14 December 2010

Some thoughts on Julian Assange

Just a thought on the NYT report that Assange has gotten the UK courts to get a bail amount set for him.

First off the publication of the information that prompted his detainment is not the first time he has done so against the US government, and prior ones included the names and information about our sources and methods in Afghanistan.

Second the civil law may not hold much of a venue against a mere publisher of such information.

Third, drafting any such ex-post facto law is truly horrific as one could never know what is and is not legal to do at any time. The civil law is not the place of venue for Mr. Assange on such publication matters, quite obviously.

Thus we start with the full documents on the International Humanitarian Law held by the ICRC, and go down to the Methods and Means of Warfare.

From that list I will start with the Lieber Code that was instantiated by President Abraham Lincoln for the Union forces 1863, which continued to be used into the 1890's.  Thus this part is of interest not only about Mr. Assange, but his informants and highlighting is mine throughout:

Art. 88. A spy is a person who secretly, in disguise or under false pretense, seeks information with the intention of communicating it to the enemy.
The spy is punishable with death by hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy.

Art. 89. If a citizen of the United States obtains information in a legitimate manner, and betrays it to the enemy, be he a military or civil officer, or a private citizen, he shall suffer death.

Art. 90. A traitor under the law of war, or a war-traitor, is a person in a place or district under Martial Law who, unauthorized by the military commander, gives information of any kind to the enemy, or holds intercourse with him.

Art. 91. The war-traitor is always severely punished. If his offense consists in betraying to the enemy anything concerning the condition, safety, operations, or plans of the troops holding or occupying the place or district, his punishment is death.

Well that starts to put a sort of proper perspective on things as the Congressional Authorization for the Use of Force is a Declaration of War.  Thus those helping us in Afghanistan are brought into the conflict and the publication of their names is a direct help to the enemies of the US.  Really, you shouldn't do that during wartime.

Now to skip ahead to the Hague Convention II 1899:

On spies
Art. 29. An individual can only be considered a spy if, acting clandestinely, or on false pretences, he obtains, or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.

Thus, soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly, the following are not considered spies: soldiers or civilians, carrying out their mission openly, charged with the delivery of despatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver despatches, and generally to maintain communication between the various parts of an army or a territory.

Art. 30. A spy taken in the act cannot be punished without previous trial.

Art. 31. A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.

Whoever provided the information to Mr. Assange would be considered a spy in the Hague Conventions.  Would Mr. Assange?  If he was just given the information and went through proper channels at DoD to ask about publication, the answer would be 'no': the information would have been cleared by a power in the war.  As he did not do so and did communicate the information to our enemies in the field, then his activity is that of espionage.  Similarly the 1907 Hague Convention IV has the same verbiage for Spies.

Now onto another part of this with the Hague Convention V 1907 which deals with Neutral countries:


Article 1. The territory of neutral Powers is inviolable.

Art. 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.

Art. 3. Belligerents are likewise forbidden to:
(a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;
(b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.

Art. 4. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.

Art. 5. A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory.

It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory.

Art. 6. The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents.

Art. 7. A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.

Art. 8. A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.

Art. 9. Every measure of restriction or prohibition taken by a neutral Power in regard to the matters referred to in Articles 7 and 8 must be impartially applied by it to both belligerents.

A neutral Power must see to the same obligation being observed by companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus.

I do love the formality of such things!

The Convention covers the countries and Neutral persons:



Art. 16. The nationals of a State which is not taking part in the war are considered as neutrals.

Art. 17 A neutral cannot avail himself of his neutrality
(a) If he commits hostile acts against a belligerent;
(b) If he commits acts in favor of a belligerent
, particularly if he voluntarily enlists in the ranks of the armed force of one of the parties. In such a case, the neutral shall not be more severly treated by the belligerent as against whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act.

Art. 18. The following acts shall not be considered as committed in favour of one belligerent in the sense of
Article 17, letter (b):
(a) Supplies furnished or loans made to one of the belligerents, provided that the person who furnishes the supplies or who makes the loans lives neither in the territory of the other party nor in the territory occupied by him, and that the supplies do not come from these territories;
(b) Services rendered in matters of police or civil administration.

Well espionage, which includes the transmittal of information is helping out a party to a conflict or, more appropriately, against a party to a conflict.

Now a fascinating addition to the Hague Conventions are the Hague Rules 1923 that cover wireless transmission, as they would also apply to our current mixed-mode internet:

Art. 8. Neutral mobile wireless stations shall abstain from keeping a written copy of wireless messages received from belligerent military wireless stations, unless such messages are destined for the said neutral stations.

The violation of this rule entitles the belligerents to confiscate the texts in question.

Oh, and that would mean Mr. Assange was taking sides in the conflict(s) the US is in, by his own action.

The Fourth 1949 Geneva Convention only covers espionage as it relates to occupied territory, and deals more in the field than things outside of it.  Full trials are to be provided for 'protected persons' (civilians) in the area of occupation for any offenses (military or civil) done there.  Thus as Afghanistan has been liberated but still requires the presence of US forces to maintain its integrity against hostile elements at war with both Nations, that means that either party in the territory (Afghanistan or the US) may utilize the general schema.  Now given that full trial and appeals are available, lets look at what is within its confines:

Art. 68. Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed. Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty. The courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period.

The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty against a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.

The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance.

In any case, the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence.

Art. 69. In all cases the duration of the period during which a protected person accused of an offence is under arrest awaiting trial or punishment shall be deducted from any period of imprisonment of awarded.

Art. 70. Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war.

Nationals of the occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from the occupied territory, except for offences committed after the outbreak of hostilities, or for offences under common law committed before the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in time of peace.

So it is a multipart thing that allows for trials: espionage, or serious acts of sabotage against military installations, or intentional offenses which caused the death of one or more persons.  For Afghanistan the recourse is to its own civil code to see what the punishments would be, while for the US we could use our military code or the Taliban civil code as that was pre-existing prior to hostilities.  Really you would have a better chance with the current regime than the US.  Perhaps Mr. Assange will give himself up to them?

The US has not signed up to the 1977 Geneva Convetions so they are not considered as part of what is or is not espionage for the US.

Thus we quickly run out of what to do with Mr. Assange: he is performing the act of partisan espionage contrary to his status as Neutral citizen.  He is violating the Neutrality that is garnered him by being a non-combatant civilian and actively working against one of the belligerents in a conflict to supply information to the enemies of that belligerent.  Yes our civil laws may be lacking here, but we are at war and peace has not been declared in either Iraq or Afghanistan, nor have the Congressionally set objectives given to the Executive been met.

The case of Julian Assange and Wikileaks is not one of civil courts, but courts martial, and any Nation involved in Afghanistan can put out that he is a threat to their troops in the field and their allies.

Of course that would be the civilized thing to do: get Mr. Assange a full military trial with defense lawyers to account for his activities of breaking his neutrality and publishing such information injurious to the US and those who have helped it, as well as those we have liberated.  But then we stopped acting civilized when we started trying to treat war as a 'police matter'... instead of as war.

Perhaps we can start to treat civil actions differently from martial actions, and start to recognize those making Private War upon us just as all Nations since the dawn of history have done.  Mind you, that isn't pretty.  But it is civilized, if you have the stomach to be civilized, that is.

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