Keeping the government in Check, the Uncomfortable Reality of Freedom of the Press

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

WikiLeaks’ founder Julian Assange surrendered to British authorities on December 7, 2010 in connection with sexual assault allegations leveled against the Australian native by Swedish authorities. News media reports said Assange was engaged in consensual sexual encounters with two women (WikiLeak volunteers) in Sweden this past August when the encounters turned non-consensual because Assange would not use a condom. The controversial Assange has gained international acclaim and criticism for his website’s disclosure of thousands of classified U.S. diplomatic cables and documents. The sexual assault charges became prominent after the disclosures occurred.

U.S. Defense Secretary Robert Gates expressed satisfaction to the news media about Assange’ arrest by British authorities. The defense secretary called the latest turn of events in this international furor “good news.”

It is not clear what steps will be taken by Swedish authorities to have Assange returned to Sweden to face the sexual assault charges. A British judge ordered the WikiLeaks founder held without bail pending a December 14 hearing. The judge refused Assange’s request for bail, saying the international fugitive posed a significant “flight risk.” That’s a rather strange finding inasmuch as Assange “surrendered” to British authorities.

In the meantime, a criminal investigation into the WikiLeaks disclosures is underway in this country. CNN’s legal analyst Jeffery Toobin recently observed on the cable news network that Assange would not be allowed to “rub the United States’ nose in committing illegal acts and get away with it.” Toobin speculated that the U.S. Justice Department already has a sealed indictment against the WikiLeaks’ founder.

An Assange indictment would certainly please conservative political leaders in this country. In aFacebook posting, former Alaskan Gov. Sarah Palin, the controversial presidential hopeful, took time out from her caribou killing and fish clubbing to say Assange should be hunted down like an al Qaeda terrorist and indicted under the Espionage Act of 1917.

The former vice-presidential candidate may get her wish. U.S. Attorney General Eric Holder recently told the Washington Post that the Justice Department and the Pentagon are conducting “an active, ongoing criminal investigation” into the WikiLeaks disclosure case. The newspaper reported that the FBI is looking at everyone who had possession of the WikiLeaks documents, including those who gave them to the website. That would most certainly include U.S. Army private and intelligence analyst Bradley Manning who has been identified in the media as the prime suspect responsible for downloading the classified material and somehow making it available to WikiLeaks.

Federal prosecutors also indicated to the Post that their investigation is indeed proceeding under the Espionage Act but is moving carefully because that Act was created long before the U.S. Supreme Court expanded the “free speech” rights under the First Amendment.

“Let me be very clear,” Holder was quoted by the Post. “[Our investigation] is not saber rattling. To the extent there are gaps in our laws, we will move to close those gaps which is not to say … that anybody at this point, because of their citizenship or their residence, is not a target or subject of an investigation that’s ongoing.”

The investigation gained both momentum and legitimacy after Assange reportedly ignored a letter sent by State Department general counsel Harold H. Koch urging him not to release the classified material, to return the material to the U.S. government, and to destroy any information in his databases about the material.

“That language is not only the right thing to do policy-wise but puts the government in a position to prosecute him,” former CIA general counsel Jeffery H. Smith told the Post.

Smith added that anyone who has “unauthorized possession of information relating to national defense” can be prosecuted under the Espionage Act if that person believes the information can harm the United States if published and “willfully” keeps it after the government has demanded its return.

Although some legal experts have expressed doubt about whether Assange actions would fit the “willful” section of the Espionage Act, a 1944 Supreme Court  decision in Hartzell v. United Stateswhich defined “willfully” as someone who “deliberately and with specific purpose to do acts prohibited by Congress” would seem to pave the way for a criminal prosecution of Assange.

Writing for The Daily Beast, Stephen L. Carter made the following observation in light of theHartzell decision: “This approach easily sweeps Assange and WikiLeaks into its ambit. Assange can hardly pretend to lack the intention of disseminating secrets to people not entitled to possess them. Nor, given the responses to his earlier publications, can he seriously argue that he was unaware of any potential harm.”

Having concluded that Assange could definitely be prosecuted under the Espionage Act, Carter then asked the rhetorical question: Should we prosecute Assange?

“We might well be able to convict Assange,” Carter wrote. “But it’s a bad idea. Let us concede that the various documents he has released have done a lot of damage. He cannot plausibly claim that his actions were necessary expose some major government conspiracy or cover-up; this is not the Pentagon Papers or Watergate. In this sense he is a nihilist, driven by no serious theory of governance or intentional relations, other than the creation of controversy. What Assange has done is little different from a person who illegally obtains the tax returns of leading journalists and posts them online showing how much money each earns, and from whom, and where each gives it away, all in order, he might say, to demonstrate their biases. Such an individual is worthy of condemnation, not celebration.

“But acting callously, or self-interestedly, or narcissistically ought not be criminal, particularly when what is involved is, undeniably, speech. We should be deeply troubled by the notion that our government might be devising schemes to prosecute people for what they have said or written. The old cases had it right. Shouting ‘Fire!’ in a crowded theater. Publishing the movements of troop ships in a time of war. Other than speech of that level, the only people who should be punished for disclosing secrets are those who have promised—in exchange, say, for government employment—not to do so.”

We agree, and would offer more concrete reasons Assange’s activities should be protected in any country, especially America, that treasures the values of robust free speech and press.  Assuming Assange was not involved in the illegal procurement of the documents, the intentional deception, lies and criminal conduct by the U.S. Government and its agents over the past decades in the conduct of its wars and foreign policy argue for the publication of this material, which seems to generally support allegations made by government skeptics on both sides of the political isle on many different issues.  It is just this sort of transparency that is needed to shine light on the dark workings of our government, which, after all, does still belong to the people.  Contrary to most of the opponents of WikiLeaks, who point to the potential dangers of the release of this information, the reality is that these documents do more to embarrass our government and the hypocrisy in which we conduct the most serious of our affairs.  This is the real reason the government’s reaction is so bellicose.

In reality, Assange, who is not a U.S. citizen and owes the U.S. Government no statutory or contractual obligation not to publish the information he received, has a legitimate interest in publishing these documents which clearly illustrate that the U.S. Government has often lied to its citizens and to the world community, a news worthy topic that any credible reporter would feel compelled to publish.

In the wake of the 9/11 terror attacks in New York, former President George W. Bush, with the avid support of Congress, both Democrats and Republicans, and with the overwhelming blessing of the American people, declared a “war on terror.” What Bush—nor any of his underlings, like Vice President Dick Cheney or Defense Secretary Donald Rumsfeld or CIA Director George Tenet or Attorney General John Ashcroft or FBI Director Robert Mueller—told the American people was that the war would include secret prisons, torture, kidnappings of citizens of other countries, murder, and assassinations.

Within a year of the “terror war” declaration, the CIA and its army of specialized contractors had effectively transformed America into a “rogue state” violating virtually very recognized tenet of warfare, international treaties, and national and international laws governing a country’s treatment of prisoner’s captured during wartime. The President of our United States of America declared water boarding—an inquisition technique which had been recognized by this country and all civilized nations for centuries as a brutal torture method to extract confessions—as nothing more than “an enhanced interrogation technique.”

Then our intelligence and law enforcement agencies joined forces to spy on everyday law-abiding Americans as though they had committed acts of terror against our country. People of the Islamic faith and anyone with a Middle Eastern accent or descent, who were living law-abiding lives, were subjected to racial profiling, employment harassment, deportation for non-legitimate reasons, and social ostracism by our own government and most of the nation’s Christian evangelicals. Innocent “terror suspects” were locked away in severe military detention for years (without counsel or any constitutional/civil rights) based on no more evidence than their names had been disclosed during torture sessions against other “terror suspects.”

The arrogance and lawlessness with which our nation waged the “war on terror” during the Bush-era provided people like Julian Assange with a motive to expose our country’s hypocrisy, including disclosing our “secrets,” to show the world that the “emperor has no clothes.” Whatever damage Assange may have done to our “national security interests” with his classified disclosures, it was trivial compared to the damage done by the way the Bush administration waged its “war on terror.” We lost thousands of lives, suffered incomprehensible casualties, watched our economy titter on the verge of collapse, spent billions to improve security only to see luck and terrorist stupidity prevent terror attacks against this country rather than our own security systems, and not only exhausted all the international goodwill we enjoyed in the wake of 9/11 but created so much contempt and hatred for America that our enemies are now as many and as strong as Roman legions.

The WikiLeaks disclosures are the price this nation is paying because of its international policies which were too often driven by official lawlessness, contempt for other peoples and cultures, and an arrogant abuse of power rather than respect and honest discourse. This was evidenced in a November 8th primetime interview in which former President Bush told NBC’s Matt Lauer that he authorized the use  of “water boarding”  on several terrorist suspects after he was informed by intelligence agencies that the suspects possessed credible information about possible terror attacks against the United States. In fact, the former president, who is promoting his memoirDecision Points (Random House 2010), is being widely quoted in the media as having said “damn right” when the intelligence agencies sought “water boarding” authorization.

But the former president was not as cocky and cavalier about the subject during the interview with Lauer. He told the Today Show host that he in fact approved what he had always referred to during his presidency as an “enhanced interrogation technique” only after U.S. Justice Department attorneys advised him that it was “legal” to do so. Although Bush still maintained in the Lauer interview, as he did throughout his presidency, that he does not consider water boarding a form of torture, he would not directly answer Lauer questions about whether other countries should enjoy the same authority to water board captured Americans.

The simple, undeniable fact is that we tortured people. Former CIA Director Michael Hayden told the Senate Intelligence Committee in February 2008 that this nation’s intelligence agencies (namely, the CIA) water boarded only three individuals: 9/11 mastermind Khalid Sheikh Mohammad and two other senior al Qaeda leaders, Abu Zubaydah and Abd al-Rahim al-Nashiri. Bush seem to suggest in the Lauer interview that Zubaydah, who was reportedly water boarded approximately 80 times, wanted to cooperate with American authorities but felt that he had an religious obligation to endure a certain level of torture before actually providing information against his al-Qaeda colleagues. In effect, Bush surmised, Zubaydah actually encouraged his own water boarding so he could honor the obligations to his religion not to “give up the ship” without first enduring some pain and suffering.

United States law, 18 U.S.C. Sec. 2340, prohibits torture which is defined as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” In order for the Government to make a case of torture under Sec. 2340, it must prove 1) that the torture occurred outside of the United States; 2) that the person who carried out the torture is a United States national; and 3) that the person who carried out the torture is in the United States, regardless of the nationality of either the torturer or the victim of the torture. These same elements apply to those who conspire to carry out torture.

U.S, Justice Department attorneys authorized the CIA to use ten interrogation techniques on terror suspects, including water boarding. Water boarding was defined by these attorneys as a suspect being bound tightly to a declining board four to seven feet in length with his feet elevated, and a cloth place over his forehead and eyes. Water is then poured over the cloth as the cloth is lowered to cover the nose and mouth restricting the suspect’s air flow and increasing the level of carbon dioxide in his blood. The increased level of carbon dioxide produces a suffocation-drowning effect forcing the suspect not to breathe any water into his lungs. The water pouring continues for 20 to 40 seconds before the cloth is removed and the suspect allowed to take three or four full breaths. The process is repeated, and repeated, and repeated during 20 minute sessions.

Now if that is not “torture” within the meaning of Sec. 2340, then it would be difficult to fathom exactly what physical “pain and suffering” would qualify. In his excellent book The Perfect Storm(W.W. Norton & Company 1997), Sebastian Junger described in incredible detail the experience of drowning: “The instinct not to breathe underwater is so strong that it overcomes the agony of running out of air. No matter how desperate the drowning person is, he doesn’t inhale until he’s on the verge of losing consciousness. At that point there’s so much carbon dioxide in the blood, and so little oxygen, that chemical sensors in the brain trigger an involuntary breath whether he’s underwater or not. This is called the ‘break point’; laboratory experiments have shown the break point to come after 87 seconds. It’s a sort of neurological optimism, as if the body is saying, Holding our breath is killing us, and breathing in might not kill us, so we might as well breathe in. If the person hyperventilates first—as free divers do, and as a frantic person might—the break point comes as later as 140 seconds. Hyperventilation initially flushes carbon dioxide out of the system, so it takes that much longer to climb back up to critical levels.

“Until the break point, a drowning person is said to be undergoing ‘voluntary apnea,’ choosing not to breathe. Lack of oxygen to the brain causes a sensation of darkness closing in from all sides, as in a camera aperture stopping down. The panic of a drowning person is mixed with the odd incredulity that this is actually happening. Having never done it before, the body—and the mind—do not know how to die gracefully. The process is filled with desperation and awkwardness. ‘So this is drowning,’ a drowning person might think. ‘So this is how my own life finally ends…’

“These thoughts shriek through the mind during the minute or so that it takes a panicked person to run out of air. When the first involuntary breath occurs most people are still conscious, which is unfortunate, because the only thing more unpleasant than running out of air is breathing in water. At that point the person goes from voluntary to involuntary apnea, and the drowning begins in earnest. A spasmodic breath drags water into the mouth and windpipe, and then one of two things happen. In about ten percent of people, water—anything—touching the vocal cords triggers immediate contraction in the muscles around the larynx. In effect, the central nervous system judges something in the voice box to be more of a threat than low oxygen levels in the blood, and acts accordingly. This is called a laryngospasm. A person with laryngospasm drowns without any water in his lungs.

“In the other ninety percent of people, water floods the lungs and ends any waning transfer of oxygen to the blood. The clock is running down now; half-conscious and enfeebled by oxygen depletion, the person is in no position to fight his way back up to the surface. They very process of drowning makes it harder and harder not to drown, an exponential disaster curve similar to that of a sinking boat.”

Water boarding interrogators take a tortured suspect almost to the “break point” in each dunk into the water only to bring him back to the surface for a few seconds to inhale just three or four precious breaths of oxygen before forcing him back under the water. While Justice Department attorneys said these interrogation sessions could last no more than 20 minutes, there is no way to know exactly how long they really lasted. Videos of the sessions were destroyed along the way. The point is that each suspect was led to believe that each dunk into the water would be his last, and even though the suspect was snatched back from the “break point” each time, he never knew when a particular dunk would be his last, when the “drowning process” would actually be carried to its final end.

That’s torture—and we don’t care how the former president defines it or that his Justice Department attorneys authorized it. Subjecting someone to the repeated “drowning process” is torture.

In 1994 this country ratified a treaty titled “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”  Torture was defined by that treaty as “ … any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” … when it is “inflicted by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity.”

In other words, America joined the international community in saying that presidents, dictators, military leaders, and other government officials do not have the authority to either carry out torture or authorize it, regardless of who may say they have the legal power to do it. While former President Bush may not consider water boarding as torture, University of Pennsylvania historian Ed Peters in 2007 told National Public Radio that the interrogation technique known as the “water cure” or tormenta de toca has been a “normal incident of law [enforcement]” in the effort to extract confession from suspects before the period of Enlightenment.

NPR reported that Americans first used the water boarding torture technique during the Spanish-American War. At least one American soldier was tried and convicted for using what an Army judge called “torture.” Again 1947 the United States convicted a Japanese officer named Yukio Asano for using water boarding on American civilians during World War II. And, finally, in 1968 the Washington Post published a photograph of a U.S. soldier supervising the water boarding of a captured North Vietnamese soldier. The caption under the photo said the water boarding produced “a flooding sense of suffocation, drowning, meant to make him talk. The Army conducted an investigation and two months later court martialed the American soldier shown in the photo.

Torture is a subject matter we have devoted considerable space to because we believe that the rule of law must prevail even in the face of a threat of terrorism. For those who do not share this point of view, or who believe as the former president that water boarding is not torture, we would pose this hypothec. Let’s say a right-wing group of evangelical Christians based in the densely wooded areas of Michigan decided to declare a “holy war” against Muslim nations and orchestrated terror attacks against one of these nations—let’s say Saudi Arabia. The Saudi intelligence agency, Inter-Services Intelligence, sent a team of agents to Michigan, kidnapped an American citizen suspected of being involved in the attacks, flew him to a secret prison, and water boarded the suspect to get information out of him about possible future attacks by his Christian brethren.

Would most Americans be outraged? Would they consider the water boarding of an American citizen kidnapped from this country as an act of torture? You bet they would! And most of the people lined up in the outrage line, demanding immediate retaliation against the Saudi government, would be the very supporters of the Bush policy to use water boarding as an “enhanced interrogation technique” against Muslim terror suspects.

Now as to the question of whether there is a legitimate case against former President Bush, and his legal advisers, that remains a hotly debated topic. While we are not prepared to draw a firm legal conclusion about whether the former president could be held liable for acting on advice given to him by Justice Department attorneys, we do firmly believe Bush understood pragmatically, historically, and morally that water boarding is a form of torture. The fact that he had to seek and secure legal advice to authorize its use is prima facie evidence that he understood it was torture and was looking for a way to circumvent its legal prohibitions.

The Obama administration has made it clear that it will not investigate or prosecute anyone for torture committed under the Bush administration. That’s why we see the criminal investigation and potential prosecution of Julian Assange by the Obama administration as hypocritical. By failing to investigate the issue of torture committed during the Bush-era “war on terror,” the Obama administration effectively gave the torturers legal immunity. The same legal immunity should be extended to Assange. He did not steal (or download) the classified material. He simply published it, and while we believe those actions are contrary to American interests, they do not warrant prosecution under the Espionage Act. Assange’s WikiLeaks disclosures are in no way comparable to the illegal acts committed by officials at the highest levels of government during the Bush-era “war on terror.”

We could care less what happens to Assange in Sweden. That’s between him and the legal system of that nation. What we find difficult to understand is that our Government, which had admittedly engaged in torture, is now gearing up to prosecute someone whose only indiscretion is publishing classified material—conduct that is arguably protected by the First Amendment as many prominent constitutional scholars suggest. That’s like sending Barry Bonds in as a pinch hitter in a “pee-wee” baseball game. It smacks of arrogance, unfairness, and an abuse of power. The fruit in the Julian Assange prosecution market is rotten. And we want no part of it.

Better yet, if the U.S. Government would act with honor and discretion in its actions at home and abroad, giving reverence to the words expressed in our Declaration of Independence and Constitution, there would be nothing for those like WikiLeaks to report.  The struggle for American Empire forces corruption and, eventually, downfall.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair