‘Imagine what they did when we couldn’t see their crimes on our phones,’ reads some text scrawled in permanent marker on a United States Postal Service priority shipping label, plastered to a wall. “This is a picture I took in London, a month ago,” says Italian filmmaker Mr. Manolo Luppichini. This sums up, in his view, “what we are facing now.”
He is speaking as a panelist for the 32nd conference of the Disruption Network Lab (DNL), a Berlin-based nonprofit organizing a series of events “focused on exposing systems of power and injustice” around the world. The DNL team is led by founder and artistic director Dr. Tatiana Bazzichelli, a Berlin resident since 2003. Prior to founding the DNL in 2014, Dr. Bazzichelli worked in the Italian digital culture and activism scene since the late 1990s, and is credited for introducing the discourse about whistleblowing to the annual transmediale festival during her time as program curator, most prominently with the keynote event “Art as Evidence.” The team efforts of the DNL are well known and highly respected in several international communities.
The theme of the 32nd conference is “resisting digital authoritarianism.” Two weeks ago, Mr. Luppichini had been in Rafah at the Egypt-Gaza border, and now he is here to present about the work of the GazaWeb “gardeners” setting up a grid of eSIM hot spots – primitive bucket, pulley, and pole structures nicknamed “network trees” – to restore mobile connectivity in areas where the internet infrastructure has been damaged or destroyed. This project is sponsored by the Italian NGO Associazione di Cooperazione e Solidarietà (ACS Italia). Without such aid, many families would remain completely cut off from each other, in the dark about whether their parents or children are even still alive and safe. “… even if it will be the last call, let me tell them goodbye .. before they get killed,” wrote one person while requesting an eSIM activation code from Egyptian writer and journalist Mirna El Helbawi, who is running one of many distribution campaigns.
Dr. Bazzichelli references their inaugural 2015 event “Drones,” which featured American drone whistleblower Brandon Bryant and Palestinian journalist Asmaa Al-Ghul, who could only speak remotely due to border controls. Giving a platform to those studying and affected by the hi-tech tools of warfare, as well as former perpetrators willing to take public accountability for their role in these systems of oppression – these issues are not only on the radar of ongoing investigations by their new research institute, but ones that have been close to their heart for the last decade and beyond.
“Where can we go in order to find those with the power to halt these violations and tell us the truth of what is happening?” wrote Mr. Bryant in his essay contribution for their collective work ‘Whistleblowing for Change: Exposing Systems of Power and Injustice’, published in 2021. “The organizations created in order to act as referees have no power to enforce the rules. Those that enforce the law do so at the discretion of those that profit from breaking those societal rules. Those who play the game and do so in the name of honor and fairness are punished.”
As published in “Extradition of Julian Assange: US assurances are full of loopholes” regarding the case of Julian Assange, Der Freitag covered the recent invocation of states secrets privilege by CIA director William J. Burns in the Kunstler v. Central Intelligence Agency legal case, opened by journalists and lawyers who were alleged victims of targeted surveillance and intrusion. That privilege is currently being invoked in another case, to attempt to shield those allegedly responsible for the torture of detainees at the former Abu Ghraib maximum-security prison in Baghdad.
State secrets privilege is one of many privileges afforded to the executive branch of government in the United States. According to a government-sanctioned essay summarising the history of the privilege, “in civil cases, the government may invoke the State Secrets Privilege to ensure the government is not forced to reveal military or other secrets. By contrast, in criminal cases, the Sixth Amendment guarantees a defendant compulsory process to obtain witnesses, and the Due Process Clause of the Fifth Amendment guarantees access to relevant exculpatory information in possession of the prosecution.” Its invocation essentially renders certain evidence, or even the entire subject matter of a case, ‘nonjusticiable,’ e.g. “not capable of being decided by law or a court.” Unfortunately, the U.S. Supreme Court (SCOTUS) has previously decided that “the conduct of foreign relations is the sole responsibility of the Executive Branch. As such, the Court found that cases which challenge the way in which the Executive uses that power present political questions,” which has often resulted in them being declared ‘nonjusticiable.’ In short, this means that anyone alleging to have been a victim of war crimes will struggle to bring their claims against the state or military, which can be considered immune from liability or prosecution. This includes American journalists who simply wish to know why their own government has marked them for death without due-process or reprieve, as is the case for Mr. Bilal Abdul Kareem, whose petition to SCOTUS was denied in November 2021. The topic of presidential immunity from prosecution for alleged domestic crimes, is in fact being discussed by SCOTUS right now.
Twenty years after CBS News first published the disturbing photos “showing American soldiers abusing and humiliating Iraqis being held at [the] prison,” three of those victims finally have a civil case being heard in the U.S. District Court in Alexandria, Virginia, against the multinational U.S. government contractor CACI Premier Technology, Inc., a U.S.-based subsidiary of CACI International Inc., which “supplied the interrogators who worked at the prison.” The Alexandria court is the same court which had convened a grand jury investigation since at least 2011, then accidentally revealed the existence of a sealed indictment again Mr. Assange due to a copy-paste error in 2018, and now seeks to prosecute Mr. Assange for publishing, among other material, the Collateral Murder video in April 2010, which showed the wounding and killing of Iraqi civilians and Reuters staff by a U.S. Apache helicopter in July 2007.
Al Shimari, et al. v. CACI was first initiated as one of four Abu Ghraib victim lawsuits in June 2008, with the original complaint filed by the New York-based Center for Constitutional Rights (CCR) on behalf of lead plaintiff Suhail Najim Abdullah Al Shimari. The complaint was amended a few months later to add Taha Yaseen Arraq Rashid, Al Jazeera journalist Salah Hasan Nusaif Al-Ejaili, and Asa’ad Hamza Hanfoosh Zuba’e as plaintiffs. Mr. Rashid – whose detention at Abu Ghraib included being “forcibly subjected to sexual acts by a female” and “forced to witness the rape of a female prisoner” – was dismissed from the case in February 2019, when U.S. District Judge Leonie M. Brinkema otherwise permitted the three other plaintiffs to proceed to trial. In October 2023, after a couple more years of CACI still attempting to get the case dismissed, Brinkema finally ordered that the jury trial would commence in April 2024.
Last week, AP News reported that testimony at trial was being “thwarted to some extent by the U.S. government, which invoked the state secrets privilege over evidence CACI sought to introduce.” In other words, the U.S. government is still blocking a for-profit private company from disclosing information about its alleged involvement in the torture of civilians, none of which were ever charged with any crimes.
Brinkema has expressed frustration throughout the case about the government’s invocation of state secrets. Earlier in the trial, government lawyers jumped up to object to an exhibit listing a series of names identified in one of the generals’ Abu Ghraib investigations, even though the names have been a public part of that report for 20 years.
On Thursday, outside the jury’s presence, she said the government’s assertions over seemingly petty issues like a witness’ educational background or whether a witness had been trained about protections accorded in the Geneva Convention “makes the U.S. government look very foolish.”
This represents one more example of a decades-long effort by the executive to maintain secrecy classifications on any public information that may paint an unflattering picture of the actions of the military and intelligence agencies. “The [Bush and Obama] Administrations have even argued that cases must be dismissed entirely even when all the underlying facts are already public, if the judge’s conclusion about these facts would confirm the allegations,” wrote the Electronic Frontier Foundation (EFF), a U.S.-based ‘digital civil liberties’ nonprofit, in the context of criticising NSA mass surveillance programs. Notably, while the protection of national security is always cited as the justification for the privilege, a 2009 policies and procedures memorandum published by the Justice Department states that the privilege will be invoked when “genuine and significant harm to national defense or foreign relations is at stake” [emphasis added]. It is unclear how a ‘genuine and significant harm’ to foreign relations is scoped.
As is well-known to Judge Brinkema, this is not even the first time that state secrets privilege has been invoked in this case. In CACI’s December 2018 motion to dismiss, they wrote:
Unsurprisingly, CACI PT sought to compel the United States to produce information identifying the personnel who participated in Plaintiffs’ interrogations, as well as documents detailing authorized interrogation approaches for Plaintiffs’ interrogations and contemporaneous reports about events occurring in those interrogations.
In response, the United States – on three occasions – asserted the state secrets privilege with respect to the information and documents sought by CACI PT.
CACI argued, referencing a 2007 Fourth Circuit ruling in the case of Khaled El-Masri, that “the unavailability of the privileged information unfairly cripples a defendant’s capability in mounting a defense… CACI PT cannot properly defend itself without using the privileged information.” In March 2019, Brinkema also considered CACI’s motion for ‘derivative immunity,’ that is, whether “any sovereign immunity granted to the United States must apply equally to it due to its status as a government contractor.” While she did not grant this motion, she did dismiss the U.S. government as a defendant in the case.
Mr. El-Masri, a German citizen, had been “disappeared, detained, and abused by the CIA for over four months in early 2004.” During the second week of the extradition trial for Mr. Assange in 2020, Mr. El-Masri’s oral testimony was blocked through a convenient combination of technical difficulties and the U.S. prosecution team’s wish that he be dismissed as a witness altogether. Mr. Assange, who was expected by Judge Baraitser to remain silent during the entirety of his own trial, spoke up in a rare moment from within his glass cage at the back of the courtroom: “I will not censor a torture victim’s statement to this court.” Mr. El-Masri had a gist of his statement read into the court record by defence barrister Mark Summers QC instead. From the full written statement:
At each stage of my raising my predicament, governments, both my own and those who played a direct part, have sought to discredit my account and in a number of different ways attempted to silence me. But, at each juncture it has been journalists and investigators informed by WikiLeaks documents that have been able, through their painstaking and diligent work, to corroborate my story and restore credibility to my account.
… No one has ever been held accountable for what happened to me beyond ‚Oral admonishing‘ given to three CIA attorneys.
He cited a classified February 2007 cable sent from the U.S. Embassy in Berlin, signed by then U.S. Ambassador to Germany William Robert Timken Jr., which stated that the embassy’s Deputy Chief of Mission (DCM) John M. Koenig had told then deputy national security advisor (Abteilungsleiter Außen- und Sicherheitspolitik im Bundeskanzleramt) Rolf Nikel that, in relation to the El-Masri case, „issuance of international arrest warrants [for the CIA agents] would have a negative impact on our bilateral relationship.“ This cable was one of many diplomatic cables, released by WikiLeaks and its international partners, that were reported on by both American and German media outlets in December 2010.
“Today, though, his case has been closed, filed away and forgotten. Just not for Masri, not for his wife and not for their six children,” reported Der Spiegel in July 2023, after a joint interview with him in Graz, Austria. “Anyone who listens to Masri today can sense how fresh the experiences still are in his mind today. His eyes water and his voice cracks as he speaks.”
The American Civil Liberties Union (ACLU) – which not only represented Mr. El-Masri in the U.S. case but still represents him in a pending case before the Inter-American Commission on Human Rights (IACHR) – wrote in January 2007 that “this once-rare tool [state secrets privilege] is being used not to protect the nation from harm, but to cover up the government’s illegal actions and prevent further embarrassment.”
“The state secrets privilege undermines the very idea of an independent judiciary; contradicts the core idea of judicial review, which is independent judges making independent evaluations of all of the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear,” wrote the CCR in October 2007, pre-dating their Abu Ghraib lawsuits.
“[Accountability] cannot come from State Players, who are strictly adhering to another of Sun Tzu’s principles, that war is deception, for the State is at war with everyone, including itself. We cannot rely on the wealthy who directly profit from the deception of the People and the deaths of proclaimed enemies,” wrote Mr. Bryant in ‘Whistleblowing for Change.’
“The second workshop is also really close to our heart,” said Dr. Bazzichelli during the opening of the DNL conference. “We know there is lot of misinformation around the case of Julian Assange.”
A sidetable covered in books, informational pamphlets, stickers, badges, and t-shirts had been arranged by Raja Stutz and Claudia Daseking, activists and organisers from the Assange Support Berlin group. Conference attendees who wanted to know more about the Assange case could visit the table to ask questions, find resources, and mark upcoming film screenings or local street actions on their calendars. On Sunday, they led a workshop to discuss “strategies for reclaiming public opinion about WikiLeaks‘ contribution to press freedom and our right to know,” because, as their description says, in order “to refute lies you need to know a lot more than the spreaders of false facts.”
Their presentation showcased many relevant articles and videos which have since been ‘lost’ or simply forgotten over the lifetime of the case, especially as relationships with certain major media partners soured. For example, this May 2011 piece in The Guardian, summarising a report by Amnesty International that credited the work of both them and WikiLeaks “as a catalyst in a series of uprisings against repressive regimes” known as the Arab Spring; or this 2018 blog post from the European Journal of International Law, which summarises the Chagos Islands case in which the U.K. Supreme Court “held unanimously that a Wikileaks document is admissible in a domestic court.”
They began with a clip from the speech that Mr. Assange gave at the Oslo Freedom Forum (OFF) in April 2010, as a way to show the foundational values and goals of WikiLeaks, and the problems they sought to address. “Censorship in the West is used to legitimize censorship in other countries,” Mr. Assange argued in that talk. More than thirteen years later, after little to no mention was made of Mr. Assange at the annual human rights event, OFF’s vice president of strategy Alex Gladstein dedicated the majority of his main-stage speech to showing support for the publisher’s plight. “He has been detained for his activism and has been the victim of an international smear campaign,” Mr. Gladstein stated. “When we, in liberal democracies, jail our own critics, this reduces our moral authority and it emboldens dictators to more relentlessly persecute their critics,” he warned.
This ‘emboldening’ was most clearly observed in the widely circulated video of Azerbaijani President Ilham Aliyev responding to BBC correspondent Orla Guerin’s questions about press freedom issues in the country during a November 2020 interview. “Can I ask you also one [question]? How do you assess what happened to Mr. Assange? Is it a reflection of free media in your country?” challenges President Aliyev. “Let’s talk about Assange. How many years did he spend in the Ecuadorian Embassy? And for what? And where is he now? For journalistic activity, you kept that person hostage, actually killing him morally and physically. You did it, not us, and now he is in prison. So you have no moral right to talk about ‘free media’ when you do these things.” To compound the embarassment, the BBC’s official video of the interview does not even include this portion of the conversation.
Azerbaijan is ranked 151st in the 2023 World Press Freedom Index compiled by Reporters Without Borders (RSF). Their online summary for the country avers that “President Ilham Aliyev has wiped out any semblance of pluralism, and since 2014, he has sought ruthlessly to silence any remaining critics.” Indeed, Azerbaijani journalist Arzu Geybulla spoke about the threats to independent and opposition media at the end of the same DNL panel with Mr. Luppichini, Dr. Bazzichelli, and Ukrainian associate professor Tetyana Lokot last Saturday. Many of them, Ms. Geybulla says, are “operating from exile” as a result. Journalists and editors who remain in the country are being targeted and arrested under “bogus charges” like smuggling. “Ahead of COP29, the government has really made its intention clear, that they want to silence anyone who can actually speak up their mind and who can report on the situation on the ground.”
Article 19 of the Universal Declaration of Human Rights includes the right “to seek, receive and impart information and ideas through any media and regardless of frontiers.” In contrast, the concept of networked authoritarianism, as Ms. Lokot explained, is not just about the (ab)use of technology by authoritarian states, but “also some not-authoritarian [states] who are very enthusiastic about using technology, very enthusiastic about controlling technology.. to exert control over citizens.” In light of the many risks to freedom-of-information around the world, those who care about counter-measures and solutions need spaces to network themselves with like-minds. The DNL invites a plurality of perspectives where participants can share their experiences in an open forum and anyone attending may engage in discussion.
They have two more conferences planned for this year. The latter, ‘Investigating the Kill Cloud’, is scheduled for Nov 29th to December 1st and “will be a big conference” as they officially celebrate the 10-year anniversary of the organisation’s founding, says Dr. Bazzichelli. The content of that conference will be focused around the work of research fellows at their institute “to investigate the future of war, autonomous weapons and A.I..” The DNL prides itself on ensuring inclusive and affordable entry for all, with generous support from a diversity of sources such as national and international foundations, local, state, and federal German government offices, and the European Union.
There are also efforts to engage the youth on the case of Mr. Assange. “On 29 April, next Monday, we will be holding an event in the cinema Kino Toni at 9 a.m. for the [students] and the staff of the Weissensee Waldorf School,” wrote Ms. Stutz in a follow-up statement. The event will host a screening of a German-language version of the 2017 documentary film ‘Der Fall Assange: Eine Chronik’ (English title: ‘Hacking Justice’), directed by Clara López and Juan Pancorbo, which follows former Spanish judge and lawyer Baltasar Garzón in his efforts to defend Mr. Assange. “We are in the process of writing an offer for schools in general, to motivate more schools to do something like this.” The same film will be screened again on May 15 at the Filmkunst 66 cinema at Bleibtreustr. 12 in Berlin.
‘Imagine what they did when we couldn’t see their crimes on our phones,’ we are encouraged to wonder. Yet even in our highly-connected modern societies, there is still much we don’t know, and those willing to act on what they see are still hampered from doing so, potentially for decades. Perversely, there are also a number of instances in which information that has been public for decades can still be officially designated as a state secret, subject to state secrets privilege that empowers agencies to punish those who speak about it. From the civilians who’ve been made victims of war, to the journalists and whistleblowers who expose it, and the lawyers trying to defend them all.