The Government Can’t Make Up Its Mind Whether WikiLeaks Amounts to Aiding Al Qaeda or Not

The government’s arguments in Hedges v. Obama are getting more and more inconsistent.

This is the case, recall, where Chris Hedges, Birgitta Jonsdottir, and several other people challenged the section of the NDAA that affirmed the President’s authority to militarily detain or deport (among other things) “covered persons.” Because the government repeatedly refused to say that the plaintiffs were not covered by the section, Judge Katherine Forrest not only found they had standing to sue, but she enjoined enforcement of the law.

Now the government is trying to unfuck the fuckup they made at oral arguments by offering caveated assurances that none of the plaintiffs would be covered by the law. (h/t Ben Wittes) But look carefully at what they say:

The government argued in its briefs that the plaintiffs cannot reasonably believe that section 1021 would extend to their conduct, in light of law of war principles, First Amendment limitations, and the absence of a single example of the government detaining an individual for engaging in conduct even remotely similar to what is alleged here. See Gov’t Initial Mem. 12-13. But at argument the government did not agree to provide specific assurance as to each plaintiff, a request that the government considers problematic. As a result, this Court deemed the government’s position to be unclear regarding whether section 1021 could apply to the conduct alleged by plaintiffs in this case. To eliminate any doubt, the government wants to be as clear as possible on that matter. As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.5 Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.

5 This case does not involve the kind of independent expressive activity that could support detention in light of law of war principles and the First Amendment. In contrast, for example, a person’s advocacy, in a theater of active military operations, of military attacks on the United States or the intentional disclosure of troop movements or military plans to the enemy, or similar conduct that presents an imperative security threat in the context of an armed conflict or occupation, could be relevant in appropriate circumstances. See Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, arts. 5, 41-43, 78. As discussed further below, it is not appropriate to expect the government to make categorical statements about the scope of its detention authority in hypothetical scenarios that could arise in an armed conflict, in part, because that authority is so context-dependent.

The government is not being at all clear here! It is reaffirming it stance that it would be problematic to offer assurances about the plaintiffs. It is saying it “wants to be as clear as possible” on this issue, but then says only if plaintiffs’ descriptions of their activities are accurate, then they don’t implicate military detention authority.

Let me spoil the surprise. The government doesn’t believe all the plaintiffs’ descriptions are accurate.

For a hint of why, look at the footnote. First, you’ve gotta love their caveat that “in a theater of active military operations.” The government has repeatedly said the entire world, including the US, is the battlefield in this war on terror. So they really mean “anywhere.”

But note they include “intentional disclosure of troop movements or military plans” to the enemy. That passage gets at their problem here.

That’s because, in spite of the fact that they say, “Section 1021 has no application to unarmed groups like WikiLeaks,” and remind they’ve offered assurances that Jonsdottir “could [not] possibly be deemed to fall within the scope of section 1021,” the government’s actions against WikiLeaks belie those claims.

That’s true, first of all, because DOJ specifically excludes entities like WikiLeaks from their definition of protected journalistic activities. (Indeed, I’ve deemed this passage from the DIOG the “WikiLeaks exception.”)

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

Reassurances from DOJ that “journalistic activities” would not make Jonsdottir a covered person for her WikiLeaks work are worthless since DOJ doesn’t consider WikiLeaks’ activities journalistic activities.

More importantly, the government has already made it clear that they believe WikiLeaks amounts to aiding al Qaeda in DOD’s case against Bradley Manning. In fact, they base their Aiding the Enemy charge against Manning on the claim that by leaking materials to WikiLeaks, he knowingly made it available to al Qaeda.

In deliberations over a defense motion to dismiss the “aiding the enemy” charge, the government argued that the “enemy” had gone regularly to a “specific website and Pfc. Bradley Manning knew the “enemy” would do this when he allegedly provided information to the website.

The deliberations occurred in the second day of a pre-trial motion hearing at Fort Meade in Maryland. Manning, who is accused of releasing classified information to WikiLeaks, is charged with “aiding the enemy,” an Article 104 offense under the uniform code of military justice (UCMJ). It is a federal offense that could carry the death penalty (although the government has indicated it will not press for that in sentencing).

Judge Col. Denise Lind asked military prosecutor Capt. Joe Morrow if “the government intends to show that there is a particular website that this information was sent to and the accused was aware the enemy used that website.” Morrow said yes.

What this means is that the government is essentially arguing that “the enemy”—which the government has said is al Qaeda or any terror groups related—frequently accessed WikiLeaks and any “intelligence” provided. Manning knew that by handing over information to website he would provide assistance to “the enemy.”

And Judge Lind bought off on this argument, at least in theory.

So long as the government sustains this bogus Aiding the Enemy charge against Bradley Manning, then they implicitly are also arguing that Jonsdottir, by actually publishing the information allegedly provided by Manning, also intentionally provided intelligence to al Qaeda.

It seems, after being embarrassed by their past obstinance, the government is willing to say anything to avoid individuals from getting standing to challenge their counterterrorism abuses. Are they worried enough to drop that Aiding the Enemy charge yet?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

35 replies
  1. Peterr says:

    The three greatest dangers that Hedges et al. pose to the government can be summed up in three words: sunlight, oversight, and accountability.

    Of course they are embarrassed, but not so embarrassed that they’ll stop trying to avoid those three dangers by digging themselves a deeper hole.

  2. bmaz says:

    No, not worried enough to drop the aiding the enemy charge yet. In fact, I wonder if the motion for reconsideration is not just aimed at Forrest, but as much or more so beefing up the record a little before it gets sent up. It is a curious pleading in how it attempts to correct the record without, you know, correcting the record.

  3. emptywheel says:

    @bmaz: That plus they really reverse their stance on the AUMF. It’s a really really stupid filing.

    But then so is their counterterrorism stance.

  4. emptywheel says:

    Also, given their repeated harassment of journalists who independently report on drone strikes and civilian casualties, I’m wondering if they mean that “reporting from where drones have moved” is tantamount to reporting on “troop movements”?

    They are that nuts.

  5. bmaz says:

    @emptywheel: Well, right. My guess is that chatter we have seen about cracking on the reporters who do Yemen and these types of stories is not all simple steam, but may have some fire down in the hole.

  6. Story of O says:

    Administration officials better clam up — al Qaeda, The Enemy(TM), is listening and is being materially aided by their statements.

  7. P J Evans says:

    It’s making me wonder if the craziness in the GOP is contagious: it seems to be spreading into the WH and the cabinet via Congress.

  8. JTM says:

    Out of curiosity, how does an everyday citizen know which countries or groups he or she is allowed to help and which are enemies? Is there a list somewhere or is that a secret, too?

    For example, if I get an email from person X in country Y asking what appears to be academic question about my work, the answer to which, however, could be used to do nasty things, is there any way for me to check whether I’m allowed to answer? (I hadn’t thought about this before, but I actually do get emails like this. I always ignore them because I’m a lazy sod, but maybe said laziness has been a “wise” move.)

  9. Michael Murry says:

    The enemy hates us for our freedom to say stuff and thereby give them “valuable intelligence.” Our own government also hates us for saying intelligent stuff. It makes them look so stupid by comparison.

  10. Arbusto says:

    I didn’t know that the First Amendment included the phrase “professional journalist”, especially since 99% of the fourth estate today are in the main dilettantes. Silly me. So now the DoJ will have a salary test for reporters?

  11. Jeff Kaye says:

    @emptywheel: Oh, yes, they are that nuts, and the day is coming when they will step over that line (if they really haven’t already, e.g. Mehenna).

    By the way, if we change the emphasis bolding on the following I think we get the full ominous meaning, without having to finesse the “theater of active military operations” language.

    In contrast, for example, a person’s advocacy, in a theater of active military operations, of military attacks on the United States or the intentional disclosure of troop movements or military plans to the enemy, or similar conduct that presents an imperative security threat in the context of an armed conflict or occupation, could be relevant in appropriate circumstances.

    The bolded material shows that we do not need the reference of a “theater of active military operations,” but merely “similar conduct” that presents an “imperative security threat in the context of…” — Note, not in the geographical area of…

    Hence, anything they feel is a security threat (imperative = urgent, pressing, vital) to any of their “armed conflicts” or “occupations” is what they are talking about. When you realize that revealing any of what is actually “imperative” is not necessary if the government says it is secret and revelation would harm the government (only refer to your very last posting), then it is quite clear that the legislative and judicial parameters for the police state are now in place.

    It saddens me a great deal to say I think that stage is bound to occur. The task of remaining numero uno as a world empire will necessitate a harsh intolerance of domestic dissent and of freedom of speech. The actual facts about what this government does have already been turned into supposed instruments of “terrorism.” It only remains to be seen how the social body politic will respond to this. History tells us that such domestic repression, at a scale, perhaps, of what Latin Americans saw during the Condor years (or maybe the Stalinist experience in East Europe is more appropriate a comparison) will not engender protest or rebellion, but instead shameful silence and collaboration.

    My thanks to you and those other brave enough to try and speak out now. Note that when I say “bound to occur”, I don’t mean with the inevitability of scientific certainty. The crazies in government will first have to deal with internal dissent from some within those very agencies they will use to implement the repression, good people who have memories of what constitutional civil liberties were supposed to be. However, the lesson of how a bureaucracy was inured and suborned to torture — and I mean here the AFM’s Appendix M, and the use of techniques like intense isolation, sleep and sensory deprivation, and drugs, as used on Padilla and Al Qahtani (and allowed by Appendix M and AFM generally) — this lesson bodes very, very ill for what is to come.

  12. pdaly says:

    On a lighter note, I was trying to commit to memory the name of this particular case Hedges v. Obama and realized it is too bad that it was NOT named “Hedges v. Bush.”

    I found a website that creates anagrams. Here’s a sampling of anagrams from the letters of
    “Hedges v. Obama”:

    Bag Shame Dove
    Evade Shag Mob

    Heaved Gas Mob
    Evade Gash Mob

    Bad Mega Shove
    Bad Heave Smog

    Behave Ma Dogs
    A Behaved Smog

    Bash Mega Dove

    for our Canadian readers:
    Savaged Mob Eh

    and for our British readers:
    Ameba Shod Veg

    (thanks to the website

    And anagrams made from the letters of
    “ emptywheel”:

    Weep El Myth

    Hew El Empty

  13. pdaly says:


    bmaz, you need to add to your moniker. mabz just doesn’t do you justice.
    So I borrowed this from your twitter description of yourself:

    “bmaz cranky observer”. Now you’re in business…

    Brazen Bravery Smock
    Mock Very Brazen Bars
    Brave My Brazen Rocks

    Brazen Mob Sky Carver
    Smack Very Brazen Orb
    Croak My Brazen Verbs
    Bronze Mask Brave Cry

  14. pdaly says:

    @Jim White:

    wasn’t sure what a Jeti was, so I googled it. It means lots of things scientific as well as a synonym for “yeti” or “Big Foot” in cryptozoology.

  15. Focused Like A Lazer says:

    @Jeff Kaye: while the rest of the commenters below chase after silly shiny objects i want to thank you for a very insightful comment.

    this line >>> it is quite clear that the legislative and judicial parameters for the police state are now in place. >>> is definitely most true.

  16. Jeff Kaye says:

    @bmaz: To make clear. I believe the pieces are in place, but we do not live, as yet, in a police state. Indeed, my comment was that I am saddened to come to the point where I believe that is a near inevitability sometime in the near future. And don’t make me define “near”! At the same time, I indicated the formation of such a state would be resisted, and not just from without (in fact, I think less from without), but from within.

  17. lmllr1 says:

    “Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work,”

    Ironically, the short version of the Collateral Murder video would fall into that category because it was edited. And I don’t think Jonsdottir would have been the one who physically posted the full version online. Does she perhaps have an out here?

  18. bmaz says:

    @Jeff Kaye: Well, agreed, the trend in that direction is clear on a number of key fronts. I not only would not want to define “near”, an actual hard definition of “police state” is also pretty near impossible. But we got the problems, irrespective of the semantics.

  19. polysensory says:

    These bizarre and manipulative interpretations of the law, here, in the supreme court and all the courts, the military, the police and on and on are malignant and killing our democracy!

  20. Jeff Kaye says:

    @bmaz: I have worked very intimately with those who were imprisoned under real police state, e.g., Poland after marital law, and I can tell you that if or when the US experiences such a turn of events, the result would be quite horrific. Nothing I say here, though, undercuts the fact that thousands live lives of horror in US today, due to poverty; unfair incarceration for use of, say, pot; experience racial discrimination; are subjected to tortuous prison conditions, etc.

  21. What Constitution says:

    Jeff Kaye’s initial observations were, as noted, very well put. And while it’s true we don’t as yet live in a full-fledged “police state” with all the bells and whistles and leg-irons, the pieces are settling into place and, if we continue as a people to react only as frogs expressing appreciation for the warm (and getting warmer) water in this pot, the outcome does seem inexorable. So Arbusto’s question — “I’d like any serious suggestion on how to reverse course” — is indeed the one that merits some real, serious attention.

    There is a First Principle available, though it seems to have fallen out of fashion to such a degree as to currently merit nothing but derision for those “pre-9/11 enough” to mention it. So I will. It’s a throw-away line in the Constitution by which the President of the United States says that he/she does “solemnly swear to protect and defend the Constitution of the United States”. We built a system of government around placing that obligation on those who would govern us — they do this, that system may work; they don’t, it doesn’t have a chance.

    So why is it considered passe to mention that? Why is this never asked by Serious People of Obama, or of Bush before him (which, frankly, arguably justifies Obama’s conduct today under the constitutional structure). Why is it asked of nobody? And why does our media dismiss the question as a luxury of “30,000 feet?”

    It’s really easy to respond to the appalling illegalities of our international postures in the “‘War’ on ‘Terra'” with trite banalities like “they hate us for our freedoms” or “keeping Americans safe” but to have our leaders spout such things should never be accepted as a substitute for reason, constitutional analysis or international law. How can we even momentarily accept “look forward not back” as a basis to excuse torture, or “The President gave an order, that’s all the process [the dead, targeted American citizen] was due”? How does anyone who has read the constitutional oath of office permit such acts to go unchallenged? Just wondering. The Constitution is not a self-executing document. Anyone interested in asking why it so completely is ignored with respect to the fundamental obligation that the actions of those entrusted with its enforcement be guided by adherence to its tenets?

    Sure, I’m “missing something.” What?

    And thanks to all here for trying.

  22. bmaz says:

    @Jeff Kaye: I don’t think we really disagree at all here. And the semantics are, as noted, charged emotionally and morally. Interestingly, I spent some time looking at the Reporters Without Borders and others, and what is striking is that the US is still, after all the, both perceived and real, decline, pretty much in the very upper echelon of “open democracies”. There are now, and as I recall never have been, no more than a small handful of nations on earth rated better.

    It would seem one may be able to make out the case that the decline is fairly across the board, which is kind of an interesting thought. I don’t suggest that is truly the case empirically, but it looks like a decent question.

  23. Ben Daily says:

    This is the pattern with the Obama administration: declare openness to be a goal and then sign laws like NDAA and prosecute cases like Bradley Manning threaten Wikileaks/Brigetta Jonsdottit. Who exactly is running the show and what do they believe in?

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