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Gordon Campbell: Manning conviction | Dotcom’s latest round

Gordon Campbell on the Manning conviction, and Dotcom’s latest round

by Gordon Campbell

So, in a US kangaroo court, the sole presiding judge has found Bradley Manning guilty of espionage, theft and fraud under the US Espionage Act of 1917. So much for the whistle blower defence, and for Manning’s claim that his actions were intended – and resulted – in the American public being far better informed about the lies, subterfuges and illegal activities being carried out by their government in their name. In the court’s opinion, the fact that some of the emails and diplomatic cables that Manning helped to expose would have been read by al Qaeda was reason enough to convict him of espionage - although the court did also rule that this prospect didn’t amount to the even more heinous crime of “aiding the enemy.”

Interesting distinction. To “aid the enemy” there apparently had to be some evidence of direct contact with an enemy – whoever an enemy might actually be considered to be, in the circumstances of the so-called “war” on terrorism. Nice to have the court making a distinction between Wikileaks and al-Qaeda though, because some Republicans do get them confused. (For the record, Julian Assange is not the one-eyed guy in the turban.) Nevertheless, Manning’s collusion with Wikileaks did amount, in the court’s judgment, to “espionage” even though there is no evidence or allegation that Manning was working for any other foreign power. Or that what he helped to expose, actually aided a hostile power. Or that, on balance, any such damage was outweighed by the whistle blowing service he performed. One can see why the US didn’t want this case to go before a civilian jury, who might well have concluded that, on balance, Bradley Manning had actually done them a democratic service.

One can now expect that Manning will be put in the living hell of a US Supermax prison for decades – up to 130 years, in fact. Among other things, as the Guardian says, the persecution of Manning before, during and after this mockery of a trial is an assault on watchdog journalism worldwide.

The prosecution of Manning was intended to send a signal. If nothing else, it has done that. It has shown that when faced with evidence of its own wrongdoing, the current US administration focuses on punishing the messenger. It shows the First Amendment is easier to honour in the abstract than in reality. And it risks sending a message to nations that routinely imprison, assault or even kill journalists and activists, that when it comes to the crunch, the supposed leader of the free world is not much different.

Dotcom Watch
In yesterday’s Dotcom–related proceedings in the Supreme Court, the Crown raised the awful spectre of “Where would it all end.” Give them an inch of further evidence beyond the record of the case minimum and they’d ask for the moon and then there’d be more litigation, and then where would we be? (Back on Planet Earth, perhaps.) As Dotcom’s lawyer Paul Davison QC pointed out, the case being made by the US government against Dotcom is conceded to be entirely circumstantial – i.e., it is based on inferences and assumptions the US has drawn and made about the nature of Megaupload’s operations. At base, yesterday’s proceedings amounted to a request for further insight into the logical and evidential stepping stones on which the US has based its case – because without such information, the interests of justice would arguably suffer at the extradition hearing currently set down for November.

In fact, there is another rationale for why the normal framework for an extradition hearing should not be relied on, this time. The charge facing Dotcom is unprecedented. No one has ever before been charged with secondary copyright infringement construed as a criminal offence. Surely that novelty should put an extra onus on a requesting state to be forthcoming about what has hitherto always been treated by the courts as being at worst, a civil offence with civil penalties. Where is the evidence that the threshold to criminality has been crossed? Strict reliance on a “record of the case” summary in such circumstances would allow a simple assertion about criminality, with respect to a novel offence. One where, by definition, the "defendant” has no case law or precedent to turn to for guidance.

One could turn the argument – where will it all end? –on its head, and raise the same spectre in reverse. If a record of the case summary for a novel offence is accepted as sufficient by the courts, what comes next? Could a requesting state concoct any offence that it likes (“Criminal bartering with Klingons”) provide a mere summary of the case and expect the targeted person to be capable of defending themselves adequately in an extradition hearing without further insight into the validity of the case, or its substance? Surely not.


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