Category Archives: Courts and Judges

Wasteful, Secret and Vicious: The Absurd Prosecution of Witness K and Bernard Collaery

This week has not been a good one for the Australian legal system.  For those who feel that an open justice process requires abuses of power to be exposed and held to account, it was particularly awful.  It began with the Q&A program on the national broadcaster, the ABC, which supposedly gives an airing to the vox populi. The dominant theme of the conversation between the panelists was that of secrecy and the prosecution (read persecution) of lawyer Bernard Collaery and his client, a former intelligence officer known as Witness K.

Witness K, using authorised channels, revealed his dissatisfaction of an illegal bugging operation of Timor-Leste diplomats in 2004 by Australian operatives during the course of oil and gas treaty negotiations.  The exposure enabled Timor-Leste, with the assistance of Collaery, who had agreed to act as Witness K’s representative, to overturn the legitimacy of those discussions and the treaty that followed.  The revelations of this sordid affair were not something Australia’s national security goons were ever going to forgive.

For years, both men have been subjected to a vicious process intent on securing a conviction.  It exudes a police state rationale: punishing a former intelligence officer and his legal representative by means of purported conspiracy and the unlawful disclosure of secret intelligence information.  On the Q&A program, Collaery was combative.  “I yearn for the day when I can defend Witness K and myself in open court.  This is the democracy that my father gave his life in the war for.”

That democracy is, evidently, in a parlous state.  According to the New York Times, it is certainly one of the most secretive, a point aided by two other guests on the panel: counter-terrorism wonk Jacinta Carroll and the former director-general of the Australian Security Intelligence Organisation, Dennis Richardson.  Both cast long shadows of the opaque, impenetrable security establishment.  Neither had much time for the niceties and nobilities of the two cases or, for that matter, broader principles at play.  Democracy was for other people.

Stuck in their respective mental corridors, they had no opinion on whether the prosecutions should be taking place.  “The government has neither confirmed nor denied any operation in respect of East Timor,” Richardson deflected.  “Leaving that aside, if an operation was indeed carried out, it would not have been a crime.”  First, neither confirm nor deny the existence of something; second, claim that such a surveillance operation mounted against the cabinet ministers of a friendly state was perfectly legal.  Grotesquely, Collaery and Witness K are facing what can only be regarded as druidical powers, with any potential convictions drawn on exposing what Richardson and the Morrison government might regard as a fiction.

Having added that element of absurdity to his assessment, Richardson bolted for the exit of dim reasoning known as the cop-out: “in terms of current legal proceedings, it is ultimately the court that will determine that which is privileged and that which is made public.”  Transparency can go and hang.

Carroll was not much better, suggesting that all was in order regarding the court process.  The question – that this prosecution farce should even be taking place – was evaded.  On the court process itself, heavily loaded in favour of the views put forth by the Attorney General, Christian Porter, she was satisfied.  Porter’s views constituted “expert advice” and should be given their measure.  It was enough to bring Collaery back into the discussion.  “The fact is that it’s not a judge balancing exercise, the [National Security Information Act] mandates and gives the attorney’s certificate the greatest weight.”

On June 26, that non-balancing act was in evidence.  ACT Supreme Court justice David Mossop ruled in favour of the government submission that material deemed sensitive by the Attorney General would remain classified at trial.  The door would be effectively shut.  As Collaery had himself warned, the national security certificate would be given asphyxiating weight.  His legal representative Christopher Flynn spoke outside the court of the need for this case to be heard in public in its entirety. “The view that national security needs this trial to be heard in secret is highly contested, even here in Canberra.”  It would, he contended, be “a shame” if laws “meant to defend and protect us ended up eroding the very things that we mean to protect and defend.”

South Australian Senator Rex Patrick of the Centre Alliance was in agreement.  “Justice should be done openly where anyone can come to hear the accuser, the defender and the witnesses.  Openness guards against improbity and keeps the judge, whilst trying, under trial.”

Both Flynn and Patrick should not be naïve in this. National security, as a concept, is often self-referenced, contained and resistant to the light of scrutiny or common sense.  The protective, paternal principle – that the people, broadly defined, must be protected – has little to do with them, and much to do with the State itself.  Citing the phantasmic quality of national security facilitates such prosecutions, which seem vindictive and more than a touch imbecilic.

That has led to one of the most wasteful prosecution efforts in recent memory.  As of June 3, some $2 million has been expended despite the case still being at a pre-trial stage.  As Patrick put it, this amount has been spent “persecuting two Australian heroes that called out the Australian government’s immortal and unlawful conduct”.  But as with other maniacal complexes that beset the tyrannical mind, such heroes must be punished rather than rewarded.

Bolton’s Memoir Bolts from the Stable

President Donald Trump’s former National Security Advisor John Bolton would have been confident.  His indulgent The Room Where it Happened: A White House Memoir pitted him against the administration in a not infrequent battle over material that is published by former officials recounting their giddy days in high office.  On June 17, the US government filed a civil suit seeking a preliminary injunction ahead of the planned release of the memoir on June 23, and a “constructive trust” arising from all profits issuing from the publication of the work.

Bolton had, as Jack Goldsmith and Marty Lederman point out, signed two separate, fundamentally similar non-disclosure agreements, “corresponding to two different sets of Specialized Compartmented Information programs to which he was afforded access.”

Publishing sensitive national security information in the US context is governed by that driest of documents known as Standard Form 312.  Bolton undertook that he would “never divulge classified information to anyone unless: (a) [he has] officially verified  that the recipient has been properly authorized by the United States Government to receive it; or (b) [he has] been given prior written notice of authorization from the United States Government … that such disclosure is permitted.”  The second feature of the agreement is that Bolton agreed that, should he be “uncertain about the classification status” of any information in question, he would “confirm from an authorized official that the information is unclassified before [he] may disclose it.”

This was not all.  To further supress information that would otherwise make it into the public domain is Standard Form 4414, which covers “Special Access Programs”, referred to in the field as sensitive compartmented information (SCI).  The policing authority in this case is the National Security Council, which required Bolton to submit to review “any writing … that contains or purports to contain any SCI or descriptive of activities that produce or relate to SCI or that I have reason to believe derived from SCI, that I contemplate disclosing to any person not authorized to have access to SCI or that I have prepared for public disclosure.”

Judge Royce Lamberth of the US District Court for the District of Columbia was not convinced by arguments made by the administration for a preliminary injunction halting the memoir’s publication.  But this did not necessarily make Bolton an endearing defendant.  The judge admitted that “Bolton’s unilateral conduct raises grave national security concerns” but found that “the horse is out of the barn”.

Ultimately, Bolton’s decision to go forth with the publication without final clearance from the intelligence censors was incautious but irreversible.  The judge even conceded that “Bolton may indeed have caused the country irreparable harm.”  The point was rapid, vast distribution and spread, assisted by the nature of technology.  In “the Internet age, even a handful of copies in circulation could irrevocably destroy confidentiality.” All was required was for a determined individual, armed with the contents of such a publication, to “publish [it] far and wide from his local coffee shop.” Resigned, the judge conceded that “the damage is done.  There is no restoring the status quo.”

To that end, any injunction “would be so toothless”.  The other obvious point – that over 200,000 copies of the book had already been shipped domestically, with thousands of copies being exported to booksellers in Europe, India and the Middle East – rendered the need for such a restraint moot.  “By the looks of it,” mused the judge, “the horse is not just out of the barn – it is out of the country.”

The Bolton episode underscores the very legitimacy of the prepublication review process.  Former CIA operative John Kiriakou makes the unimpeachable point that such documents, however sympathetic their authors, need to get into open circulation.  The republic needs the oxygen of revelation.  The process of review, he attests, is “deeply flawed and frequently political.”  As Kiriakou reminds us, such a system of suppression drew breath from the case of Victor Marchetti, who worked as an analyst at the CIA between 1955 and 1969.  Serialised versions of his book reflecting on the grand old days were slated to run in Esquire.  The CIA took issue, filed a temporary injunction against publication of the book citing the presence of classified information and the naming of undercover operatives.  The case made its way to the US Supreme Court, which held that the initial judgment in favour of an injunction was sound.  The non-disclosure regime was appropriate.  “We find the contract constitutional and otherwise reasonable and lawful.”  What followed was an arduous process of review, cutting and redaction, with Marchetti seeking clearance, and the CIA being miserly in concession.

Not all was lost for former members of the intelligence community and publishers.  Texts might still make it into circulation, provided they were cleared, and done so within 60 days by the relevant prepublication board.  Those not cleared might see profits confiscated.  But this did not address the issue of zealous overclassification, unnecessary redaction and violations of the 60 day rule.

The battle against the very constitutionality of the prepublication review system has begun in earnest.  On January 27, 2020, the Knight First Amendment Institute at Columbia University and the ACLU filed a Freedom of Information request seeking records related to the review of the manuscripts of 25 former federal officials, among them Bolton’s memoir.  In April 2, 2019, the Knight First Amendment Institute filed a lawsuit challenging the very constitutionality of prepublication review.  Along with the ACLU, the action was undertaken on behalf of five former public servants arguing that the prepublication system spanning the CIA, the Defence Department, the National Security Agency and the Office of the Director of National Intelligence, violated the First Amendment right “to convey and of the public to hear, in a timely manner, the opinions of former government employees on issues of public importance.”

The action further argued that the prepublication process violated the First Amendment in not providing former employees “with fair notice of they can and cannot publish without prior review”, one that also invited “arbitrary and discriminatory enforcement by censors.”

On April 16, 2020, the District Court in Maryland found in favour of the government, holding the prepublication review system to be constitutional.  Judge George Hazel found that the ACLU and Knight First Amendment Institute had standing to challenge the review process, but felt governed by the forty-year old Supreme Court case of Snepp v. United States.  The defects of the prepublication system, be it in terms of vagueness on classification, the certainty of review standards, and the absence of procedural safeguards, had little bearing on the question of constitutionality.

The plaintiffs have duly appealed. Among their arguments is the fact that Snepp focused on remedies rather than First Amendment principles, sidestepping the very merits of the CIA review system.  The limits of government authority in imposing prepublication review obligations also remained untested.  The reasoning of Snepp has also aged, both in terms of the law of pre-restraint on employee obligations and the factual environment.  As the Knight First Amendment Institute urges, “We need to hear these voices [of former employees of the intelligence services], but if we want to hear them, we have to fix the obstacle course that prepublication review has become.”

Dishonour on the Bench: Dyson Heydon and the Australian High Court

It is one of the oldest professions, stacked with rules, conventions and protocols.  It is also tribal and hierarchical.  The law, presided over its executors, the judges, do not do transparency well.  It stands to reason: according to Charles Dickens, the business of the law is to make business for itself, creating its own impenetrable labyrinths and traps while insisting on its own policing.  Now, the high priests in Australia are asking searching questions about the case of former High Court justice Dyson Heydon.

On Monday, the Sydney Morning Herald and The Age revealed the existence, and the findings of an independent inquiry, into claims that Heydon had sexually harassed six associates during his time on the High Court bench.  To that number were also a former judge and former head of the ACT Law Society, who allege indecent assault.

The Chief Justice of the Australian High Court, Susan Kiefel, revealed in her statement that the investigation, conducted by Vivienne Thom, had produced findings of “extreme concern to me, my fellow Justices, our Chief Executive and the staff of the Court.  We’re ashamed that this could have happened in the High Court of Australia.”

The six recommendations seem odd, drafted, as it were, by someone who had just woken from an induced coma.  They include the development of “a supplementary HR policy relevant to the particular employment circumstances of the personal staff of Justices including associates”: more information in “induction” sessions; and an understanding that associates were under no obligation “to attend social functions”.  That this latter recommendation was even made suggests the ceremonial terror such powerful institutions wield: Whatever the judge says, goes.

Ceremonial terror is precisely the sort of thing that Heydon’s brother and sister justices could not have been ignorant of.  While parlour gossip can be just that, the tightness of the bench, and members of the legal profession, suggest a desire to look the other way even as an open secret screams before you.

Three of those who received Heydon’s unwanted attention are now seeking legal action for compensation against both the justice and the Commonwealth.  “They were the best and brightest out of law school,” claimed their legal representative Josh Bornstein.  “This was their first job in the legal profession, working for one of the most powerful men.  They were in the early 20s, he was in his late 60s. In all three cases, they’ve abandoned the law.”

Such behaviour is also said to have taken place in Britain, where the justice proceeded to teach after mandatory retirement at the age of 70 in 2013.  His appointment as Visiting Professor to the Law Faculty at the University of Oxford was greeted with some fanfare – at least initially.  Law Faculty Dean Timothy Endicott was ecstatic.  “We would wish to be very careful to keep an appropriately high standard of distinction for Visiting Professors; in our view, Justice Heydon is most clearly a lawyer of the highest academic distinction.”  Endicott swooned over Heydon’s command of the “law of trusts”, and the fact that he was “a leading figure in the law of evidence”.

In undertaking his tasks of delivering lectures between 2014 to 2016, word got around; the Australians were talking about the judge’s reputation, and it certainly was not about either the law of evidence or trusts.  According to a former student, “My first introduction to him was that the Australian law students at Oxford called him ‘Dirty Dyson’, that seemed to be a moniker he had widely.”  A postgraduate student also complained to the university after being supposedly harassed in the Bodleian Library. Dirty Dyson’s stint also extended to invitations to awkward lunches.

Heydon, for his part, rejects “any allegation of predatory behaviour or breaches of the law” and that any conduct that “caused offence” was “inadvertent and unintended”.  His statement conveyed through his lawyers sought to take any legal sting out of the findings of the investigation, “an internal administrative inquiry” that “was conducted by a public servant and not by a lawyer, judge or a tribunal member. It was conducted without having statutory powers of investigation and of administering affirmations or oaths.”

The Australian Labor Party smell blood, and few could blame them.  Former opposition leader Bill Shorten is demanding the return of the fee he received while chairing the royal commission into trade unions, and stripping his Order of Australia. “This is a time to strip him of all his recognition and get him sorted.”   Memories of being closely examined by Heydon in 2014, with the justice calling Shorten an evasive witness, remain vivid.

The fact that Heydon also accepted an invitation to deliver the annual Sir Garfield Barwick address at a Liberal Party event even as he performed his duties for the royal commission, did not help.  Exposing the invitation led to Heydon’s withdrawal of acceptance; subsequent calls that he step down from his role led to a less than searching investigation conducted by, of all people, Heydon himself.  In his words, he had “overlooked the connection between the person and persons organising the address and the Liberal party which had been set out in [an] April 2014 email.”

Those in the legal profession have been rushing to the platforms in the wake of the revelations. As a judge’s associate, Brooke Greenwood remembers “being warned of [Heydon’s] behaviour when retired justices returned for events – warnings passed on by successive cohorts of female associates trying to protect themselves and each other.”  She also “experienced sexual harassment” prior to starting at the court. “I complained.  It was one of the hardest things I’ve ever done.  I was terrified I would lose the job I loved and had always wanted to do.”

In 2018, the International Bar Association, in a joint-survey conducted with Acritas of 7,000 individuals in legal workplaces spanning 135 countries found endemic instances of bullying and sexual harassment. “One in three female respondents had been sexually harassed in a workplace context, as had one in 14 male respondents.”

Tentative suggestions are now being made that an equivalent Me Too movement in the legal profession is in the offing.  The lechers of power will be outed; the molesters will be run out of the profession.  But that would require a massive, top-to-bottom, back and forth reappraisal of a guild much petrified by convention and obsessed with self-policing.  In the meantime, Heydon’s fall may also take others with him.  “By the time this thing has washed through the system,” concludes Phillip Coorey in the Australian Financial Review, “there is every potential for more scalps.  Big names too.”

Secret Trials Down Under: Witness J, Witness K and Bernard Collaery

There are few more spiteful things in political life than a security establishment attempting to punish a leaker or whistleblower for having exposed an impropriety.  Such a tendency has no ideological stripe or colouring: it is common to all political systems.  In Australia, it has become clear that secret trials are all the rage.  The disclosure of their existence tends to be accidental, and trials held partly in secret are also matters considered necessary by the current attorney general.

Last year, the case of Witness J made its way into the press like a threatening menace, a reminder that Australian authorities do not shy away from holding trials without scrutiny or public record.  A former military intelligence officer had been prosecuted in the courts of the Australian Capital Territory and jailed under a cloak of secrecy so heavy it even eluded the ACT’s justice minister.  Had it not been for separate proceedings arising from the penning of his draft memoir, no one would have known.

For all the generously scattered propaganda about Australia being a devotee of open justice, the converse is closer to the mark.  As the Attorney-General, Christian Porter, told the ABC last year regarding Witness J, “The court determined, consistent with the Government submission, that it was contrary to the public interest that the information be disclosed and the information was of a kind that could endanger the lives or safety of others.”

Such trials are invisible affairs.  They repel scrutiny.  They repudiate the very idea of legal accountability.  All the running is made by government prosecutors.  Law Council Arthur Moses describes it in rather mundane fashion.  “The details of the case will not be found on the court website, or on the noticeboard with the list of all the other cases.”

There are other troubling cases, two of which are taking place in the Australian capital: that of former Australian Secret Intelligence Service agent Witness K and his lawyer, Bernard Collaery.  The largely secret prosecution of both men concerns a generally venal affair: the conduct of an ASIS operation in 2004 against diplomats of the impoverished state of Timor-Leste in their negotiations with Australia regarding the continental shelf rich in oil and gas.  Using the cover of an aid project, ASIS agents installed listening devices in the Timor-Leste cabinet office in Dili.

The hope was to furnish the Australian government, then led by John Howard, a robust advantage in negotiations.  It was predatory, commercially minded, and indifferent to the plight of a country still crippled by the effects of Indonesian occupation.  Witness K, with the assistance of Collaery, subsequently blew the lid on the operation, though they did so, ironically enough, through legal channels.  The Inspector General of Intelligence and Security (IGIS) was informed.  Permission to retain the services of Collaery was sought and granted.  Armed with such information, Collaery proceeded to assist Timor-Leste in mounting their 2013 case in The Hague against the validity of the treaty that had arisen out of the compromised negotiations.  During that time Collaery’s home was raided by the Australian Security Intelligence Organisation (ASIO) and Witness K detained.  Charges were duly laid, but only after the final treaty’s conclusion in March 2018.

The whole affair left a stinging impression.  “It was outrageous,” fumed chief negotiator for the Timor-Leste government Peter Galbraith.  “I’d taken protective measures against Australian espionage, which I thought would be based on cell phones and internet, but I thought it was pretty crude to be bugging the prime minister’s offices.”

The Collaery case is now making its way through the channels of secrecy, and we are none the wiser for it.  It is troublingly odd, not merely for its clandestine nature, but also for the fact that he was ever charged.

Last week, reporters gathered in the public gallery in Canberra awaiting Collaery’s pre-trial hearing.  It was a speedy affair.  Those gathered were told to leave, doing so with a statement furnished by Collaery.  “I am unable to say much and you are unable to report much.  This is the state of our now fragile democracy.”

But prosecuting the wily lawyer is something that the Morrison government should be wary of. As the Australian Financial Review notes, Collaery “is expected to instruct his legal team to issue subpoenas to have former Australian prime minister John Howard and former foreign minister Alexander Downer summoned to give evidence.”  In open court, Collaery has already announced his wish to call former Timor-Leste presidents Xanana Gusmão and José Ramos-Horta, former Australian foreign minister Gareth Evans and former chief of defence Chris Barrie.

The presiding judge, David Mossop, is also to be petitioned to make the proceedings public, though he is juggling with government arguments based on the National Security Information (Criminal and Civil Proceedings) Act 2004.  The justice must now deliberate over what, exactly, is appropriate to warrant shielding from the public.  This is a rather delicate exercise, given that legal staff, not to mention the judge himself, might face the prospect of jail for any inadvertent breaches of secrecy arrangements.

Porter is attempting to normalise the entire matter, giving this disturbing case the gloss of tolerable banality. “There are court cases all the time where some matters are not made public,” he explained on the ABC’s Insiders program.  “This is an argument about what matters may be heard inside the court, and what matters may be heard publicly.”

For its part, the government is pursuing a strategy that neither confirms nor denies that the surveillance operation against Timor-Leste officials ever took place.  Farcically, it contends that Collaery unlawfully communicated information of such surveillance, irrespective of whether it took place or not.  Such witch-burning logic should be laughed out of court, but is being treated with utmost seriousness.

Collaery is certainly rolling out the ammunition with tenacity.  “This is Coalition dirty linen.  There’s a multibillion-dollar restitution issue to do with the helium [extracted] from Bayu-Undan Field in the Timor Sea being treated as waste gas and being given away for nothing to the contractors.”  But that is not all.  So much of the operation in 2004 reeks, be it from the perspective of undermining a supposedly friendly state in the name of commerce, or the prioritisation of intelligence resources.  As Clinton Fernandes of the Australian Defence Force Academy has pointed out, the bugging operation was executed even as an attack on the Australian embassy in Jakarta was taking place. It is a scandal that remains impervious to parliamentary review, as that body is barred by the Intelligence Services Act 2001 from examining intelligence-gathering operations of the agencies.

All that is left are the courageous efforts of a few troubled by conscience in what the services of their country do.  Should patriotism ever have any meaning beyond its otherwise cowardly assertion, it will be found in such acts as those of Collaery and his client, Witness K.

Open Wounds: Sweden Drops the Olof Palme Case

It’s the sort of thing that ruffled the image of a composed and tranquil existence.  In some countries, doing away with political leaders is a periodic affair, deemed necessary to clean the stables.  But in Sweden, change is barely discernible, stability nigh guaranteed and institutions revered.  “It’s in the tradition of Sweden to put itself forth as a moral role model,” observes author Elisabeth Åsbrink.

Then came that thorny, troubling issue of Olof Palme. Palme minted a reputation berating the bullying actions of great powers and forging an internationalist platform for progressive politics.  He took issue with the crushing of the 1968 Prague Spring by the Warsaw Pact forces, apartheid in South Africa and US involvement in the Vietnam War.  As education minister in the Tage Erlander government, he marched alongside Sweden’s North Vietnamese ambassador in protest.  As Prime Minister, he gave an excoriating speech in 1972 likening the Christmas bombings of Hanoi with the destruction of Guernica during the Spanish Civil War and the Nazi death camp at Treblinka.  In an address to parliament on November 7, 1973, he reflected on the overthrow of Chile’s socialist president, Salvador Allende.  “The overthrow of a government elected by the people in Chile has raised the question of whether, in general, it is possible to carry out profound changes in a poor and unfair society without having privileged groups resorting to violence.”

He mocked the nuclear deterrent and praised striving efforts of the Third World, the latter earning him praise from Cuba’s Fidel Castro.  On the domestic front, he remained a social democrat to an aggressive degree, bringing in universal day care, introducing legislation on workers’ rights, abortion and gender equality.

Such measures encouraged the haters, though many preferred operating in the shadows.  On February 28, 1986, Palme and his wife Lisbet left a movie theatre located in downtown Stockholm.  He had felt no need for a continued security presence.  He was subsequently gunned down in his wife’s company at 11.21 pm, shot in the back by a Smith & Wesson .357 Magnum.  The scene of death saw witnesses aplenty – 23 in all – who could attest to seeing a man fire the shots and flee the scene via Tunnelgata alleyway.  What followed was the interviewing, by police, of 90,000 people.  Of that improbably large sample, 134 confessions for the murder were noted.

The list was subsequently trimmed to include, amongst others, Kurdish separatists.  At the time, the rattled Stockholm police chief Hans Holmér ordered the raid of Stampen, a jazz club that led to the arrest of several Kurds.  All were released for lack of evidence.  In the late 1990s, a captured former commander of the Kurdistan Workers Party (PKK) of Turkey, one Semdin Sakik, claimed ignorance about “the details of the assassination of Swedish prime minister Olof Palme” but insisted with unconvincing confidence that “this murder was committed by the PKK.”  PKK leader Abdullah Öcalan was supposedly peeved by the expulsion of eight members of the group from Sweden. “The operation to kill Palme was given the codename ‘wedding’ and the assassination command was given by Abdullah Öcalan [with the words] ‘Send him to his wedding’.” (The alleged assassins seemed to have had a sense of marital humour about them.)  In 1999, Turkish prosecutors took up this angle in the trial of Öcalan, who disabused notions that he was involved.  But instead of clearing matters up, another tentative hypothesis was offered: that Palme had been slain by a hastily assembled splinter group, PKK Rejin.  Back in Stockholm, sighs were registered.

The smorgasbord of suspects proved heavy and almost ludicrously well spread.  Allegations of South African involvement were also, at stages, proffered.  (To this can be added claimed Iraqi participation; the role of Chilean neo-fascist Roberto Thieme; the US Central Intelligence Agency and the German Red Army Faction.)  The Deep Search papers, prepared by General Tai Minnaar, designated Palme “enemy of the state”, and contained a list of individuals said to be involved in the decision making, planting and execution of the operation.  In January 2003, Agneta Blidberg, deputy director of the prosecuting service in Stockholm admitted to receiving the South Africn documents and instituting “certain steps and interrogations”.  She refused to put any “value” on them, though a general sense that they were forgeries remained.  In South Africa, weighty figures such as Chris Thirion, former head of South Africa’s Military Intelligence (MI), thought otherwise.  The Deep Search papers had a smell that refused to go away. Former General Tienie Groenewald, head of South Africa’s National Intelligence Interpretation Branch when Palme was killed, was also convinced, going so far as to supply the Swedish aid worker Göran Björkdahl with names in Johannesburg during an October 1, 2015 meeting.

The initial field of suspects, filtered of all exoticism and danger, left the police with the petty criminal and derelict Christer Pettersson, continuously referred to in press notes as “an alcoholic and drug addict”.  He was jailed for the killing and sentenced to life imprisonment on July 27, 1989.  Crucial to the case was testimony from Lisbet Palme, who claimed she saw Pettersson gazing with glacial interest at her dying husband after the shooting.  On appeal, he was acquitted.  In the 1990s, prosecutors revisited the case that refused to go cold, keen to get back at Pettersson.

Palme’s case has continuously radiated with wild discussion and expansive theories, often with bewildering stretch.  As Gunnar Pettersson wrote with continuing relevance in 1989, “Practically everything that is known is open to interpretation – particularly as regards the motive, since so many individuals and groups can be said to have had one.”

The more these ideas persisted, the greater the suspicion about the competence of Sweden’s investigative authorities, allied to the troubling idea that right-wing elements in the Norrmalm District of the Stockholm Metropolitan Police and the Swedish Security Police (Säpo) were at work.  (The fact that some thirty police were in the vicinity of the murder at the time is striking.)  Ministers of Justice, public prosecutors and police investigators duly resigned.

Over the years, one man seemed to linger closer to home, the depressive “Skandia Man”, graphic designer and eventual suicide Stig Engström.  He was at the scene at the time, even claiming to have made an effort to “resuscitate” Palme; he worked at Skandia Insurance, in proximity to the crime scene.  Interest was revived in 2018 with the investigative prodding of journalist Thomas Pettersson.  Engström’s ex-wife, was unswayed.  “He was too much of a coward.  He wouldn’t harm a fly.”

As seems to be a tendency in high profile cases, the Swedish prosecutors do take their time.  And time does get away.  Engström had moved up the list of favourite suspects but his death in 2000 made the continuation of proceedings more than just futile.  “Since he has died,” concluded chief prosecutor Krister Petersson, “I cannot indict him.”  But it was Engström who had “acted how we believe the murderer would have acted.”  He had weapons training, been in the army, was a member of a shooting club, hated Palme and his views.  Such evidence remained painfully circumstantial.  While the prosecutors claimed they could muster enough to move it to trial, it was not necessarily sufficient to obtain a conviction.  Obstacles remained: the inability to link, forensically, the murder with any weapon.

The conclusion to this investigation seemed egregiously dismissive, a slander on Palme’s life.  Even Palme’s son Marten, in concluding that the prosecutors had drawn the right conclusion in closing the case, could claim some disappointment “that they didn’t have more conclusive evidence, like DNA or a weapon that they could trace to the crime.”  If failure to identify Palme’s killer remained Swedish society’s great “open wound”, as current Prime Minister Stefan Löfven described it, it is one that has been left tantalisingly unclosed.

Beating Swords to Plowshares

Baghdad, March 20, 2003

Inscribed on a wall across from the United Nations in New York City are ancient words of incalculable yearning:

They will beat their swords into plowshares
and their spears into pruning hooks.
Nation will not take up sword against nation,
nor will they train for war anymore.

— Isaiah 2:4

I’ve stood with activists in front of that same wall singing Down by the Riverside, a song promising we’ll lay down our swords and shields — “and study war no more, no more.”

In memorably eloquent words spoken after the onset of COVID-19, the Secretary General of the UN, Antonio Guterres, had this message for the world:

The fury of the virus illustrates the folly of war. It is time to put armed conflict on lockdown….. Put aside mistrust and animosity. Silence the guns; stop the artillery; end the airstrikes. End the sickness of war and fight the disease that is ravaging our world. That is what our human family needs, now more than ever.

Some of my closest friends now await sentencing  for having embraced the call, quite literally, to “beat swords into plowshares.” They entered a U.S. naval base which is the home port to “one of the largest known collections of nuclear weaponry in the world.” The Kings Bay Nuclear Naval Station in St. Mary’s, GA operates a fleet of Trident nuclear submarines. On April 4, 2018, Mark Colville, Clare Grady, Martha Hennessy, Elizabeth McAlister, Patrick O’Neill, Carmen Trotta and Fr. Steve Kelly, S.J. prayed, poured blood, spray painted messages against nuclear weapons, hammered on a replica of a nuclear weapon, hung banners and waited to be arrested.

Steve Kelly, a Jesuit priest, has been locked up in the Glynn County Detention Center ever since the night the seven entered Kings Bay Naval Station. Now beginning his third year in jail, he writes that his cramped, dingy quarters are “a 21st Century monastery.” He prays, reads, listens, learns and writes. The Glynn County jail will only allow correspondence that uses 3 x 6 pre-stamped post cards. Steve has mastered the art of condensing his thoughts into short messages.  “Nuclear weapons will not go away by themselves,” he says.

Steve’s co-defendants have served varying lengths of time in the Glynn County jail and several had to wear ankle monitors, something like wearing leg irons, during home confinement. The six now await sentencing. Liz McAllister’s telephonic hearing will be held on June 8th. The others expect to appear in the Glynn County Courthouse on June 29 and 30. They face years in prison.

In October of 2019, a jury found the Kings Bay Plowshares 7 guilty of destruction and depredation of government property, trespassing, and conspiracy. Judge Lisa Godbey Wood ruled that the jury wouldn’t be allowed to hear expert witnesses or learn what motivated each of the seven to nonviolently resist nuclear weapons. She ruled out faith-based testimony.

In 2003, the Sisters of St. Brigid of Kildare, Ireland asked me to speak at a retreat for people whose faith-based convictions motivated them to nonviolently resist the impending U.S. war against Iraq. During the retreat I listened to concerns of five people who felt they were ready to risk their lives and futures, and might want to join our Iraq Peace Team in Baghdad. But when I returned to Baghdad, I learned they had instead committed a Plowshares action at Shannon airport.

Parked on the tarmac there was a U.S. Navy warplane. Ireland is a neutral country, and the activists believed they were justified in trying to prevent Ireland’s airport from being used to stage a belligerent war  in Iraq against civilians already beleaguered by earlier U.S. attacks and 13 years of economic sanctions. Entering the Shannon airport, they easily reached a U.S. Navy warplane, and they hammered on it. Harry Browne writes about the action in a book called Hammered by the Irish.

Fortunately, they were represented by extremely talented lawyers. One of them, Mr. Nix, (since deceased) has been referred to as the last of the great Irish orators. The judge wouldn’t allow expert witnesses, and, in fact, the only defense witness she would allow to speak was me since the five said they resolved to take action after hearing me speak at their retreat. She also declared there would be no faith-based testimony in her courtroom. Although she insisted war was not going to be put on trial, she had to comply with Irish law which allows lawyers to say anything they want in the final summation. Near the end of the trial, Mr. Nix rose to speak. He assured the judge and jury that the greatest pacifist of all time was Jesus of Nazareth and the greatest pacifist document ever written was the Sermon on the Mount, “and,” he said, “I’m about to read it to you right now!”

Finishing the beatitudes, he pointed to the defendants and described them as people who didn’t practice their faith as though they were at the delicatessen, choosing a bit of this or rejecting that. “They believe in their faith!” he said.

Then his tone changed as he reminisced about how happy he’d felt, recently, listening to children at play in a park near his home. The children chased the geese up a hill and then the geese chased the children downhill. What could be more beautiful than the sound of children at play? Then he began telling about children in Lebanon whose parents had taken them for a dip in the park the previous day. His face suddenly seemed to glower as he roared out that children were dying in a pool of their own blood. He described an Israeli missile blasting into the swimming hole, killing the children. And then it was as though he was putting all of us on trial. “Would you not try, if you could, to stop a Hezbollah missile from slamming into southern Israel? Would you not try, if you could, to stop an Israeli missile from slamming into a swimming hole in Lebanon? The question isn’t: did these five have a lawful excuse to do what they did! The question is: what’s our excuse not to do more?!  What will rise ye?!

The jury acquitted the five on all five counts. The lawyers had been able to skillfully introduce a necessity defense. In U.S. courts, during many dozens of Plowshares trials, the defendants are next to never allowed to invoke the necessity defense, to argue that they needed to act in order to prevent a greater harm. The laws protect those who develop, store, sell and use weapons. Those who call for disarmament and try to sound an alarm regarding the omnicidal consequences of nuclear weapons are tried narrowly on issues of property damage and trespass.

Riots have broken out in cities across the United States as protesters have vented frustrated rage following the death of George Floyd, a handcuffed black man who died after a white Minneapolis police officer knelt on Floyd’s neck for seven minutes. Some observers have rushed to judge the protesters, highlighting the irrationality of looting and burning buildings in their own neighborhoods, ruining places that might even provide services or jobs. Yet what could be more self-defeating and irrational, during the midst of a pandemic while climate catastrophes threaten planetary survival, than the action of spending more money on nuclear weapons and possibly conducting nuclear bomb tests. Why squander resources on military capacity to burn other people’s homes and cities through use of nuclear and conventional weapons?

The prophet Isaiah’s vision arouses action on the part of people longing to build a better world. Mr. Nix’s questions should be ours today, earnestly asking:

Who are the criminals?

The question isn’t: did the Kings Bay Plowshares 7 have a lawful excuse to do what they did. The question is, what’s our excuse not to do more? What will rise us?

Netanyahu’s Coalition Deal paves the Way to Annexation

Only weeks ago, Benjamin Netanyahu was a hair’s breadth from being ousted from the Israeli Prime Minister’s Office in disgrace, after 11 years of continuous rule. But after a dramatic turnaround in fortunes last week – that saw him signing a pact with Benny Gantz, his chief political rival – Netanyahu has begun to rapidly consolidate his power.

In what many critics claim amounts to a power grab, he began pushing through changes on Thursday to Israel’s basic laws, the equivalent of a constitution. The move was described as “terrifying” by Elyakim Rubinstein, a conservative former supreme court judge.

Another commentator warned that, under cover of forming an “emergency government” to deal with the coronavirus epidemic, Netanyahu had driven Israel into the early stages of totalitarianism.

What has especially alarmed observers is the apparent ease with which Netanyahu has manoeuvred Gantz, a former general, into rubber-stamping the new arrangements.

Gantz led a bloc of parties whose anti-corruption platform expressly promised to bring down Netanyahu, who is due to stand trial on bribery, fraud and breach of trust charges in a month’s time. After an election in March, the third in a year, Gantz vowed to use his bloc’s 62-seat majority to pass a law making it impossible for a criminal defendant to serve as prime minister.

Netanyahu was on the backfoot, too, fearful of a fourth election in the late summer when he risks being blamed for the expected collapse of the Israeli economy after more than a month of lockdowns.

Instead, Gantz has caved. He has not only secured Netahyahu at least another 18 months in office but, in the words of one Israeli commentator, has offered to serve as his “bodyguard”.

The coalition agreement means Gantz cannot dislodge Netanyahu during the government’s three-year term. The two stand or fall together. That gives Netanyahu a solid advantage in his court proceedings, as he fights the case not only with the authority of a prime minister but with Gantz’s complicit silence.

Even if Netanyahu is found guilty, Gantz’s faction is barred from ousting him or voting to bring down the coalition, leaving Netanyahu free to launch an appeal from within the government. Likewise, under a rotation agreement, Gantz must let Netanyahu serve out the second 18-month period as his deputy. Assuming, that is, that Netanyahu steps back.

Despite some two-thirds of Israelis supporting the emergency government, a poll shows more than 40 per cent doubt Netanyahu will honour his commitment to hand over power. In any case, even as Gantz’s deputy, Netanyahu will enjoy the allegiance of the vast majority of the governing coalition’s legislators. He could still be in the driving seat.

Most expect him to use his position to intensify his long-running campaign to demonise the courts, accusing them of overseeing an undemocratic, “leftist” plot to unseat him.

To an increasing number of Israelis, the country’s political system looks broken. Several thousand of Gantz’s former supporters defied Israel’s lockdown at the weekend – as they did the week before – to attend a rally in central Tel Aviv.

Standing on marked positions to maintain two metres’ distance, they protested Netanyahu’s increasing accumulation of powers. Carmi Gillon, a former head of Israel’s domestic spy agency, the Shin Bet, told the crowd the courts were now all that was left to “defend Israeli democracy before it is finally crushed”.

Critics note that the Shin Bet have already been given an unprecedented right – previously available for use only against Palestinians – to track Israeli citizens. Combined with anti-coronavirus restrictions, opponents fear Netanyahu is establishing a security regime at home that can be used to oppress dissenters.

They point to his imminent trial, noting that most of the charges relate to his alleged efforts to intimidate or bribe major Israeli media outlets into becoming little more than his personal cheerleaders.

Meanwhile, other checks on the executive branch he heads are being sacrificed on the altar of the emergency government.

Despite being a criminal defendant, Netanyahu will have a veto on the appointment of the two most senior law-enforcement officials – the state prosecutor and attorney general – who are supposed to oversee the case against him at trial.

Netanyahu has already installed an acting prosecutor considered loyal to him who, according to the coalition agreement, cannot be removed for many months. Israeli commentators have expressed little faith that he will prosecute Netanyahu with full vigour.

Netanyahu will also continue to wield control over the appointment of judges to the supreme court, which has been drifting ever further rightwards after more than a decade of Netanyahu’s influence.

In these circumstances, the courts may baulk at the prospect of inflaming a constitutional crisis – and possibly civil war – by trying to remove a sitting prime minister.

With the judicial and legal branches increasingly enfeebled, the coalition agreement also strips the Israeli parliament, the Knesset, of any meaningful oversight. The government will be able to strangle legislative proposals at birth, before they can be debated. Unusually the main parliamentary committees will be under the governing parties’ control, too. And a Netanyahu loyalist will be the Knesset Speaker.

But the coalition agreement does allow for one emergency legislative move unrelated to tackling the virus: annexation of swaths of the West Bank in violation of international law but under licence from the “vision for peace” published earlier in the year by US President Donald Trump.

The government can set forth an annexation plan from July – well before Trump faces a re-election contest in the US in November. Mike Pompeo, his Secretary of State, offered what appeared to be Washington’s blessing for fast-track annexation last week.

While Gantz headed the opposition bloc, he refused to rule out annexation, expressing concern only that it would prove unpalatable to some western allies.

But aside from formulaic denunciations from a few European states, Israel fears little in the way of repercussions. And Gantz now appears on board.

As defence minister, he will be responsible for crushing any Palestinian resistance to Israel’s annexation moves, while Gabi Ashkenazi, his political ally and another former general, will be responsible as foreign minister for putting a respectable face on the annexation drive in overseas capitals.

Netanyahu appears to have the wind behind him, and three more years in which to meddle in ways that could see him maintaining his grip on the Israeli Prime Minister’s Office well beyond that.

• First published in The National

As Israel’s Netanyahu uses Coronavirus to Consolidate Power, his Chief Rival Caves In

Benny Gantz, the former Israeli general turned party leader, agreed late last week to join his rival Benjamin Netanyahu in an “emergency government” to deal with the coronavirus epidemic.

Two weeks ago he had won a wafer-thin majority vote in the parliament that gave him first shot at trying to put together a coalition government.

Instead he has conceded to Netanyahu, who will remain prime minister for the next 18 months. Gantz is supposed to take over in late 2021, though Netanyahu has a formidable reputation for double-dealing.

Over the past year Gantz fought three hotly contested, though indecisive, general elections in which he vowed to bring down Netanyahu, who has ruled continuously for 11 years.

He had promised supporters he would never sit in a government alongside Netanyahu, who is due to stand trial on multiple corruption charges.

Predictably, the U-turn tore apart Gantz’s Blue and White party. Denouncing the decision, two of the alliance’s three constituent factions said they would head into the opposition.

There has been increasing governmental paralysis over the past year with neither Gantz nor Netanyahu able to cobble together a majority coalition with other parties.

The reason was the Joint List party, representing Israel’s Palestinian citizens, a fifth of the country’s population, which effectively held the balance of votes. None of the main Jewish parties was prepared to be seen relying on its 15 seats.

Even with Gantz’s depleted party, Netanyahu’s “emergency government” should now be able to muster more than 70 seats in the 120-member parliament, giving him a safe majority.

Renowned for his ability to pull off political miracles, Netanyahu appears to have gradually worn down Gantz’s resistance over the past 12 months. The coronavirus epidemic proved the final straw.

Netanyahu has exploited justifiable fears about the virus to cement his status as Father of the Nation. In regular addresses, he has presented himself as Israel’s Winston Churchill, the British wartime leader who helped vanquish the Nazis.

He has now served longer as prime minister than the country’s founding father, David Ben Gurion.

Gantz, it seems, assessed that there was no practical way to push for a fourth election during the current lockdowns. And in any case Netanyahu, given his complete dominance of the airwaves, would have been able to cast Gantz as recklessly endangering Israel’s health and its security by refusing to join him in government.

The Blue and White leader may have blanched too at the prospect of another no-holds-barred election campaign, unleashing yet more of the dirty tricks in which Netanyahu and his allies excel.

As Netanyahu has grown more desperate to stay in power – and fearful of being put on trial – the gloves have come off. In the last two elections, his officials have questioned Gantz’s mental health and spread unverifiable rumours that a phone stolen from him contained compromising photos passed on to Iran.

Further, because his path to power depended on backing from the Joint List, Gantz was the subject of endless smears from Netanyahu accusing him of getting into bed with “supporters of terrorism”. The result was a wave of death threats.

There was another consideration for Gantz. It had becoming increasingly clear that Netanyahu was prepared to provoke a constitutional crisis – and likely violence – to hold on to power.

Netanyahu’s strategy has been to undermine the court system and the parliament – the two main checks on the executive he controls.

Amir Ohana, his justice minister, has partially shut down the courts. That included postponing Netanyahu’s March 17 trial until the end of May. There is no certainty the case won’t be delayed again.

To deal with the resulting log-jam of hearings, the cabinet passed emergency regulations last week to allow court cases to be conducted by video instead. But notably, an exemption was made for those facing indictment, such as Netanyahu.

The caretaker prime minister has also stood by mutely as his senior officials have unleashed a torrent of incitement against the Israeli supreme court, in a transparent effort to intimidate its judges and turn the public mood against the legal system.

Yuli Edelstein, the speaker of the parliament from Netanyahu’s Likud party, suspended the legislature on March 18 – two weeks after the election – and refused to hold a vote for his successor as speaker because Gantz’s bloc had a narrow majority.

The fear was that a new speaker would help pass legislation to prevent criminal suspects under indictment from serving as prime minister, ousting Netanyahu from power.

The supreme court ruled that Edelstein had committed “an unprecedented violation of the rule of law” and demanded that he allow the parliament to vote on his replacement. Instead, Edelstein resigned to avoid carrying out the ruling.

Netanyahu’s closest allies, including the justice minister, rounded on the judges. Yariv Levin, the tourism minister, accused the chief justice, Esther Hayut, of launching a judicial “coup”. He mocked her, suggesting she come to the Knesset, backed by court guards, and open the parliament herself.

As veteran Israeli analyst Ben Caspit observed: “The coronavirus outbreak allows Netanyahu to keep undermining the rule of law for his own survival, almost unchallenged.”

Defending his decision to join the government, Gantz said: “These are not normal times and they call for unusual decisions.”

He hopes to persuade his supporters that he has not capitulated completely. If things go to plan – a big if – Gantz should become prime minister in a year and a half’s time.

Reportedly, Gantz has also insisted that one of his legislators be justice minister – presumably to ensure Netanyahu cannot evade trial indefinitely. But that safeguard was almost immediately undermined by legislation the emergency government started drafting to exempt Netanyahu from a current law that would prevent him from serving as an ordinary minister while under criminal indictment.

As a Haaretz editorial observed this week: “It’s hard to stomach this new reality in which people who, until not long ago, presented themselves as warriors against government corruption in general and the corruption attributed to Netanyahu in particular, have now become its defense attorneys.”

A further plus for Netanyahu is that in the meantime he will likely have Gantz as foreign minister – where he will be responsible, as a supposed “moderate”, for burnishing Israel’s “democratic” credentials abroad.

It may not be plain-sailing.

This month Israel scored record lows in annual global democracy surveys. Freedom House noted Israel had slipped six points – “an unusually large decline for an established democracy” – even before the latest events, noting that Netanyahu had “anti-democratic tendencies”.

Israel’s president, Reuven Rivlin, from Netanyahu’s own party, has similarly warned that the country’s democratic institutions are under threat.

Convoys of cars have been defying the lockdowns to protest at Netanyahu’s increasing flouting of norms.

The first test of the emergency government will be whether Gantz’s inclusion stays the demonstrators’ hand for the time being or inflames yet more protests.

• First published in The National

Democracy – Not!!

As I listened to some Trump Administration crony recently drone on about “American democracy” I recalled with sarcastic irony President Obama in Cuba lecturing Raul Castro on democracy. At the same time Republican officials in the State of Arizona and several other states were working to block as much citizen access to the voting booth as possible. There is nothing new here. When it comes to promoting “democracy” around the world the United States Government has a pretty dreadful record. Our role in assisting the overthrow of elected governments is on-going. Be it Iran in 1953 to Honduras under Obama and Clinton. As usual not a whisper from the corporate media. As pointed out by political theorists “media” is simply the propaganda vehicle for the dominant ideology.

The democratic republic established by our constitution in 1789 muddles along as a shadow of what it aspired to be. We are not a democracy. We have become an oligarchy (i.e., rule by the rich). Many Americans blame “Citizens United”, the U.S. Supreme Court decision legalizing bribery in our political system. The court has blessed a corrupt system making a mockery of democracy and gave the green light to the rich to buy politicians at every level of government. In a real democracy money does not count as freedom of speech.

Take a look at how we “elect” the President of the United States. We know from the 2000 election the people don’t elect the president. Something called the “electoral college” does — using the total number of Representatives and Senators from each state and at times the perverted legal logic of the U.S. Supreme Court! Clinton received three million more votes than Trump in 2016 but Trump is “elected” under a system designed to give slave holders more power when the constitution was ratified in 1789.

How about Congress? For starters take the United States Senate. Consider Wyoming has fewer than a million people while California has nearly 40 million. Both states have two Senators – would anyone in their right mind call that equal representation or democracy? I think not! Additionally California has one of the ten largest economies in the world while Wyoming ranks down there with the third world.

Twenty-five million more citizens voted for Democratic Senate candidates in the last election yet the Republicans have more U.S. Senators and legislative control. Thanks to Senate rules and the filibuster Senators coming from states making up only 27 percent of the total population of the country can kill any legislation. And do the math on how low population state U.S. Senators effect the electoral vote. One hundred of those votes for president are totally unrepresentative of the people. This is how it works out when low population states vote one way and a majority of the population goes another. California senators represent people and Wyoming – cattle! How does a majority prevail in such an undemocratic system? The answer is that it doesn’t and it is getting worse by the day.

Consider the House of “Representatives” — so called! Thanks to Republican gerrymandering of congressional districts in 2010, millions more Americans voted for Democratic candidates as their congress person only to have the Republicans take control of the House! Now good old Democratic Party incompetence can be blamed for some of this problem. The National Democratic Party was asleep at the switch in 2011 when the Republicans redrew districts guaranteeing their candidate would win. Take the State of Pennsylvania – Congressional Democratic candidates won over 100,000 more votes than Republican candidates statewide but fewer than one-third of the congressional seats.

And this was repeated all over the country. The Democrats took control of the House of Representatives in 2018 only because they increased their popular vote by almost 10 percent over the Republicans and they need to do better in 2020 to keep the House and retake the Senate. Trump and Republicans don’t care about majority voting. That is why they put all their effort into their right-wing base in the states that gave them a minority victory in 2016.

Take a moment to review our “democracy”, shall we? A congress that does not even begin to represent a majority of the people; a campaign “contribution” system that operates on bribery; a media owned by a half dozen corporations only concerned with profits and a professional military (opposed by the founding fathers) has replaced a citizen army. We have more people in prison than any other western country — we torture suspects. Election laws are written so only two parties have a chance at being elected. The constitutional right of the working class to join a union (First Amendment Freedom of Association and industrial democracy) is gone.

Chelsea Manning Is Free From Jail, Faces Exorbitant Fines

Manning speaking outside of the grand jury in Alexandria VA before being incarcerated

Alexandria – Today, March 12, prosecutors in the Eastern District of Virginia ended the grand jury of Julian Assange and Wikileaks in which Chelsea Manning refused to testify. As a result, US District Court Judge Anthony Trenga ordered the immediate release of Chelsea Manning.

Manning has been incarcerated since May 2019. Judge Trenga had tried to coerce Manning into testifying by imposing a fine for every day she resisted even though she said repeatedly that she would not violate her principles, which include opposition to the secret grand jury system, and would never testify.

A hearing was scheduled this Friday on a motion for release filed in February 2020 by her attorneys. Manning was arguing that her long time in jail had shown she could not be coerced to testify and that her incarceration was a punishment, which is illegal under US law. On Wednesday, her lawyers and Alexandria Sheriff Dana Lawhorne reported she attempted suicide in jail. With the end of the grand jury and Manning’s release, the Friday hearing was canceled.

In May 2019, Manning wrote a letter to Judge Anthony Trenga, the presiding judge regarding her incarceration. The letter examined the history of grand juries and how they no longer serve their original purpose. Manning wrote:

I am certainly not alone in thinking that the grand jury process, which at one time acted as an independent body of citizens along the lines of a civilian police review board, slowly transitioned into the unbridled arm of the police and prosecution in ways that run contrary to the grand jury’s originally intended purposes.

She pointed out how grand juries were originally independent of the police and were investigations by citizens without a prosecutor. In fact, grand juries were originally a check on government as Manning wrote, they “nullified unjust laws or their unjust application.” She told the judge that only the US and Liberia continue to use grand juries as many western and developed nations have abandoned the process.

After providing the judge with a “nuanced understanding of my conscientious objection to the grand jury” she wrote:

Each person must make the world we want to live in around us where we stand… I object to the use of grand juries as tools to tear apart vulnerable communities. I object to this grand jury in particular as an effort to frighten journalists and publishers, who serve a crucial public good. I have had these values since I was a child, and I’ve had years of confinement to reflect on them. For much of that time, I depended for survival on my values, my decisions, and my conscience. I will not abandon them now.

Manning has once again shown courageous political leadership, standing up to an abusive criminal justice system and exposing the corrupt grand jury process that has often been used for political purposes — from indicting anti-slavery activists to members of the Black Panther Party — and now against the political prisoner, Julian Assange, for being an editor and publisher who told the truth about US war crimes, violations of international law and how US foreign policy dominated by corporate interests.

Manning has also shown great bravery in advancing trans rights. While imprisoned in Fort Leavenworth, Kansas, she fought for her right to treatment. She also struggled for her right to be held in the women’s prison in Alexandria. Her openness about being trans has been an inspiration to others. As Lexi McMenamin wrote:

One in six trans Americans — and one in two black trans Americans — have been to prison, according to Lambda Legal. Incarcerated trans people face higher levels of violence, and experience higher rates of rape and sexual assault. According to the National Center for Transgender Equality, trans people are ‘ten times as likely to be sexually assaulted by their fellow inmates and five times as likely to be sexually assaulted by staff.’

The injustice against Manning continues. Manning’s attorneys sought to have the fines imposed by Judge Trenga vacated. Manning is facing more than $256,000 in fines, which have been accumulating at a rate of $1,000 a day. The court left those fines in place.

The incarceration of Manning was a violation of US law as the authority to incarcerate a recalcitrant witness was abused by Judge Trenga. Nils Melzer the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment wrote that Manning’s incarceration violated international law focusing on the prohibition against torture. While we are pleased Manning has been released, she should have not served any time in jail and the fines against her should be vacated.