Rosenberg Fund for Children

Julian Assange, My Parents and the Espionage Act of 1917

[NOTE: our Recent Press Coverage page has links to media coverage spawned by this blog, including Robert's interviews on Democracy Now!, KBOO Radio, and RTTV (Russian news).]
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Rumors are swirling that the United States is preparing to indict Wikileaks leader Julian Assange for conspiring to violate the Espionage Act of 1917. The modern version of that act states among many, many other things that: “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States” causes the disclosure or publication of this material, could be subject to massive criminal penalties. It also states that: “If two or more persons conspire to violate any of the foregoing provisions … each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.” (18 U.S. Code, Chapter 37, Section 793.)

I view the Espionage Act of 1917 as a lifelong nemesis. My parents were charged, tried and ultimately executed after being indicted for Conspiracy to Commit Espionage under that act.

The 1917 Act has a notorious history. It originally served to squelch opposition to World War I. It criminalized criticism of the war effort, and sent hundreds of dissenters to jail just for voicing their opinions. It transformed dissent into treason.

Many who attacked the law noted that the framers of the Constitution had specifically limited what constituted treason by writing it into the Constituton: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort” (Article III, section 3). The framers felt this narrow definition was necessary to prevent treason from becoming what some called “the weapon of a political faction.” Furthermore, in their discussions at the Constitutional Convention they agreed that spoken opposition was protected by the First Amendment and could never be considered treason.

It appears obvious that the Espionage Act is unconstitutional because it does exactly what the Constitution prohibits. It is, in other words, an effort to make an end run around the Treason Clause of the Constitution. Not surprisingly, however, as we’ve seen in times of political stress, the Supreme Court upheld its validity in a 5-4 decision. Although later decisions seemed to criticize and limit its scope, the Espionage Act of 1917 has never been declared unconstitutional. To this day, with a few notable exceptions that include my parents’ case, it has been a dormant sword of Damocles, awaiting the right political moment and an authoritarian Supreme Court to spring to life and slash at dissenters.

It is no accident that Julian Assange may face a “conspiracy” charge just as my parents did. All that is required of the prosecution to prove a conspiracy is to present evidence that two or more people got together and took one act in furtherance of an illegal plan. It could be a phone call or a conversation.

In my parents’ case the only evidence presented against my mother was David and Ruth Greenglasses’ testimony that she was present at a critical espionage meeting and typed up David’s handwritten description of a sketch. Although this testimony has since been shown to be false, even if it were true, it would mean that the government of the United States executed someone for typing.

But the reach of “conspiracy” is even more insidious. It means that ANYONE with whom my parents could have discussed their actions and politics could have been swept up and had similar charges brought against them if someone testified that those conversations included plans to commit espionage. Thus, the case against my parents was rightly seen by many in their political community of rank and file Communist Party Members as a threat to them all.

Viewing the Wikileaks situation through this lens, it becomes apparent why the government would seek to charge Assange with conspiracy. Not only Assange, but anyone involved in the Wikileaks community could be swept up in a dragnet. Just as in my parents’ case, the prosecutors could seek to bully some involved into ratting out others, in return for more favorable treatment. This divide and conquer approach would turn individuals against each other, sow the seeds of distrust within the broader community, and intimidate others into quiescence.

This kind of attack threatens every left wing activist. I urge all progressives to come to the defense of Julian Assange should he be indicted for violating the Espionage Act of 1917.

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Loving Those Leaks

The NBC News coverage I saw the other day of the latest round of Wikileaks releases got me thinking. One of their regular correspondents stated that “most people disapprove of leaking this material,” but I hadn’t seen or heard of any opinion polls about this. It struck me that the correspondent was not reporting on what people actually thought, but rather was telling people what to think. I realized that after the deluge of stories uniformly condemning the release of this material by almost all mainstream media outlets, polls would be taken, and - big surprise – most Americans would view Julian Assange as the next worst thing to Osama bin-Laden.

Since I’ve watched neither Keith Olbermann nor Rachel Maddow during the last week, I can’t write this with certainty, but having just visited their websites, it appears that even the two leading liberals on TV haven’t risen to Wikileaks’ defense. On second thought, this is hardly surprising, since if you believe the publication of these previously secret documents is a good thing, you probably believe that the established order is a bad thing, and what passes for the left on mainstream TV won’t go that far.

Common sense tells us that a true democracy, that is, one in which people have a real say in the decision-making processes that effect their lives, requires open access to information. A well informed citizenry is an essential ingredient of a democratic society, because people can’t make intelligent choices if they don’t know what is going on. Yet our leaders tell us that our foreign policy must be conducted beneath a smothering blanket of secrecy, and that revealing these “secrets” will undermine our existence. Further, we’re led to believe that all this cloak and dagger maneuvering is required in order to do good! But secrecy breeds corruption, tyranny and distrust. Just look at all the inequality, destruction and death such furtive diplomacy has brought us. I can’t help wondering when the Mad Hatter is going to show up.

I’m glad that I have access to the content of these documents. Lancing this festering diplomatic boil is a healthy development. The biggest problem with the Wikileaks approach isn't releasing these documents, but rather its inability to publish every secret document of every nation. What a revolutionary concept - the people of all nations have the right to know the world’s governments’ inner workings.

Some might claim this would cause war, chaos, or even madness. But given the state of the world and the direction it appears to be heading, the massive paradigm shift this would entail seems worth a try.

Finally, we haven’t heard anything from the tea-party folks about this. Anyone who condemns the leaks is, in effect, saying they don’t have the right to this information and they don’t want to know what is being done by their government behind closed doors. In other words, leave it to the experts and we should trust our officials. Yet, the tea-partiers profess no faith in Washington. They should welcome the disclosures as exposing the corruption they claim they wish to ferret out. I expect their silence will be deafening.

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All or Nothing?

I’ve received such an overwhelming response to my 12/23/10 blog, Julian Assange, My Parents and the Espionage Act of 1917, that I feel compelled to revisit the issue.

Commentaries on the WikiLeaks releases fall into two categories. Those in power condemn them as dangerous terrorist acts that will create mayhem, murder and war, while many on the left, myself included, have in essence said the more, the merrier. But is my position a bit cavalier? Do I really believe that there should be no secrets whatsoever?

First, I do set some limits. Individuals have a right to personal privacy. For instance, we don’t want our hospital records or personal correspondence made public without our permission. While I’m not in favor of wholesale disclosure when it involves people’s private lives, I lean strongly in the opposite direction when it comes to governmental institutions.

In theory our government agrees. Since the passage of the Freedom of Information Act (FOIA) in the 1970’s, it is assumed that the public has the right to know what is in the government’s files. As a citizen, if you want governmental information you can file an FOIA demand and sue if the government does not comply with your request. But it isn’t that simple. You must demonstrate that you have a personal or professional interest in the material, and the government has a list of exceptions (personal privacy, national security, etc.) that provide it with grounds to deny your claim.

My brother and I were precedent-setting plaintiffs in one of the most successful FOIA actions. It started in 1974, when the law was in its heyday and the judiciary was more plaintiff-oriented. It took us over a decade, a national organizing campaign and hundreds of thousands of dollars to force the release of approximately 75% of the material in the government’s possession related to our parents’ case. Still, portions of many files we forced into the public eye had substantial deletions.

Today, the FOIA has been watered down. The Bush Administration’s response to FOIA requests reminded me of Nancy Reagan’s idiotic “just say no” campaign, and the Obama Administration argues that releasing government documents would damage our national security. Moreover, since September 11, 2001 the government has classified as secret a vast array of material. These policies, coupled with the judiciary’s growing deference to governmental secrecy, means that the presumption of openness has been turned on its head.

We’ve all observed so many government excuses for concealing information. Data has been withheld with alarming regularity to hide abuses of governmental power, official dishonesty, stupidity and corruption. This behavior imperils democracy. How can people make informed choices without access to information that details governmental actions?

But don’t governments have the right to keep some secrets? I might feel differently about allowing the government to conceal its files if a system could be devised that would give the public sufficient control over the bureaucracy to insure that only material that really required classification was kept hush-hush. I’m unaware of any government that has created such a system and I suspect it is an impossible task.

There are those who cite delicate diplomatic negotiations as examples of needed secrecy. But that’s what we have now. Current world diplomatic relations hardly provide a shining example of cloak and dagger success. Of course, since all nations keep secrets, and many engage in covert operations to undermine each other, any totally open country would be vulnerable to a range of attacks and assassinations by other countries.

Do progressives only want the disclosure of the world’s great imperial power’s clandestine activities, or do we apply an openness standard to all nations equally, regardless of how we feel about their policies? The answers to these questions are not simple, but in any case, politicians, generals, and diplomats are more likely to simultaneously shed their clothes in public than they are to reveal their secrets. But that does not mean that increased openness is not a laudable goal to strive for.

Over the past 30 years the pendulum has swung so far in the direction of non-disclosure that I now applaud any spilling of governmental confidences. Abuses of human and civil rights have grown so rampant that whatever damage exposure will cause can’t possibly match what has been done behind closed doors and dungeon walls. International relations are a dangerous mess. I favor airing the dirty laundry and nasty tricks, even if it risks some chaos in an attempt to clean house.

WikiLeaks won’t and can’t expose all secrets in any event. Maybe if we had the power to open every file and reveal every message we might have to set limits. But given the present climate, arguing over whether governments should have the right to keep any secrets when non-disclosure is the rule, is like someone who is groping through a pitch-black cavern worrying about being unable to sleep if we turn on too many lights. A bright beam of truth would be a welcome relief.

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Support Bradley Manning

Last week I joined the Advisory Board of the Bradley Manning Support Network. I sought them out not only because it is a honor to join a Board that includes Medea Benjamin of Code Pink, as well as Daniel Ellsberg of Pentagon Papers fame, and filmmaker Michael Moore, among others, but also because I believe it is imperative for as many people as possible to raise their voices in support of Manning.

Private First Class Manning is accused of being the source of the huge number of secret diplomatic cables, field intelligence reports, and at least one military video published by WikiLeaks. He was held without charge for nine months in the brig at Quantico Marine Corps Base in Virginia, isolated for 23 hours a day in “Maximum Custody and under Prevention of Injury Watch.” I believe that the conditions of his imprisonment, including the Abu Ghraib style humiliation of being forced to strip and surrender his clothing nightly, amounted to torture. Manning’s rights were violated further when President Obama, the military’s commander in chief, declared Manning guilty. Since Manning faces a possible court martial by military officers, all of whom are under Obama’s command, this makes it impossible for him to receive a fair trial.

I have several reasons to aid Private Manning.

The first is my commitment to the concept of Freedom of Information. Bradley Manning has been imprisoned and threatened with death for providing the truth to the American people. In the words of Daniel Ellsberg: “If Bradley Manning did what he’s accused of, then he’s a hero of mine.” The free flow of information is absolutely essential to a functioning democracy. Since 2001, the burgeoning “National Security State” has made it almost impossible for voters to make informed choices.

The people’s right to know what their government is doing has been at the core of my activism for almost four decades. It was no accident that my brother and I chose to sue under the newly toughened Freedom of Information Act (FOIA) when we commenced our campaign to reopen our parents’ case in 1974. Reporters asked if we were worried that the material in the government’s files we sought would point to Julius and Ethel Rosenberg’s guilt rather than their innocence. We answered without hesitation that while we hoped the material would exonerate our parents, the public’s right to know was more important than the vindication of our beliefs. My brother and I spent 10 years of our lives fighting that case in the name of the public’s right to know. The attack on Bradley Manning is an assault upon this right and must be resisted.

Also, I am virtually certain that the cruel and inhumane conditions Manning was subjected to in the Marine Base brig were designed to coerce him into testifying against Julian Assange and the Wikileaks community. In other words, the government wanted Manning to become the David Greenglass of the Wikileaks case. In my parent’s case the government offered David Greenglass a deal in return for falsely testifying that my parents engineered Greenglass’s theft of what the government called “the secret of the Atomic bomb,” even though my parents did not participate in that theft and there was no such secret. Similarly, the government sought to use Manning as a pawn to spark a conspiracy trail against Julian Assange and his associates in order to expand the security state and inflame public fear that hackers threaten our national security.

Finally, it is reported that Bradley Manning may be charged with violating the Espionage Act of 1917, and face the death penalty if he is convicted. That’s the same penalty my parents received for violating that act.

Under such circumstances, how could I stay away! For more information about the Bradley Manning support network go to: http://www.bradleymanning.org/

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Bradley Manning: The Judiciary’s Shame

Earlier this week I read that Bradley Manning’s lawyers have moved that the charges against him be dismissed on the grounds that he has been subjected to “unlawful pretrial punishment” and “unduly onerous confinement conditions.” Manning provided testimony in court on Tuesday in support of this motion. (http://usnews.nbcnews.com/bradley-manning)

Manning was held without charge for nine months in the brig at Quantico Marine Corps Base in Virginia. He was in isolation for 23 hours a day, and faced among other things, the Abu Ghraib-style humiliation of being forced to strip and surrender his clothing nightly. A United Nations investigator determined that these conditions were cruel, inhuman and degrading. I am convinced that the extremes to which Manning was subjected in the Marine Base brig were designed to destroy his spirit and coerce him into testifying against Julian Assange and the Wikileaks community.

It is obvious to me that the government’s mistreatment of Bradley Manning warrants the dismissal of the charges against him. Unfortunately, it is equally clear that despite the strength of Manning’s claims, the military courts will determine that his trial should go forward. Moreover, it is unlikely that anyone will ever be called to account for violating his human rights.

Beyond that, I suspect that Manning ultimately will be convicted. After all, the nation’s Commander in Chief, President Obama, has already declared him guilty. We can only hope that he is not given one of those excessively long sentences that almost inevitably follow when individuals take courageous acts of conscience that expose the criminal behavior of those in power.

So, in all likelihood, Manning will stay in jail and those who should be punished will remain free. Manning should have been given a medal rather than endure over two years of confinement, an impending trial and a likely prison sentence. Instead, those responsible for the crimes he exposed should be imprisoned and those who established the terms of his detention should be on trial. But it shouldn’t stop there. The magistrates, who claim to act with integrity, but instead preside as overseers of an unfair system, should be censured. The American system of injustice, be it civilian or military, has reached such a sorry state that the robes of many judges have become mantels of shame rather than symbols of honor.

Although I do not practice in court, as a lawyer I am acutely aware of and have the most profound respect for attorneys who continue the fight for human rights when the courts are stacked with judges who continence abuses and ignore torture. I know that our terrible system would be even worse without these legal fighters. Perhaps the few of them who comprise Bradley Manning’s defense team will pull off a miracle, and this young man, who should be hailed as a hero, will once again be free.

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Bradley Manning: Nobel Laureate?

Normally, I don’t use my blog solely to reprint material posted by others, but both the importance of Bradley Manning’s case and the connection I feel to it compels me to do so in this instance. A post from Rootsaction.org follows below:

Whistleblower Bradley Manning has been nominated for the Nobel Peace Prize, and he should receive it.

Let's help make that happen.

No individual has done more to push back against what Martin Luther King Jr. called "the madness of militarism" than Bradley Manning. And right now, remaining in prison and facing relentless prosecution by the U.S. government, no one is more in need of the Nobel Peace Prize.

Alfred Nobel's will left funding for a prize to be awarded to "the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses."

The intent of the prize was to fund this work. As a result of enormous legal expenses, Bradley Manning is in need of that funding.

Click here to help him get it.

The people of the United States and the rest of the world have learned more about the intentions of the U.S. government from Bradley Manning than from anyone else.

"Thanks to Manning's alleged disclosures, we have a sense of what transpired in Iraq and Afghanistan. We have an image of how Washington operates in the world," author Chase Madar wrote in his book about Manning's whistleblowing.

Just a few of the results: "Thanks to those revelations we now know just how our government leaned on the Vatican to quell opposition to the Iraq War. We now know how Washington pressured the German government to block the prosecution of CIA agents who kidnapped an innocent man, Khaled El-Masri, while he was on vacation. We know how our State Department lobbied hard to prevent a minimum wage increase in Haiti, the hemisphere's poorest nation."

Manning revealed a secret U.S. war in Yemen, U.S. records of massive civilian deaths in Iraq and Afghanistan, video of a U.S. helicopter attack on civilians and their rescuers in Baghdad, and facts about the corruption of numerous governments including those of the United States, Tunisia, and Egypt. In those last two nations Manning's revelations contributed to nonviolent pro-democracy movements.

While Manning sits in prison under dire conditions, we can let the Nobel committee know that we support his nomination for the Nobel Peace Prize.

Among the revelations made by Manning through WikiLeaks is the extent of time and energy the U.S. State Department puts into marketing U.S. weapons to the world's governments. We all have a better understanding of the work that is needed for peace as a result of this exposure of "diplomacy" as consisting so greatly of weapons selling.

The Guardian newspaper and BBC Arabic detailed last week how the United States armed and trained Iraqi police commando units that ran torture centers and death squads. Maggie O'Kane, executive producer of the documentary, said: "I hope this film will be a legacy that actually says, 'If you want to go to war, this is what war means. It means 14-year-old boys being hung up and tortured. It means men being turned on spits. And that's called counter-insurgency. . . .' This would not be coming to light if it hadn't been for Bradley Manning."

Let's help someone who's earned it to receive the Nobel Peace Prize.

Please forward this email widely to like-minded friends.

-- The RootsAction.org team

P.S. RootsAction is an independent online force endorsed by Jim Hightower, Barbara Ehrenreich, Cornel West, Daniel Ellsberg, Glenn Greenwald, Naomi Klein, Bill Fletcher Jr., Laura Flanders, former U.S. Senator James Abourezk, Coleen Rowley, Frances Fox Piven, and many others.

Background:
Audio of Bradley Manning's statement in court.

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