• Kidnapping, Torture, Assassination, and Perjury Are No Longer Crimes in Washington

    April 23, 2014 // 8 Comments »

    (This guest blog post, by Tom Engelhardt, originally appeared on TomDispatch and is reprinted both by permission, and also because it is worth reading.)

    How the mighty have fallen.  Once known as “Obama’s favorite general,” James Cartwright will soon don a prison uniform and, thanks to a plea deal, spend 13 months behind bars.  Involved in setting up the earliest military cyberforce inside U.S. Strategic Command, which he led from 2004 to 2007, Cartwright also played a role in launching the first cyberwar in history — the release of the Stuxnet virus against Iran’s nuclear program.  A Justice Department investigation found that, in 2012, he leaked information on the development of that virus to David Sanger of the New York Times. The result: a front-page piece revealing its existence, and so the American cyber-campaign against Iran, to the American public.  It was considered a serious breach of national security.  On Thursday, the retired four-star general stood in front of a U.S. district judge who told him that his “criminal act” was “a very serious one” and had been “committed by a national security expert who lost his moral compass.” It was a remarkable ending for a man who nearly reached the heights of Pentagon power, was almost appointed chairman of the Joint Chiefs of Staff, and had the president’s ear.

    In fact, Gen. James Cartwright has not gone to jail and the above paragraph remains — as yet — a grim Washington fairy tale.  There is indeed a Justice Department investigation open against the president’s “favorite general” (as Washington scribe to the stars Bob Woodward once labeled him) for the possible leaking of information on that virus to the New York Times, but that’s all.  He remains quite active in private life, holding the Harold Brown Chair in Defense Policy Studies at the Center for Strategic and International Studies, as a consultant to ABC News, and on the board of Raytheon, among other things. He has suffered but a single penalty so far: he was stripped of his security clearance.

    A different leaker actually agreed to that plea deal for the 13-month jail term.  Nearly three weeks ago, ex-State Department intelligence analyst Stephen E. Kim pled guilty to “an unauthorized disclosure of national defense information.”  He stood before U.S. District Judge Colleen Kollar-Kotelly, who offered those stern words of admonition, and took responsibility for passing classified information on the North Korean nuclear program to Fox News reporter James Rosen in 2009. 

    Still, someday Cartwright might prove to be unique in the annals of Obama era jurisprudence — the only Washington figure of any significance in these years to be given a jail sentence for a crime of state.  Whatever happens to him, his ongoing case highlights a singular fact: that there is but one crime for which anyone in America’s national security state can be held accountable in a court of law, and that’s leaking information that might put those in it in a bad light or simply let the American public know something more about what its government is really doing.

    If this weren’t Washington 2014, but rather George Orwell’s novel 1984, then the sign emblazoned on the front of the Ministry of Truth — “War is Peace, Freedom is Slavery, Ignorance is Strength” — would have to be amended to add a fourth slogan: Knowledge is Crime.

    Seven Free Passes for the National Security State

    With Cartwright as a possible exception, the members of the national security state, unlike the rest of us, exist in what might be called “post-legal” America.  They know that, no matter how heinous the crime, they will not be brought to justice for it.  The list of potentially serious criminal acts for which no one has had to take responsibility in a court of law is long, and never tabulated in one place.  Consider this, then, an initial run-down on seven of the most obvious crimes and misdemeanors of this era for which no one has been held accountable.

    *Kidnapping: After 9/11, the CIA got into kidnapping in a big way.  At least 136 “terror suspects” and possibly many more (including completely innocent people) were kidnapped off the streets of global cities, as well as from the backlands of the planet, often with the help of local police or intelligence agencies.  Fifty-four other countries were enlisted in the enterprise.  The prisoners were delivered either into the Bush administration’s secret global system of prisons, also known as “black sites,” to be detained and mistreated, or they were “rendered” directly into the hands of torturing regimes from Egypt to Uzbekistan.  No American involved has been brought to court for such illegal acts (nor did the American government ever offer an apology, no less restitution to anyone it kidnapped, even those who turned out not to be “terror suspects”).  One set of CIA agents was, however, indicted in Italy for a kidnapping and rendition to Egypt.  Among them was the Agency’s Milan station chief Robert Seldon Lady.  He had achieved brief notoriety for overseeing a la dolce vita version of rendition and later fled the country for the United States.  Last year, he was briefly taken into custody in Panama, only to be spirited out of that country and back to safety by the U.S. government.

    *Torture (and other abuses): Similarly, it will be no news to anyone that, in their infamous “torture memos,” officials of the Bush Justice Department freed CIA interrogators to “take the gloves off” and use what were euphemistically called “enhanced interrogation techniques” against offshore prisoners in the Global War on Terror.  These “techniques” included “waterboarding,” once known as “the water torture,” and long accepted even in this country as a form of torture.  On coming to office, President Obama rejected these practices, but refused to prosecute those who practiced them.  Not a single CIA agent or private contractor involved was ever charged, no less brought to trial, nor was anyone in the Bush Justice Department or the rest of an administration which green-lighted these practices and whose top officials reportedly saw them demonstrated in the White House.

    To be accurate, a single member of the national security state has gone to prison thanks to the CIA’s torture program.  That was John Kiriakou, a former CIA agent who tortured no one, but offended the Obama administrations by turning whistleblower and going public about Agency torture.  He is now serving a 30-month prison sentence “for disclosing a covert operative’s name to a reporter.” In other words, the only crime that could be prosecuted in connection with the Agency’s torture campaign was one that threatened to let the American public know more about it.

    Now, however, thanks to leaks from the embattled Senate Intelligence Committee’s 6,300-page report on the CIA’s interrogation and torture program, we know that the Agency “used interrogation methods that weren’t approved by the Justice Department or CIA headquarters.”  In other words, its agents went beyond even those techniques approved in the torture memos, which in turn means that they acted illegally even by the standards of the Bush administration.  This should be an obvious signal for the beginning of prosecutions, but — not surprisingly — it looks like the only prosecution on the horizon might be of whoever leaked parts of the unreleased Senate report to McClatchy News.

    *The destruction of evidence of a crime: To purposely destroy evidence in order to impede a future investigation of possible criminal acts is itself, of course, a crime.  We know that such a thing did indeed happen.  Jose Rodriguez, Jr., the head of CIA clandestine operations, destroyed 92 videotapes of the repeated waterboardings of Khalid Sheikh Mohammed, who planned the 9/11 attacks, and alleged al-Qaeda operative Abu Zubaydah, “tapes that he had been explicitly told to preserve as part of an official investigation.”  The Justice Department investigated his act, but never charged him.  He has since defended himself in a book, Hard Measures, saying that he was, in essence, “tired of waiting for Washington’s bureaucracy to make a decision that protected American lives.”  He is still free and writing op-eds for the Washington Post defending the interrogation program whose tapes he destroyed.

    *The planning of an extralegal prison system: As is now well known, a global network of extralegal prisons, or “black sites,” at which acts of torture and abuse of every sort could be committed was set up at the wishes of the highest officials of the Bush administration.  This system was created specifically to avoid putting terror suspects into the U.S. legal system.  In that sense, it was by definition extralegal, if not illegal.  It represented, that is, a concerted effort to avoid any of the constraints or oversight that U.S. law or the U.S. courts might have imposed on the treatment of detainees.  This was a well-planned crime committed not under the rubric of war against any specific power, but of a global war without end against al-Qaeda and like-minded groups.

    *The killing of detainees in that extralegal system: The deaths of detainees in CIA custody in offshore (or borrowed) prisons as a result of harsh treatment ordered by their Agency handlers was not considered a crime.  In two cases — in the “Salt Pit” in Afghanistan and at Abu Ghraib prison in Iraq — such deaths were investigated by the Justice Department, but no one was ever charged.  In the case of Gul Rahman, the prisoner in the Salt Pit, according to the Washington Post, “a CIA officer allegedly ordered Afghan guards in November 2002 to strip Rahman and chain him to the concrete floor of his cell. Temperatures plunged overnight, and Rahman froze to death. Hypothermia was listed as the cause of death and Rahman was buried in an unmarked grave.”  (In a rare case brought before a military court, a low-level Army interrogator was convicted of “killing an Iraqi general by stuffing him face-first into a sleeping bag,” and sentenced to “forfeit $6,000 of his salary over the next four months, receive a formal reprimand, and spend 60 days restricted to his home, office, and church.”)

    *Assassination: Once upon a time, off-the-books assassination was generally a rare act of state and always one that presidents could deny responsibility for.  Now, it is part of everyday life in the White House and at the CIA.  The president’s role as assassin-in-chief, as the man who quite literally makes the final decision on whom to kill, has been all-but-publicly promoted as a political plus.  The drone assassination campaigns in Pakistan, Yemen, and Somalia, though “covert” and run by a civilian agency (with much secret help from the U.S. Air Force) are openly reported on in the media and discussed as a seeming point of pride by those involved.  In 2009, for instance, then-CIA Director Leon Panetta didn’t hesitate to enthusiastically praise the drone attacks in Pakistan as “the only game in town.” And best of all, they are “legal.”  We know this because the White House had the Justice Department prepare a 50-page document on their legality that it has refused to release to the public.  In these campaigns in the backlands of distant places where there are seldom reporters, we nonetheless know that thousands of people have died, including significant numbers of children.  Being run by a civilian agency, they cannot in any normal sense be “acts of war.”  In another world, they would certainly be considered illegal and possibly war crimes, as Christof Heyns, the U.N. special rapporteur on extrajudicial killings, has suggested.  Top officials have taken responsibility for these acts, including the drone killings in Yemen of four American citizens condemned to death by a White House that has enthusiastically taken on the role of judge, jury, and executioner.  No one involved, however, will ever see a day in court.

    *Perjury before Congress: Lying to Congress in public testimony is, of course, perjury.  Among others, we know that Director of National Intelligence James Clapper committed it in a strikingly bald-faced way on March 12, 2013.  When asked by Senator Ron Wyden whether the NSA had gathered “any type of data at all on millions or hundreds of millions of Americans” — a question submitted to him a day in advance — Clapper answered, “No, sir.  Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”  This was a lie, pure and simple, as the Snowden revelations on the NSA’s gathering of phone metadata on all Americans (including, assumedly, our congressional representatives) would later make clear.  Clapper subsequently apologized, saying that he spoke in what he called “the least untruthful” way possible, which, were crime on anyone’s mind, would essentially have been a confession.  Congress did nothing.  Just in case you wondered, Clapper remains the director of national intelligence with the “support” of the president.

    Mind you, the above seven categories don’t even take into account the sort of warrantless surveillance of Americans that should have put someone in a court of law, or the ways in which various warrior corporations overbilled or cheated the government in its war zones, or the ways private contractors “ran wild” in those same zones.  Even relatively low-level crimes by minor figures in the national security state have normally not been criminalized.  Take, for example, the private surveillance of and cyberstalking of “love interests,” or “LOVEINT,” by NSA employees using government surveillance systems.  The NSA claims that at least one employee was “disciplined” for this, but no one was taken to court.  A rare exception: a number of low level military figures in the Abu Ghraib scandal were tried for their abusive actions, convicted, and sent to jail, though no one higher than a colonel was held accountable in court for those infamously systematic and organized acts of torture and abuse.

    Too Big to Fail, National Security-Style

    All in all, as with the banks after the meltdown of 2007-2008, even the most obvious of national security state crimes seem to fall into a “too big to fail”-like category.  Call it “too big to jail.”  The only crime that repeatedly makes it out of the investigative phase and into court — as with Stephen Kim, Chelsea Manning, and John Kiriakou — is revealing information the national security state holds dear.  On that, the Obama administration has been fierce and prosecutorial.

    Despite the claims of national security breaches in such cases, most of the leakers and whistleblowers of our moment have had little to offer in the way of information that might benefit Washington’s official enemies.  What Kim told Fox News about the North Korean nuclear program was hardly likely to have been news to the North Koreans, just as the Iranians are believed to have already known what General Cartwright may have leaked to the Times about the origins of the Stuxnet virus.

    Of course, leaking is a habit that’s often considered quite useful by those in power.  It’s little short of a sport in Washington, done whenever officials feel it to be to their advantage or the advantage of an administration, even if what’s at stake are “secret” programs like the CIA’s drone campaign in Pakistan.  What’s still up in the air — and to be tested — is whether leaking information in the government’s supposed interest could, in fact, be a crime.  And that’s where General Cartwright comes in.  If there is, in fact, but a single crime that can be committed within the national security state for which our leaders now believe jail time is appropriate, how wide is the category and is knowledge always a crime when it ends up in the wrong brains?

    If there were one man of power and prominence who might join Kim, Kiriakou, Manning, and Edward Snowden (should the U.S. government ever get its hands on him), it might be Cartwright.  It’s a long shot, but here’s what he doesn’t have going for him.  He was an insider who was evidently an outsider.  He was considered “a lone wolf” who went to the president privately, behind the backs of, and to the evident dismay of, the chairman of the Joint Chiefs and the Secretary of Defense.  He seems to have had few supporters in the Pentagon and to have alienated key Republican senators.  He could, in short, prove the single sacrificial lamb in the national security state.

    In Washington today, knowledge is the only crime.  That’s a political reality of the twenty-first century.  Get used to it.




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    How Obama’s Targeted Killings, Leaks, and the Everything-Is-Classified State Fused

    June 16, 2012 // 13 Comments »

    (This article originally appeared on TomDispatch, on June 12, 2012)

    White is black and down is up. Leaks that favor the president are shoveled out regardless of national security, while national security is twisted to pummel leaks that do not favor him. Watching their boss, bureaucrats act on their own, freelancing the punishment of whistleblowers, knowing their retaliatory actions will be condoned. The United States rains Hellfire missiles down on its enemies, with the president alone sitting in judgment of who will live and who will die by his hand.

    The issue of whether the White House leaked information to support the president’s reelection while crushing whistleblower leaks it disfavors shouldn’t be seen as just another O’Reilly v. Maddow sporting event. What lies at the nexus of Obama’s targeted drone killings, his self-serving leaks, and his aggressive prosecution of whistleblowers is a president who believes himself above the law, and seems convinced that he alone has a preternatural ability to determine right from wrong.

    If the President Does It, It’s Legal?

    In May 2011 the Pentagon declared that another country’s cyber-attacks — computer sabotage, against the U.S. — could be considered an “act of war.” Then, one morning in 2012 readers of the New York Times woke up to headlines announcing that the Stuxnet worm had been dispatched into Iran’s nuclear facilities to shut down its computer-controlled centrifuges (essential to nuclear fuel processing) by order of President Obama and executed by the US and Israel. The info had been leaked to the paper by anonymous “high ranking officials.” In other words, the speculation about Stuxnet was at an end. It was an act of war ordered by the president alone.

    Similarly, after years of now-you-see-it-now-you-don’t stories about drone attacks across the Greater Middle East launched “presumably” by the U.S., the Times (again) carried a remarkable story not only confirming the drone killings — a technology that had morphed into a policy — but noting that Obama himself was the Great Bombardier. He had, the newspaper reported, designated himself the final decision-maker on an eyes-only “kill list” of human beings the United States wanted to destroy. It was, in short, the ultimate no-fly list. Clearly, this, too, had previously been classified top-secret material, and yet its disclosure was attributed directly to White House sources.

    Now, everyone is upset about the leaks. It’s already a real Red v. Blue donnybrook in an election year. Senate Democrats blasted the cyberattack-on-Iran leaks and warned that the disclosure of Obama’s order could put the country at risk of a retaliatory strike. Republican Old Man and former presidential candidate Senator John McCain charged Obama with violating national security, saying the leaks are “an attempt to further the president’s political ambitions for the sake of his re-election at the expense of our national security.” He called for an investigation. The FBI, no doubt thrilled to be caught in the middle of all this, dutifully opened a leak investigation, and senators on both sides of the aisle are planning an inquiry of their own.

    The high-level leaks on Stuxnet and the kill list, which have finally created such a fuss, actually follow no less self-serving leaked details from last year’s bin Laden raid in Pakistan. A flurry of White House officials vied with each other then to expose ever more examples of Obama’s commander-in-chief role in the operation, to the point where Seal Team 6 seemed almost irrelevant in the face of the president’s personal actions. There were also “high five” congratulatory leaks over the latest failed underwear bomber from Yemen.

    On the Other Side of the Mirror

    The Obama administration has been cruelly and unusually punishing in its use of the 1917 Espionage Act to stomp on governmental leakers, truth-tellers, and whistleblowers whose disclosures do not support the president’s political ambitions. As Thomas Drake, himself a victim of Obama’s crusade against whistleblowers, told me, “This makes a mockery of the entire classification system, where political gain is now incentive for leaking and whistleblowing is incentive for prosecution.”

    The Obama administration has charged more people (six) under the Espionage Act for the alleged mishandling of classified information than all past presidencies combined. (Prior to Obama, there were only three such cases in American history, one being Daniel Ellsberg, of Nixon-era Pentagon Papers fame.) The most recent Espionage Act case is that of former CIA officer John Kiriakou, charged for allegedly disclosing classified information to journalists about the horrors of waterboarding. Meanwhile, his evil twin, former CIA officer Jose Rodriguez, has a best-selling book out bragging about the success of waterboarding and his own hand in the dirty work.

    Obama’s zeal in silencing leaks that don’t make him look like a superhero extends beyond the deployment of the Espionage Act into a complex legal tangle of retaliatory practices, life-destroying threats, on-the-job harassment, and firings. Lots of firings.

    Upside Down Is Right Side Up

    In ever-more polarized Washington, the story of Obama’s self-serving leaks is quickly devolving into a Democratic/Republican, he-said/she-said contest — and it’s only bound to spiral downward from there until the story is reduced to nothing but partisan bickering over who can get the most advantage from those leaks.

    But don’t think that’s all that’s at stake in Washington. In the ever-skittish Federal bureaucracy, among the millions of men and women who actually are the government, the message has been much more specific, and it’s no political football game. Even more frightened and edgy than usual in the post-9/11 era, bureaucrats take their cues from the top. So expect more leaks that empower the Obama Superman myth and more retaliatory, freelance acts of harassment against genuine whistleblowers. After all, it’s all been sanctioned.

    Having once been one of those frightened bureaucrats at the State Department, I now must include myself among the victims of the freelancing attacks on whistleblowers. The Department of State is in the process of firing me, seeking to make me the first person to suffer any sanction over the WikiLeaks disclosures. It’s been a backdoor way of retaliating for my book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, which was an honest account of State’s waste and mismanagement in the “reconstruction” of Iraq.

    Unlike Bradley Manning, on trial under the Espionage Act for allegedly dumping a quarter million classified documents onto the Internet, my fireable offense was linking to just one of them at my blog. Just a link, mind you, not a leak. The document, still unconfirmed as authentic by the State Department even as they seek to force me out over it, is on the web and available to anyone with a mouse, from Kabul to Tehran to Des Moines.

    That document was discussed in several newspaper articles before — and after — I “disclosed” it with my link. It was a document that admittedly did make the U.S. government look dumb, and that was evidently reason enough for the State Department to suspend my security clearance and seek to fire me, even after the Department of Justice declined to prosecute. Go ahead and click on a link yourself and commit what State now considers a crime.

    This is the sort of thing that happens when reality is suspended in Washington, when the drones take flight, the worms turn, and the president decides that he, and he alone, is the man.

    What Happens When Everything Is Classified?

    What happens when the very definitions that control life in government become so topsy-turvy that 1984 starts looking more like a handbook than a novel?

    I lived in Taiwan when that island was still under martial law. Things that everyone could see, like demonstrations, never appeared in the press. It was illegal to photograph public buildings or bridges, even when you could buy postcards nearby of some of the same structures. And that was a way of life, just not one you’d want.

    If that strikes you as familiar in America today, it should. When everything is classified — according to the Information Security Oversight Office, in 2011 American officials classified more than 92,000,000 documents — any attempt to report on anything threatens to become a crime; unless, of course, the White House decides to leak to you in return for a soft story about a heroic war president.

    For everyone else working to create Jefferson’s informed citizenry, it works very differently, even at the paper that carried the administration’s happy leaks. Times reporter Jim Risen is now the subject of subpoenas by the Obama administration demanding he name his sources as part of the Espionage Act case against former CIA officer Jeffery Sterling. Risen was a journalist doing his job, and he raises this perfectly reasonable, but increasingly outmoded question: “Can you have a democracy without aggressive investigative journalism? I don’t believe you can, and that’s why I’m fighting.” Meanwhile, the government calls him their only witness to a leaker’s crime.

    One thing at stake in the case is the requirement that journalists aggressively pursue information important to the public, even when that means heading into classified territory. If almost everything of importance (and much that isn’t) is classified, then journalism as we know it may become… well, illegal.

    Sometimes in present-day Washington there’s simply too much irony for comfort: the story that got Risen in trouble was about an earlier CIA attempt to sabotage Iran’s nuclear program, a plot which failed where Stuxnet sort of succeeded.

    The End

    James Spione, an Academy Award-nominated director who is currently working on a documentary about whistleblowers in the age of Obama, summed things up to me recently this way: “Beneath the partisan grandstanding, I think what is most troubling about this situation is the sense that the law is being selectively applied. On the one hand, we have the Justice Department twisting the Espionage Act into knots in an attempt to crack down on leaks from ‘little guys’ like Thomas Drake and John Kiriakou, while at the same time an extraordinarily detailed window into covert drone policy magically appears in the Times.

    Here is the simple reality of our moment: the president has definitively declared himself (and his advisors and those who carry out his orders) above the law, both statutory and moral. It is now for him and him alone to decide who will live and who will die under the drones, for him to reward media outlets with inside information or smack journalists who disturb him and his colleagues with subpoenas, and worst of all, to decide all by himself what is right and what is wrong.

    The image Obama holds of himself, and the one his people have been aggressively promoting recently is of a righteous killer, ready to bloody his hands to smite “terrorists” and whistleblowers equally. If that sounds Biblical, it should. If it sounds full of unnerving pride, it should as well. If this is where a nation of laws ends up, you should be afraid.



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