Sunday, August 01, 2010

Comment on: Researcher detained at U.S. border, questioned about Wikileaks

Comment on: Researcher detained at U.S. border, questioned about Wikileaks

The United States is in a state of war as declared by Congress. The Authorization on the Use of Force has the full legal effect, that has already been adjudicated. There are seven ways that someone can give aid and comfort to the enemy during wartime.
1. They can be enemy civilians engaged in commerce that strengthens the enemy war effort. They may be subject to a certain level of violence and their physical environs may be targeted subject to certain restraints. They are generally protected from genocide and abuse, especially after surrender.
2. They may be neutrals trading with the enemy and subject to interdiction by blockade and possible violence if they attempt to resist or evade. While in territory controlled by the enemy they have no greater or special protection than the local civilians do, less if they associate deliberately with the government or armed forces of the enemy. This applies to Journalists and NGO agents who sometimes think that they deserve a special status.
3. Clergy, medical staff and neutral diplomats are entitled to special protection, and there are guidelines on how they should identify themselves.
4. They can be Lawful Combatants serving in the armed forces of the enemy while wearing a distinct uniform or device and subject to regular military discipline. They are entitled to Geneva Convention protections.
5. They can be unlawful combatants or pirates who are considered the common enemy of humanity (hostis humani generis) and who are not subject to the protections of the Geneva Convention.
They can be enemy agents who infiltrate to commit destruction (sabotage or terrorism) or to steal secrets (espionage) or foment rebellion (subversion.)
7. They can be citizens or subjects of one country giving aid to those the country is at war with. They are traitors. In the United States the crime of treason is defined in the Constitution.

The wikileaks project was openly designed to aid the forces that the United States is at war with. Persons who assisted the war effort are named and can be expected to be killed, as can their families. Further cooperation will be difficult to obtain and that will cost American lives and ensure either defeat or a longer and more brutal war. Mr Assange is not a US citizen. He therefor may be liable to charges of accessory to murder, for the Afghans whose live will be forfeit, and espionage.

Assange could be seized either through the assistance of a friendly government or by agents of the US, such as the DEA or CIA, who may be authorized to deliver him to US jurisdiction. Any complaint about how he gets placed in US custody would be a diplomatic matter between the two countries but would not be a barrier to prosecuting him once he found himself under US control. If DEA agents seize a drug dealer in Mexico and bring him over the border without getting the Mexican governments permission the arrest is still good.

Mr Applebaum is I believe a US citizen. US citizens are free to disagree with government policy. If they provide material assistance to a foreign person or organization that engages in Espionage they could not only be charged with that crime but also the additional crime of treason. Mr Applebaum's bland assurance that he had nothing to do with anything classified not withstanding I would expect the government to inspect him so thoroughly that every scintilla of information he could posses about wikileaks and Mr Assange and information networks is laid bare. He should be considering the real possibility of spending decades without the ability to access any means of electronic communications. If he is found to be complicit in this conspiracy then he should be denied even the possibility of accessing a telephone, let alone a computer. He could communicate with his lawyers using pen and ink.

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