Reign of Terror
SCOTUS ... Shocker decisions from the latest term ... The Trump Docket ... Presidential immunity ... Gratuities and bribes ... Obstruction ... Admin law trashed ... Criminalising the homeless ... Espionage Act - two sides of the coin for Assange and Trump ... At last, someone convicted at Guantánamo of a real war crime ... Roger Fitch reports from Washington
"Somewhere along his life path, his Saurian eye identified a need among a swath of Americans for nonsensical gibberish … In another era, Trump's true calling in life would be a travelling tentpole circus barker, hustling from town to town with an entourage of snake oil salesmen, other grifters, and assorted freakish animal and humanoid curiosities... that's entertainment, and as ever, it serves a nefarious purpose - diverting the crowd from the pickpockets" - Nina Burleigh
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The Justice Department has filed two contentious espionage cases in recent years. One, against an Australian citizen, is novel, an actual Trumped-up crime. The other, filed by a special counsel appointed under President Biden, is against Trump himself.
Unlike Julian Assange's "offences", the charges against Donald Trump fit perfectly: it's a straightforward prosecution for wilfully and knowingly taking and concealing classified documents, misusing them and obstructing their retrieval.
The Espionage Act, 18 USC 793, used in both prosecutions, does not say the accused must be working with another country to deliberately harm the US, only that it is a crime to have ...
"... unauthorized possession of, access to, or control over [information] ... the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation," and to wilfully retain it while failing "to deliver it to the officer or employee of the United States entitled to receive it."
Prosecutors are not required to prove that the defendant knew the information could harm "national security", only that any reasonable person would understand the harm it could do. It's not necessary to prove actual damage or even that the documents were classified, only that they relate to US national security.
The Espionage Act was first enacted in 1917 during WWI and was initially used quite oppressively. Modern prosecutions, however, have typically been of spies and careless public or former public officials, and recently, whistleblowers.
Until Julian Assange, the Act was never used against a journalist, and Obama declined to use it against the Australian. In fact, Obama commuted the sentence of Assange's alleged co-conspirator, convicted of leaking the same information.
Nevertheless, the experiences of Assange and Trump have greatly diverged. Whereas Julian Assange was harassed and persecuted for years before indictment, Donald Trump luckily landed in the court of a judge he appointed, Aileen Cannon, who appears to be auditioning for Trump's next supreme court vacancy.
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Assange: might have beaten the Espionage rap
The conviction of a journalist under the Espionage Act was only certain with a guilty plea; it's not clear the charges would have been upheld in a US court had extradition proceeded. Like Guantánamo, only the use of plea deals with no appeal allows legally-dubious charges to stand.
In fact, the similarity of the Assange and David Hicks prosecutions is striking. Applying the Espionage Act to Assange's journalism is reminiscent of David Hicks' "war crime" conviction for the invented (later invalidated) "material support for terrorism".
Sadly, the Pentagon continues its attempts, through guilty pleas, to convert civilian offences (terrorism and conspiracy) into "war" crimes: US-created offences unknown to international huminatarian law and thus not part of the "law of nations" as required by the US Constitution. The inchoate offence of "conspiracy" is one such.
In 2014, a military commission charged Abd al-Hadi with various charges and in June 2024 accepted his guilty plea for certain ones, including "conspiracy". Al-Hadi did commit war crimes in an international conflict, and he's accountable for those recognised under IHL, but not for the American-concocted "conspiracy".
Al-Hadi's lawyers managed to strip out of his guilty plea all charges except three valid ones: treachery or perfidy; attacking protected property; and attacking civilian objects, plus the invalid conspiracy.
Meanwhile, Al-Hadi has made history: he seems to be the only person ever convicted at Guantánamo for committing actual, internationally-recognised war crimes that occurred during an international conflict involving the US.
READ THE ENTIRE FITCH HERE.
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