an “important element in the system of rights and freedoms on which a democratic government is based,” the station’s lawyer asserted, as quoted by the Haaretz newspaper.

Vanunu’s defense attorney, Yemima Abramovich, said that the interview was not a breach of his parole, as Vanunu had only been prohibited from talking to foreign journalists.

“He is allowed to talk to Israeli journalists,” she said, as quoted by Ynetnews, stressing that “the interview was approved by the military censor.”

“I’ve been Mordechai Vanunu’s lawyer for many years,” she added. “He is out of prison, but isn’t really free. It’s impossible for him to live a normal life.”

A senior Israeli security official told DPA news agency that, according to his release agreement, Vanunu was forbidden from sharing any classified information he had obtained as an employee at the Negev Nuclear Research Center near Dimona, “even if he already published that information in the past.”

In the parts of the interview that were aired last Friday, Vanunu spoke about his personal life and motives for leaking information about the existence of Israel’s nuclear activities, which the country neither denies, nor admits. However, he didn’t go into detail about what he leaked to the British press in 1986.

It was a desire to “inform the citizens of the Middle East, the world, and the state of Israel” that had prompted him to act, Vanunu told Channel 2, saying he was horrified at the “danger” posed by the Israel’s nuclear weapons program while working there.

The African-born Israeli worked as a technician at the Negev Nuclear Research Center until 1985. He leaked the information, including photographs, about Israeli’s nuclear activities to The Sunday Times in 1986.

Israel’s spy agency, Mossad, infamously organized a complex 1986 operation to abduct Vanunu and smuggle him back to Israel. It involved a female agent in disguise seducing the whistleblower and luring him into Rome. Once there, he was injected with a paralyzing drug and transported to an Israeli reconnaissance vessel docked under the guise of a merchant ship.

After serving an 18 year prison sentence, he was released on parole under the terms of which he is prohibited from leaving the state of Israel and having contact with foreigners, including the press. He was imprisoned again for three months in 2010 on the grounds that he had contacted foreign agents.

Grant F. Smith from the Institute for Research of Middle Eastern policy told RT that Vanunu is the key witness to Israeli’s nuclear program, which the state has kept secret.

“Vanunu did something nobody else was ever able to do,” he said. “He was able to take photos inside of Dimona to the London Sunday Times, and even more surprising – they published them. He has been considered to be the key witness to the fact that there is a nuclear weapons program research and development going on [in Israel]. He was also there right at the point where, according to Department of Defense Documents released recently, they were beginning hydrogen bomb research.”

READ MORE:

Israel gags famous nuclear whistleblower invited to speak at human rights conference

US-Israeli computer super-worm hit Russian nuclear plant – Kaspersky

September 10, 2015 Posted by | Civil Liberties, Full Spectrum Dominance, Video | , , | Leave a comment

Egypt: 680 death sentences handed down since 3 July 2013

MEMO | September 10, 2015

Nine anti-government defendants were sentenced to death in Egypt on Monday, bringing the number of those handed the death penalty to 680 since 3 July 2013, the Arab Organisation for Human Rights in the UK (AOHR UK) said in a report on Tuesday.

The organisation said the Egyptian security services torture opponents of the Egyptian regime and commit crimes against them so as to force them to confess to “fabricated” charges so they can be given severe sentences that may amount to the death penalty.

Seven of those who have received the death penalty have already been executed. The total number of defendants whose papers were referred to the Grand Mufti has reached 1,734. The report pointed out that senior officials at Mansoura’s security directorate systematically exercise illegal detention, kidnapping, torture and the forgery of official documents and fabrications.

The AOHR UK noted that photographing the defendants in a degrading manner, humiliating and torturing them and forcing them to give false confessions that were dictated to them constitute “unacceptable behaviour both legally and morally; and are also serious human rights violations which, if added to other human rights violations in Egypt, underline the collapse of the moral and legal system among individuals in the Egyptian police.”

The organisation warned that the adoption of the anti-terror law poses a threat to defendants who had already been sentenced to death as the new law decreased their chances of avoiding the death penalty and having fair trials.

It invited UN Secretary-General Ban Ki-moon to form a fact-finding committee with full powers to investigate crimes committed after 3 July 2013 and bring those responsible for these crimes to justice.

On Monday, the Terrorism Circuit at the Mansoura Criminal Court, headed by Judge Osama Abdul Zahir, sentenced to death nine young men, including four students, in case number 16,850 of the year 2014, in which 24 people from the province of Dakahlia are accused. The remaining defendants were sentenced to life in prison.

Yesterday the court referred the cases of 10 defendants to the Grand Mufti for his approval. They were sentenced on charges of killing a police sergeant, committing acts of violence against the army and police forces, forming a cell that seeks regime change, and possessing explosives and weapons.

AOHR UK said that defendants were subjected to torture to force them to make fabricated confessions. Such confessions would help the regime demonise its opponents and incite public hatred ahead of the judicial procedures.

September 10, 2015 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , | Leave a comment

The Precarious State of the Private-Sector Drone Industry

By Jay Stanley | ACLU | September 9, 2015

A lot of people are taking it as a given that drones will become ubiquitous in the coming years. But it seems to me that that’s far from a given; there is still a lot of uncertainty over the future of this technology (and therefore over the kinds of privacy threats and free expression opportunities that it will in the end present).

This is an industry that is still in a very early stage of its development, when it is highly sensitive to shocks. Incidents and accidents that happen at this stage can have lifetime effects, lasting many decades. That is especially true with a huge media spotlight on this technology. The amount of press coverage generated by the landing of a harmless toy drone inside the White House fence is indicative here.

Imagine the uproar if we were to see somebody put a gun on a drone and start shooting people remotely. Or drones used to bypass security perimeters and deliver explosives to a high-value target such as the White House. Even if the explosives did no more than blow a small hole in the White House lawn in the middle of the night, hurting no one, that would decisively alter the course of the drone industry.

Another possibility is some kind of spectacular accident. The safety record of this new technology is not great. There has been a lot of attention paid lately to drone “near-misses” with passenger airliners. (I have heard some experts express doubt that an accidental collision between a small drone and an airliner would cause the airliner to crash—but that’s certainly not something anyone wants subject to uncontrolled real-world tests.) Should a drone bring down an airliner, the drone industry might never recover. Even an accident in which a drone falls out of the sky could be a game-changer. If the 375-pound military drone that crashed onto an elementary school playground in Pennsylvania in April 2014 had killed children, we would likely be having a different conversation today.

Even without anything so dramatic, an accumulation of smaller accidents could shape the technology over time. Any technology that involves complex interactions with human beings will inevitably have some rocky times as we attempt to smoothly integrate it into life. If drones—even small lightweight private ones—are regularly crashing onto people’s rooftops, windshields, and heads, tolerance for the technology is likely to go down fast. If drones become popular enough that the skies over our neighborhoods are regularly criss-crossed with them, this could well happen—especially given the many unknowns such as whether territorially jealous birds will routinely attack them.

There may also be a nuisance factor. Even if large numbers of small drones constantly flying overhead turn out not to be dangerous, they may simply annoy people. To start with there’s the buzzing noise they make, and of course there’s also privacy. At the ACLU we have been most focused on the danger that drones will be used to construct regimes of constant wide-area surveillance. And there is a very real potential that private-sector drones may also become a tool for directly harmful privacy invasions. But even without such significant invasions, private-sector drones may spark nebulous feelings of intrusion. I found it interesting in this regard that firefighters in a recently circulated video found drones to be annoying enough that they tried to blast them out of the sky with their hoses. When a drone hovered over a crowd of hockey fans after a 2014 game in Los Angeles, a “mob mentality set in” as the LA Times put it, and “revelers were throwing everything they could to knock the drone down.”

I can’t claim to know what motivates people in incidents like these. I do know that while photography in public is a First Amendment right, as a matter of etiquette it is often unacceptable. As I’ve discussed before, training a camera on someone who does not want to be photographed may be constitutionally protected in public (as is yelling and swearing at them), but it is also perceived as rude.

These kinds of factors may add up to a general feeling by communities that they’d rather do without the putative advantages of widespread drone usage. In this drones may prove to fall into the same category as Google Glass—a widely anticipated and talked about technology that is naively viewed as inevitable, but ultimately one that remains confined to relatively narrow applications due to the subtleties and caprices of human etiquette.

All this makes it very hard to predict what will happen to this technology. In many ways what we’re witnessing is a race against time. If drones prove to be useful enough machines with enough practical benefits that Americans feel they can’t live without them, they’ll likely tolerate the occasional tragic accident or terrorist attack, as well as a good deal of annoyance. But if the disaster happens first, drones may never get a chance to prove themselves.

September 9, 2015 Posted by | Civil Liberties, Full Spectrum Dominance | , | Leave a comment

City of Boston’s license plate reader database was online in plain text with no password protection

PrivacySOS | September 8, 2015

The Boston Transportation Department has been operating a license plate tracking program seeking to identify parking scofflaws, people with expired insurance, stolen cars, and even people suspected of gang and terrorist ties, according to recently discovered documents. Up until a few weeks ago, this sensitive information about thousands of people, including every person with a Boston resident parking permit, was stored online in plain text for the world to see.

In mid-August 2015, officials in Boston were surprised to receive a phone call from journalist Kenneth Lipp, who informed them that the Boston Transportation Department’s entire license plate reader database was online and available to download for anyone with an internet connection. There was no password guarding the database, which contained a million or so license plate reader records, the home addresses of every single person with a Boston parking permit, and lists of 2,500 people the police or FBI (it remains unclear which) have designated suspected gang members or terrorists, among other data.

Through some Googling, Lipp discovered that BTD’s license plate reader system, run by the Canadian technology giant Genetec, was dumping all of its records into an online server maintained by a Xerox subsidiary for the world to see—if it knew where to look.

Included in the files available on this public facing, password-free server were records suggesting that the Boston Police Department has been piggybacking off BTD license plate reader data for years. One of the files shows what appear to be records of automated emails from the BTD server to the Boston Police department’s stolen vehicle office, alerting the police each time a car on the stolen car hotlist encountered a BTD license plate reader.

I was surprised to discover these records because in 2013, in the wake of local reporter Shawn Musgrave’s expose on privacy and civil liberties problems with the department’s license plate reader program, the Boston Police told the public that it was scrapping the program altogether. The Xerox records suggest scrapping isn’t at all what occurred. Indeed, the automated emails from BTD’s license plate reader program to the Boston Police, left on the Xerox server for anyone to download at will, appear to have started at around the same time the cops told the public they’d stopped using license plate readers. That’s to say, instead of scrapping the program as the police told the public they would, BPD appears to have bootstrapped their license plate reader program from BTD data.

While the Boston Transportation Department’s license plate reader program is primarily used for parking enforcement, the records obtained freely online reveal that the information was processed for other purposes that go well beyond hunting for stolen cars.

Lipp reports for the Dig :

In collecting data, the BTD patrols city blocks—in some cases, both literally and figuratively sweeping the street with ALPR-equipped sanitation trucks—and not exclusively in search of plates belonging to scofflaws. Files obtained in our investigation reveal that as the BTD’s software searches databases, it alerts department operators if a plate is connected to a “convicted person on supervised release,” or to someone pegged to a “protection order.” Commonly called hotlists, these compendiums are created by fusing criminal intelligence from sources like the FBI’s National Crime Information Center and the AMBER Alert program, as well as from data furnished by banks, collection agencies, and the civil court system.

It’s not clear whether or how the public is any safer when authorities use massive watchlists. In Boston, a city of approximately 600,000 people, parking enforcement has one hotlist with 720,000 hits, each of which notes a plate number, location info, and available make and model data. Among the targets listed in August: 19 license numbers classified as “immediate threats,” nearly 4,000 affiliated with “wanted persons,” 25 plates linked to bad checks, 75 tied to payment defaults, and 468,617 flagged for cancelled insurance. Also exposed were 2,500 hits on a “Gang/Terrorist Watch…”

We don’t know for certain from which list the 2,500 people identified as gang members or terrorists were so designated, or who designated them, but a likely suspect is the FBI’s Violent Gang and Terrorist Organization File (VGTOF) database.

According to a 2007 Inspector General report, the FBI at that time included nearly half a million people in this database, assigning them one of three codes meant to inform law enforcement “whether there is an active arrest warrant, a basis to detain the individual, or an interest in obtaining additional intelligence information regarding the individual,” respectively.

It’s not certain that the 2,500 people identified as “Gang/Terrorist Watch” in the Xerox/Boston Transportation Department license plate reader database were identified as such because of their inclusion in the FBI’s VGTOF, but it seems probable. The FBI may be interested to know that information about who is a suspected terrorist is posted on the internet for anyone in the world to download and peruse.

Government agencies routinely implore the public to trust them with our sensitive information, whether it’s license plate reader records detailing our movements and life patterns or information collected about political activists for so-called “public safety” purposes. But incidents like this one demonstrate that we should be very circumspect about allowing governments and corporations to collect, share, and manipulate information about us in secret.

Journalist Kenneth Lipp found this database and exposed it to the company and transportation department, triggering an added layer of security that shielded the information from the public. We will likely never know how many other people stumbled across it, or what they might have done with the information, before then.

September 9, 2015 Posted by | Civil Liberties, Full Spectrum Dominance | , , | Leave a comment

Operation Flavius and the Killer Cameron

By Craig Murray | September 8, 2015

Exactly twenty years ago the European Court of Human Rights found that the British Government had acted illegally in shooting dead three IRA members in Gibraltar, even though the court accepted that the government had a genuine belief that they were planning a bombing attack. Indeed the court accepted the victims were terrorists, and refused compensation to their families on those grounds. But the court refused to accept there was no possibility of foiling the plot through methods other than summary execution.

In the light of the decision that Operation Flavius contravened Article 2 of the European Convention on Human Rights, it is difficult to understand how the government can claim its killing of British men in Syria, with no trial, is anything other than murder. I personally find it difficult to imagine technically how men journeying in a car in Syria were imminently able to instantly wreak havoc in the UK so that it was impossible to prevent by any method other than their execution without trial. The level of certainty required for that decision would involve sufficient knowledge of what was to happen in the UK to stop it here. If there was vagueness about what was actually to happen in the UK, there cannot have been the certainty about the threat claimed. It is a logical impasse.

Frankly in twenty years of experience working with British security services their level of accuracy (remember Iraqi WMD) was never that good. And everybody is fortunately now deeply sceptical about the continual claims by the security services that there are thousands of dedicated Islamic terrorists in the UK conducting hundreds of plots every year, and yet miraculously never actually managing to kill anybody.

Just in case anybody had not worked out yet that the Guardian is a disgraceful neo-con rag, it has an article by its “legal correspondent” Joshua Rozenberg, married to the even more rabid Zionist militarist Melanie Phillips (who still believes the Iraqi WMD exist, hidden in the bed of the Euphrates). Rozenberg assures us it is absolutely legal for the British government to kill us without trial if it wants. He even suggests the murdered Mr Khan would not object:

“If he was waging war on British troops and civilians, he can hardly complain the UK’s armed forces were one step ahead of him.”

Astonishingly for a lawyer, the disgraceful Rozenberg does not seem to notice that the opening “if” is rather important. “If Mr Jones was engaged in insurance fraud, he can hardly complain at being banged up for twenty years”, so according to Mr Rozenberg we can dispense with all that nonsense about trials and evidence and just take the government’s word for it. Not to mention that the government has now instituted summary execution without trial in a country that does not even have the death penalty.

As I have argued, it is not unusual for British people to go to fight abroad. There were British citizens in the Israeli Defence Forces participating in the massacre of Palestinian civilians in Gaza last year. Our neo-con governments of both blue and red Tories have positively encouraged the mercenary companies Executive Outcomes/Sandline/Aegis of Tony Buckingham and Tim Spicer. There are Britons fighting now in the Ukraine. We started by positively encouraging factions in the Syrian civil war, with the Saudis and CIA arming and training them and some of those factions helped constitute ISIL. There is no evidence at all that Islamic State had any interest in attacks in the UK until we started to attack it. (That is not to say it is not a very bad organisation and did not commit actions against UK citizens in its “Caliphate area”. But it did not threaten the UK).

For the government to claim the right to kill British people through sci-fi execution, based on highly unreliable secret intelligence and a secret declaration of legality, is so shocking I find it difficult to believe it is happening even as I type the words. Are we so cowed as to accept this?

September 8, 2015 Posted by | Civil Liberties | , | Leave a comment