Wednesday, December 1, 2010
And this AP write up explores a bit more, concentrating on the question of whether or not Brave Sir Julian's outfit can be properly described as a journalistic organization.
Nations arrest try and convict spies from sovereign states, as the U.S. has obviously done in the past, so it would hardly be a surprising development if Holder and company did the same with Assange, but a bit different because he is an agent of no state. He is a bit like an AQ agent in that regard. He is a non-state actor.
The question is, which covering law would be best suited to the purpose trying and convicting Asschapeau while surviving the test of the inevitable judicial proceedings, producing a conviction. Is the 1917 act the best one for that purpose, given the subsequent history of Supreme Court decisions? I would suggest Gabe Schoenfeld's "Necessary Secrets" as a good primer on the difficulties. It might be easier to base a case on the fact that he is either engaging in theft or knowingly in receipt of stolen of government property.
Be that as it may, there is much consternation in the two pieces linked above, I think, because there are some fundamental confusions within and between at least three categories of entity, i.e.,
1. confusions regarding the applicability of constitutional protections covering U.S. citizens, as contrasted with said protections as applicable (and IF applicable) to non-citizens,
2. a confusion regarding constitutional protections applicable to U.S. Media outlets as contrasted with those (if any) provided to foreign press entities,
3. a confusion between the moral status or morally justified protections granted traditional journalists and journalistic outlets, and the moral status and consequent protections deserved by entities such as Wikileaks.
In regard to #1 and #2: Suppose Brave Sir Julian attempts a 1st Amendment defense of his actions. Why not argue that the Constitution, while reflective of what we believe are the natural rights of all humans, does not extend the U.S. government's protection of those rights to persons who are not U.S. citizens. Being a legal citizen of Australia, The Pallid Knight must depend for that protection, on that entity, should it decide to undertake that defense. [Don't count on it there Bud.]
Additionally: all previous attempts to use the Espionage Act were in efforts to prosecute U.S. citizens who provided the U.S. press with classified information, indicating that the law was intended to deter U.S. citizens, and apply only to same. Given that is the case, all of the difficulties introduced by subsequent Supreme Court opinions exist because in those cases the value of a free American press for purposes of maintaining an informed American public was given great weight. Because each case involved a U.S. journalistic entity, cautions were taken. This would argue toward either revising the Espionage act to take into account foreigners, or reliance for legal action on other laws not so tightly bound by domestic and constitutional restrictions.
In this case, while the N.Y Slimes did receive the stolen information, it received it from an organization that is outside the U.S., at the head of which is Brave Sir Julian, not a citizen. So, in the interests of preserving the domestically vital role of U.S. press, a revised act might be cited, only in reference to WkLks, with the auxiliary argument that WkLks, not being a U.S. entity, is not entitled to the constitutional protections that the Slimes is entitled to. [Indeed a case can be made that the Slimes did knowingly receive government property, classified information, which it published, and is therefore in violation of the act, but, as the Pentagon papers case showed, the prospects of such a prosecution succeeding are not good.]
In regard to #3: Wikileaks seems to think it is a journalistic outfit because it provides information, allowing for well informed citizens of the world. However, there are some obvious disanalogies. Wikileaks indulges in highly misleading or perhaps leading packaging of its information. It enables illegal activity. It does little to provide context, and does not make but the weakest of efforts to approach the states whose documents it dumps, in an effort to mitigate collateral damages. Because it makes no real efforts in this regard, it has recklessly endangered innocent lives with its two military related docu-dumps.
Now, I am prone to think U.S. media has shown less than adequate regard for these sorts of things, BUT they at least do make the effort, and DO sometimes hold off on publishing when requested, subsequent to hearing out governmental entities that have concerns about their operations and possible impact on national security. Wikileaks, to say it again, makes no such pretenses, and only started its half-hearted efforts at editing document after it had released the Afghan documents, and had been called on the carpet for providing the barbarian with a virtual hit list. In short, they were and are inexcusably and dangerously amateurish.
What I am arguing here, from the moral perspective, is that there is an obligation, on the part of states to reciprocate respect for roles vis-a-vis ostensibly responsible press entities. Because more traditional media outlets do show a level of respect for governmental entities, and do sometimes acquiesce in their expertise and requests for delay of publication they are deserving of some consideration. The government, in turn has a moral obligation to reciprocate a similar level of respect for the role of the press, as a supply of information for a healthy democracy, in essence cutting some slack. Something like this line of thought is probably an aspect of the curious lack of stomach the U.S. government has had with regard to prosecuting domestic leakers.
However, where that respect is not reciprocated, there is no moral case to be made that the U.S. government needs to treat the (alleged) press entity with the same respect it accords entities such as the Slimes.
An encouraging case is vignette #3 "US Marine Advisors in the Tagab Valley,
Kapisa, 2008" We see in this case, a unit of the Afghan Army taking the initiative to win the trust and cooperation of locals in a central and key valley, undertaking civil actions that in effect cleared the area of insurgents without high levels of kinetics being necessary. This allowed them to subsequently hold that central valley, and clear several smaller valleys radiating perpendicular from the Tagab, from within which insurgents harried the ANA forces. In short: With the help of Marine advisors, the ANA took the reigns and was able to clear and hold AND provide cash crop alternatives for the locals (mellow yellow included). All in all a promising model.
Here is the entire vignette:
From April to November 2008, a group of US Marine advisors worked with the
Afghan National Army (ANA) to clear, hold, and build the southern portion of
the Tagab Valley, east of Kabul. The ANA’s 201st Corps, 3rd Brigade had sole
responsibility for the area. Afghan Soldiers managed to stabilize the valley with
minimal coalition support.
The ANA planned and led the operations in southern Tagab, but Marine advisors
were involved at every level of command, from the corps (division) level down to
the kandaks (small battalions) on the ground. The Marine advisors also pushed
for the operations, and convinced the ANA that they would succeed.
The southern Tagab Valley was a stronghold of Pakistan-based insurgents responsible
for numerous large-scale attacks in eastern Afghanistan. Enemy fighters
moved freely through the area and controlled the population. There was no
government presence there in 2008.
The case of Tagab in 2008 is significant because for the first time, the Afghan
Army managed to seize ground from the Taliban and hold it with little coalition
assistance. The success of the operations demonstrated that battle space can be
transitioned to Afghan units, provided they are ready and have good leadership.
The struggle over the Tagab
When the Marines arrived in April 2008, the Tagab Valley was considered a nogo
area where insurgents moved freely. Enemy fighters moving into the valley from
the east posed a threat to Kabul, Afghanistan’s capital city. Rival militias seeking
to control the eastern approach to Kabul had fought over the valley constantly
during the 1990s civil war, when the valley changed hands about ten times. Its residents had a reputation for cooperating with whichever outside force happened
to be stronger at the moment.
The southern part of the Tagab Valley was almost entirely Pashtun. There was no
functioning government there; nor were there any reconstruction projects. Poppy
farming and timber smuggling were prevalent and insurgent influence was strong.
Local warlords provided Pakistan-based insurgent groups with local fighters. The
northern part, on the other hand, was mostly Tajik. In northern Tagab, there was
a functioning government and substantial coalition presence. The Tagab district
governor was a Tajik distrusted by the Pashtuns to the south.
There had been several operations to clear the southern Tagab in 2005, 2006,
and 2007. In 2005, US forces pushed into the valley, forcing the insurgents to
flee to nearby valleys and into Pakistan. The Soldiers then left, and the insurgents
returned as strong as before.2 In 2006, US forces cleared through the valley a
second time and left Afghan police behind to hold the area. Insurgents over-ran
the police posts in 2006, and again in 2007—after which the police refused to
man the positions. In 2007, the Taliban claimed full control over southern Tagab.
The ANA goes in
In May 2008, Afghan Soldiers and police with US support launched a large-scale
poppy eradication operation in Tagab district. Afghan Soldiers moved with the
police up the valley, providing security while the police destroyed poppy fields.
Barely a shot was fired as about 250 Afghan Soldiers and police moved through
the valley in four-wheel-drive trucks.
No forces were left behind after the poppy eradication operations. The campaign
involved sweeping through the valley, destroying poppy crops, and then
leaving. The ANA and their advisors later decided that if they could move
through the valley with so little resistance, they might be able to hold it and
even begin reconstruction.
The Marine advisors believed that, given past precedent, the police would not be
able to hold the valley on their own. The ANA would have to set up permanent
bases and patrol the area indefinitely, with the police in a supporting role. The Marines managed to persuade the US military command to give the Afghan Army sole responsibility and operational control over southern Tagab. In June and July, the ANA started moving forces and supplies to the southern mouth of the valley. The
plan was to move from there into the southern part of the valley, set up
a forward operating base, and push farther north, setting up patrol bases at the mouths of smaller valleys leading into the southern Tagab. At the same
time, another group of ANA and their trainers pushed south from the Tajik areas
in northern Tagab.
In September 2008, ANA engineers improved the road to the southern mouth of
the valley. They also built a bridge over the Naghlu River. They then began pushing
slowly into the valley itself, improving the road as they went. Their intention
was to eventually pave the road through the valley, opening up a shorter route between Pakistan and Central Asia that would bypass the treacherous Jalalabad Pass.
The ANA engaged with the villages along the river, built patrol bases, and began small-scale reconstruction projects. Despite occasional harassing attacks by the insurgents, most of whom were hiding in smaller side valleys, the Afghan Soldiers did not go after them. The ANA built a forward operating base in the southern part of the valley, and smaller checkpoints along the valley floor. The focus was not on clearing the area, but on establishing bases, securing the road, engaging with the population, and beginning reconstruction. It was common knowledge that insurgents operated in significant numbers in the side valleys. But, as long as violence remained low, the ANA and their advisors were willing to leave the insurgents alone. Some of those working for the insurgents were related to local leaders cooperating with the ANA. Afghan Army officers and their advisors believed that if they built enough support, those working for the enemy would eventually switch sides.
The Afghan Soldiers held shuras in each major village along the river. The ANA
brought trucks full of food, clothes, and other supplies to distribute as they went.
There were also Afghan dentists and medics who provided some basic medical
care. As they moved farther into the valley, they gained momentum. The shuras
got bigger and the population more welcoming.
The ANA led the shuras; the Marine advisors did not speak. Each Afghan Army
kandak had a religious affairs officer who was a trained mullah (a teacher of the
Holy Koran). These men doubled as political officers and did most of the talking.
They told villagers that poppy growing was not allowed in Islam, and promised
the people reconstruction projects in exchange for cooperation.
The ANA, with the Marines’ help, executed many reconstruction projects in
southern Tagab—especially well construction and medical missions. They also
helped the valley’s people export pomagranates and saffron. Local farmers had no
access to cold storage and so had to sell their fruits immediately. Most of the fruit
went to Pakistan where it was stored in refrigerated containers, then exported
back into Afghanistan at a 300 percent markup. Subsequently, people from villages farther afield began coming down to the ANA bases and asking for similar projects. Some asked the Afghan Army to put patrol bases near their villages. In October, Afghan Soldiers pushed patrols into some of the side valleys where insurgents were operating in greater strength than in the main valley. By November, the main insurgent group in the Tagab began pulling out of the valley, apparently believing that they had lost the support of the population.
The United States can learn important lessons from the operations in the Tagab
Valley, including how US forces might eventually transition battle space to Afghan
units. Even after combat forces withdraw, there will still be a need for advisors
at multiple levels of command, including on the ground with the kandaks.
US Marine advisors have developed a model for readying units for independent
operations and transitioning battle space to Afghan control. For the Marines, the
entire purpose of the operations in the Tagab was to transition the battle space to
Afghan control, with as little coalition support as possible.
The idea was to give the ANA responsibility over a discreet battle space where
there were no strong US or NATO units to overshadow the Afghan Army, and
to hold the ANA accountable for what happened there. The hope was that if the
ANA succeeded in southern Tagab, there would be greater impetus elsewhere
to hand over control to the Afghan Army. As far as the advisors knew, there was
no strategic plan in 2008 to transition battle space anywhere in the country to
Afghan control. It was not a priority for the command in Afghanistan, where the
focus was on fighting the insurgency with US and NATO forces.
The success of the operation was due to many factors—among them strong leadership at the brigade and kandak levels, effective Marine advisors at each level of command, the absence of other US or NATO combat units, and the fact that the Afghan Army owned the battle space. The ANA was on its own; it was forced to either operate independently or fail.
How different units adapted to local conditions
When working with the Afghan Army, the tendency among most US and
NATO forces was to engage in partnering. In practice, this usually meant US
units planned and led the operations, with Afghan forces in a subordinate, supporting role. Partnering, which gave little responsibility or latitude to the ANA,
often created undue dependency on foreign forces and stifled the ANA leadership,
discouraging them from taking the initiative or assuming responsibility. This
was especially true among more developed Afghan Army units that had the capability to operate independently but rarely did so.
According to several advisors, many US and NATO forces operated with the
attitude that they owned the area under their control. Those forces did not trust
the ANA and shut them out of the planning process. Often, they used Afghan
units to achieve tactical objectives without any consideration for the long-term
development of the force.
In the Tagab, US Marine advisors did not merely partner with Afghan Soldiers
for operations, and return to their base for the night. The Marines were embedded
advisors who lived and worked with Afghan officers and accompanied them
on every patrol. The Marines believed they were particularly well-suited to train
Afghan Soldiers as light infantry—due in part to the Marine culture of “every
Marine a rifleman.”
The advisors’ role was completely different from the roles of other US and NATO
forces. The advisors’ mission was to ensure that the ANA was used in a way that
developed their capability to operate independently. The advisors also provided
resources not available to the ANA and backup if they needed it. These included
quick-reaction forces, artillery and air support, and casualty evacuation.
The Marines quickly learned that the ANA’s weaknesses were in organization,
planning, and logistics. The ANA rarely had the resources to sustain itself in
long operations; they needed substantial logistical support. There were also problems with retention, due to long deployments away from home, low pay, and poor working conditions. Individual Afghan Soldiers were of high caliber, and operated well in small units—especially when they had good leaders.
Need I say read the whole thing?