All right, y'all.
Welcome back to the show.
It's anti-war radio.
I'm Scott Horton, and our next guest on the show is Jennifer Van Bergen.
She is an attorney, author, and activist, a law professor at the Anglo-American University in Prague in the Czech Republic, and is the author of The Twilight of Democracy, The Bush Plan for America.
She's been a long outspoken critic against the Patriot Act, illegal detention, and torture.
Her work can be found at FineLaw, The Huffington Post, and Alternet, and many other outlets, including RedRoom.com, where the writers are.
Welcome to the show, Jennifer.
How are you?
Hi, good.
Thank you for having me.
Well, I'm very happy to have you here.
So, really bad news out of the Bradley Manning case, for anyone who has a heart at all.
Could you give us the latest, please, as far as you know?
Yeah.
The government just added 22 charges, and really, most of them are minor things, but the big one that everyone is talking about is whether the charge that he, without proper authority, knowingly gave intelligence to the enemy through indirect means, which is the aiding enemy statute in the Uniform Code of Military Justice.
That's the big one.
The other one that he's been already charged with is the Espionage Act violation.
These are two very important ones that I would be delighted to discuss with you.
Okay, yeah.
Let's start with the second one first there, the Espionage Act charge.
Yeah.
The Espionage Act of 1917 prohibits any attempt to interfere with military operations, support U.S. enemies during wartime, or promote insubordination in the Army, or interfere with military recruitment.
The interesting thing about the Espionage Act is that it's been, it's gone up to the Supreme Court, but only under a conspiracy conviction, and it was upheld, but it's kind of one of those things that they, it's unusual to see it because it's marginally, I mean, it's questionably, arguably unconstitutional.
The Schenck case is the one where, you know, it went up to the Supreme Court, and that's the one which is so famous, where we know the clear and present danger standard articulated by Justice Holmes.
But the problem with it is that you're talking here about speech, and you're talking about what kind of speech is permissible and what kind of speech is not permissible.
The case that came up that I just mentioned to you was these men were charged with violating the Act for distributing anti-draft pamphlets.
So, you know, we're not just talking about military speech, we're just talking about whether this would apply, you know, if they set a precedent on this case, whether it can apply, you know, to the press.
We're talking about Bradley Manning giving information to the press, and whether this could be, whether newspapers or newspaper journalists could be prosecuted under this Act.
And that's one of the problems with it, that's the main issue with it.
Well, and it sounds like it's written so broad that anybody shows up at an anti-war protest is getting in the way of the war effort, which, you know, like they would have said at the National Review, at least in years past, is objective support for Osama bin Laden.
Exactly.
So, wow, exactly.
I thought that was hyperbole.
Wait a minute, you're telling me that the way that they're applying, attempting at least to apply the Espionage Act to Bradley Manning, could, it's so vague that it could apply to anyone who's not on board for whatever the president has as a foreign policy at any given time.
I think that's the main concern with it.
I think that's what a lot of people are concerned about.
It depends on exactly how specifically they want to apply it and what the facts of the case are.
I think this is very fact dependent.
And, you know, there are a lot of people who think that Bradley Manning did something wrong by passing this information on.
But, you know, the problem with this is that he passed information to a publication.
He didn't disseminate it himself.
So he's a whistleblower.
He leaked this information.
And, you know, you're talking about with the Pentagon Papers, you know, you're talking about Daniel Ellsberg, who was a leaker, who passed information to the New York Times, who was, you know, he was prosecuted, but he was never convicted.
And he's now considered a hero by many people.
So we're talking about prosecuting leakers, whistleblowers, such as Colleen Rowley.
She was a whistleblower, you know.
Ray McGovern, isn't he a whistleblower?
He's a former CIA field, not a field officer.
He was an analyst.
So, you know, you're talking about prosecuting people who are revealing government wrongs.
That's what Bradley Manning has done.
He's revealed some terrible wrongs that have been engaged in by this government and shouldn't.
Isn't that the job of the press?
I mean, that's what the press does.
We go and we find out what the government is doing, among other things, and we investigate.
And that's part of our role.
We're the watchdog, you know.
So if we can't do that, if people like Bradley Manning are going to be sentenced to life or now he's up for the death penalty.
Well, they say they're not going to go after death, but, you know, that's up to the judge.
Then, you know, we're talking about suppressing speech for everyone.
Right.
I mean, that's the whole thing is the only way that this guy's information, if we assume that he actually did the downloading and uploading of these files, like they claim, the only way the information got to the Taliban or whatever would be by way of the Washington Post, the New York Times, the Guardian in England.
Exactly.
Exactly.
And that kind of brings me to the second charge, if you don't mind, go to the aiding the enemy charge, because this one, I think, is even of more concern.
The charge is I'm going to read from his charge sheet that he did without proper authority, knowingly give intelligence to the enemy through indirect means.
That's a provision where it assumes that the enemy actually received it and the intent to aid the enemy is not required.
I don't know how they are going to prove, how could, you know, how would they be able to prove that al-Qaeda or the Taliban or somebody else actually received this information just because it was published?
And if we're now talking about, okay, anytime we publish something, that means the enemy receives it, then somebody goes to jail for the rest of their life.
Right.
I mean, I guess I could probably find a quote of somebody from the Taliban saying, yes, we learned from the Afghan war logs, this, that, and the other thing, and that would be enough, huh?
Well, maybe not even that.
Maybe it would be just judicially noticed that it is assumed that the enemy reads the New York Times.
Right.
You know, that we can assume that they read our newspapers, that it's a, you know, large enough newspaper that they have that information.
Well, you know, Glenn Greenwald on his blog today points out that the dangers, he says, the dangers of such a theory are obvious.
Indeed, even the military itself recognizes those dangers as the military judge's handbook specifically requires that if this theory is used, that one has aided the enemy, quote, unquote, through indirect transmission via leaks to a newspaper, then it must be proven that the, quote, communication was intended to reach the enemy.
So like, for example, if Robert Hansen had, say, leaked a story to the Times that had a specific sentence of a quote of his, and that was a code to tip off his Soviet handlers X, Y, or Z, that would be applicable.
But in this case, Bradley Manning, of course, if we believe the chat logs as published by Wired, made it clear that what he wanted was the American people to have access to this information.
Right.
Now, what you're referring to, I read Greenwald's piece, and also there's one that he actually drew from by Professor Kevin John Heller, who's an international law professor.
And it's kind of interesting because both of them focused on the clause communicated, whereas he's actually charged with not with communicating with the enemy.
He's not charged with that provision.
He's charged with giving intelligence to the enemy.
That's a separate section of this bogus law.
Yes.
There are two separate phrases in one section, but they are handled differently.
And there's some indications in the manual and in the military judge's bench book that the second one, the communication, requires intention to reach the enemy.
And the first one, giving intelligence, doesn't require any intention to reach the enemy.
That there's no intention required that even aid be intended, that they be intending to give aid.
Apparently, the only requirement in this provision is that the enemy actually received it, which I find kind of odd.
And one of the things that I've been saying about both of these is that I have a feeling that these two provisions, the Espionage Act and the Aiding the Enemy Act, are being raised against Manning in part in order to put pressure on him so that they can eventually drop those charges and get him to accept a plea on lesser charges, which is, of course, what they do all the time.
So they can show a conviction and people will think that he was convicted of espionage, but he'll be convicted of some minor offense.
And they also hope to get him to spill the beans on Julian Assange on WikiLeaks.
Right, because they want to use the Espionage Act against him by, and they admitted this, right?
They're coming up with a, well, gee, the law in America doesn't allow us to prosecute people for stuff like this.
So we need to invent a magical new legal theory whereby Julian Assange somehow persuaded Bradley Manning to download and upload these documents.
And then that way, he's not the receiver of a leak and a publisher.
That way he'll be a co-conspirator in the crime with Bradley Manning in the taking of the documents in violation of Bradley Manning's responsibility under the military law.
Actually, there's been a proposed amendment, the Shield Act, which would make it illegal to publish the names of U.S. military and intelligence informants, which is directed specifically against Julian Assange.
That's an ex post facto thing anyway, right?
Yes, that would mean for you.
And a bill of attainder for that matter, I guess.
Right.
That would mean for your audience's benefit, that would mean that they're passing a law to apply retroactively, which honestly, you know, I wrote the book The Twilight of Democracy about the Bush government, but I mean, I could write the same book about the Obama government.
Article one, section nine, never heard of it.
Bill of Rights?
Which one?
Exactly.
This is, you know, I'm laughing about it, but this is very frightening stuff because we see, I mean, you know, the prosecution, the job of the Department of Justice, of the prosecutors, the assistant U.S. attorneys, is to go find ways, you know, to find something under some law that fits.
But, you know, when they start stretching and stretching and stretching like this, and you, of course, wonder who's who's the guiding hand here.
It's it gets I mean, we're talking about really systematic repression of not just somebody who, you know, even if even if you think Bradley Manning did something terribly wrong, I think there are very few people that think that he did this with the intention, as you said earlier, of aiding the enemy.
He did it for public benefit, even if he even if he was mistaken in doing that.
You know, so we're talking about going after people who are trying to do a public good.
And I and I believe Bradley Manning has done a great public good.
And after people like Julian Assange, when you know, where's the line between him then and and the New York Times?
Right.
Well, and, you know, I hate to, you know, focus on the utilitarian type aspects of this and whatever, but I think it's kind of worth going over the fact that all the propaganda was one, none of this is a big deal at all.
And so don't pay any attention to it.
And two, this is all so important that good, beautiful people all over the world are all dying because of the evil treason of WikiLeaks when the reality is this stuff is extremely important.
And it's it is in effect, you look at Tunisia, and I think WikiLeaks had at least some role in what was going on in Egypt as well.
But certainly in starting this thing in Tunisia, as even Bill Keller at the New York Times points out, goes to WikiLeaks.
And so it's of the most extreme importance, but it's not getting any innocent people killed by exposing quizlings among the enemy and that kind of thing.
It's only leading to wonderful bottom up revolutions for liberty all across the Middle East.
And if that's a detriment to the interest of the American empire, that's one thing, but that's only in the best interest of freedom in the Middle East and here as well if we lose our empire over there.
So it's earth shattering truths have come out of these war logs and the State Department documents, but none of them costing the lives of innocent people only in helping be a catalyst for great things to happen all over the planet.
Yeah, there's been no documentation that in fact, I was reading that with Bradley Manning, you know, they went after the after the first things came out, and they claim that there were names revealed.
But nobody, there was nobody that was killed or hurt.
There's not been any information that that anybody has been has been harmed by the release of that information, except people who are embarrassed by, you know, having their dirty laundry put out on the line for the public to see.
Right.
And you know, it really has an outrage, you know, most of these, these revelations haven't really outraged the American people, but they have certainly had their effect overseas.
That's for sure.
Yeah.
Well, I think they have to hear because if you look at what's going on in Wisconsin, and now it's going to start happening in Ohio, you know, we have some repression going on there of labor of unionists.
And but I think that what's going on in Egypt and Tunisia, you know, which which you were just referring to in the Middle East, I think people are seeing it here and saying, Hey, you know, we, we have a right to stand up for our freedoms, too.
So I maybe there's some, you know, blowback in a positive way there.
Well, now, here's one more thing about Bradley Manning that I think is really important to bring up.
And that is his lawyer.
Coombs, I forget his first name, David Coombs, at army court martial defense dot info, has a new article here from the third, saying that Manning has been forced by the government to strip naked and has spent at least a whole night or more in his cell, naked at the hands of these people.
And of course, there's been one of the people in charge there was even sacked for putting Manning on an extra level of precautionary suicide watch and whatever, which they were just abusing that power in order to wake him up all the time and mess with him all the time and keep him locked down all the time.
And they're really treating this guy like he's Khalid Sheikh Mohammed or something.
And he hasn't been convicted of anything.
He is.
He's being detained.
He is not an inmate.
He's not a convict.
And, you know, and there's there's very strong evidence, which Glenn Greenwald wrote about that this kind of treatment, solitary confinement like this, where he's not allowed, he's in a small cell.
He's not even allowed to exercise.
He's not allowed to.
I mean, he's allowed like one or two books.
He's allowed very, very limited.
He can't talk to people all day long.
He can't move around.
This kind of treatment is there.
There is evidence that this is torture.
And that's why the U.N. has now gone in and asked, you know, to assess this on their own.
I mean, this is very, very bad.
The United States is doing this is the kind of stuff you see in dictatorships.
You know, I hate to say this, you know, because I mean, 20, 30 years ago, I was saying I was a patriot when it was not when it wasn't even popular to say it.
You know, I mean, I love the United States and I love the U.S. Constitution.
And that's what I I I believe in the Constitution and I believe in the rule of law.
But, you know, this is less and less like the United States that I believe in.
Now, it's funny because it's true.
Sorry about that.
But thank you very much.
I've read a lot of your work over the years.
It's too bad we hadn't talked before, but I'm very happy to have had you on the show today.
Thank you for having me, Scott.
Everybody, that's Jennifer Van Bergen.
You can find her at Fine Law, read her book, The Twilight of Democracy, The Bush Plan for America, Huffington Post and Alternet as well.
