Cartoonist Kamal Sharaf shows Shaye locked up while US Ambassador to Yemen Gerald Feierstein looks on holding the keys. The text says: Freedom for the Journalist Abdulelah Haider Shaye

Yemeni journalist Abdul-Elah Haidar Shaye, imprisoned in Sana’a since August 2010, is set to be released “soon”, according to a new presidential order. But this is not the first time a Yemeni president has pledged to set him free.

Shaye, sentenced in January 2011 to five years in prison for allegedly being a “media man for al-Qaeda’, should have walked free a month later. Weeks after his sentence was handed down in the Special Criminal Court for Security Affairs, then-President Ali Abdullah Saleh issued a pardon for his release. But a day later Washington stepped in. In a phone call between Barack Obama and his Yemeni counterpart, the US president “expressed concern” over Shaye’s impending release. The presidential pardon was never carried out. Shaye has remained in the capital’s notorious Political Security prison ever since.

On Tuesday night the office of Saleh’s sucessor, President Hadi confirmed that “there is an order from the president to release him [Shaye] soon”, without elaborating on when this is likely to happen. Shaye’s family remain sceptical about the order that was given about a week ago. “We’ve heard nothing of the sort and it’s like the same as previous promises. So far this is the fourth time Hadi has made this promise,” said Shaye’s brother, Khaled.

During his trial — at which the journalist turned down legal representation as he refused acknowledge the legitimacy of the court — Shaye indicated the real reason behind his detention was his reporting on US strikes and specifically the deaths of civilians including 14 women and 21 children killed in a sea-launched cruise missile strike on the village of al-Majala in December 2009.  Despite the Yemeni government claiming they were responsible for destroying an “al-Qaeda training camp” Shaye blamed the killings on America after visiting the village in the province of Abyan and finding US made bomb remnants.

Seven months after the al-Majala bombing and following his criticism of both the Yemeni and US Governments, Shaye was abducted by Political Security Organisation [PSO] gunmen. Beaten and threatened before being released, in response Shaye went back on television. A month later, in August 2010, his house was raided by Yemen’s elite US-trained and funded Counter Terrorism troops. Shaye was once again beaten and tortured, according to the Yemeni human rights organisation HOOD, during 34 days in solitary confinement with no access to a lawyer or family members.

In an October 2010 court hearing, after more than two hours of the prosecution presenting its case, Shaye was allowed just a few minutes to respond. In those moments he suggested what he believes is the real motive behind his incarceration. “When they hid murderers of children and women in Abyan, when I revealed the locations…it was on that day they decided to arrest me,” he shouted from behind the bars of cell alongside the courtroom.

Leaked diplomatic cables released shortly after after the conclusion of his trial confirmed Sahye’s accusations that the US had indeed carried out the al-Majala bombing.

In an interview last year with the US Ambassador to Sana’a, Gerald Feierstein reiterated to me America’s interest in his case. “Haidar Shaye is in jail because he was facilitating al-Qaeda and its planning for attacks on Americans and therefore we have a very direct interest in his case and his imprisonment,” he said. No evidence has ever been produced by either the US or Yemeni Government to support the claim that Shaye was facilitating any such attacks.

Yemeni journalists have repeatedly expressed their lingering fear over America’s meddling in Shaye’s case. Many became afraid to report on air strikes. One Yemeni journalist, like Shaye a specialist on al-Qaeda, renamed himself an “analyst of Islamic groups” and refused to do TV interviews especially with Al Jazeera after what happened to Shaye.

Since Shaye’s imprisonment in 2010 the US resumed its drone strike programme in Yemen during 2011, following a year-long break. Last year the number of strikes reached an all-time high, surpassing the number carried in Pakistan for the first time, according to monitoring groups.

In February last year Shaye went on hunger strike, but was persuaded by his family to halt the protest at his continued detention when his health rapidly deteriorated.

Human rights and press freedom organisations have continued to demand his release. On World Press Freedom Day last week the International Federation of Journalists [IFJ] reiterated its call for an end to his incarceration in a letter to the Yemeni president. In a meeting with IFJ president Jim Boumelha last year Hadi had promised to do “everything in his power” to free Shaye.

It’s unclear if this most recent order will be carried out, or if Washington will once again seek to keep Shaye behind bars.

The US Embassy in Sana’a failed to respond to requests for comment on the presidential release order.

Iona Craig is a freelance journalist based in Sana’a, Yemen and The Times of London Yemen Correspondent. She also writes for USA Today, The Sunday Times and regularly contributes to The National (UAE) and Index on Censorship
ionacraig.tumblr.com

The post Will Obama keep Yemeni journalist in jail? appeared first on Index on Censorship.

The creation of this new law has not been an easy process. The Libel Reform Campaign launched on 9 December 2009, bringing together Index on Censorship, English PEN and Sense About Science. We had all identified a simple problem: English libel laws were silencing legitimate criticism and debate — not just in the UK but internationally. London’s High Court was seen as the place to come to silence opponents and critics, whether you were a South African snake-oil salesman or a Saudi sheikh.

Each organisation had already been alarmed by the use of libel laws in England and Wales to silence free speech.

The movement galvanised around the case of Simon Singh vs the British Chiropractic Association. This case, involving the popular science writer’s critique of what he now famously described as the “bogus” claims of alternative medicine, brought the UK’s energetic sceptic community into the fold. Over 100 civil society groups signed up. Novelists, journalists, lawyers and comics — especially comics — also joined. At the same time, English PEN and Index on Censorship had been working on a year-long study on the effects of English libel law on chilling free speech at home and across the globe. The Free Speech For Sale report kicked off a national debate on the impact of these archaic laws.

In March 2010, some of the biggest names in comedy, including Shappi Khorsandi, Tim Minchin and Dara Ó Briain gave their time to perform at the Big Libel Gig fundraiser in London.

An awful lot has happened since that benefit gig. Sheikh Khalid Bin Mahfouz, a serial libel tourist, has died. Mr Justice Eady, the High Court judge at the centre of some of the most contentious libel cases of recent times, has retired. Barack Obama signed the SPEECH Act, a US law specifically designed to protect Americans from London libel rulings. And the Chiropractics lost their case against Singh.

But what did not change was the remarkable loyal support of the thousands of libel reform supporters at home and abroad.

In advance of the 2010 UK election, tens of thousands of people wrote to their MPs telling them to support reform of the libel laws. As a result, all three main parties in the UK pledged to change the law.

When the Conservative-Liberal Democrat coalition government was formed by David Cameron and Nick Clegg after that election, a new defamation bill was one of the few issues both parties agreed on.

It would have been easy then for the 60,000 libel reform supporters to feel that their job had been done, and that now it could be left to the politicians.

But this never happened. Every time there was even a slightest threat to the process of reform, supporters mobilised, often without prompting.

The Libel Reform campaign can be seen, perhaps, as the first successful political campaign of the social media age. Bloggers and tweeters got involved and stayed involved. The #LibelReform hashtag was never dormant.

It was also a good example of parliamentary policy making. Though at times progress seemed slow, the bill went through rounds of scrutiny in an open and transparent manner, with politicians (for the most part!) working together for the common good.

The new law protects free speech. There is a hurdle to stop vexatious cases. We now have a bar on libel tourism so non-EU claimants will now need to prove that harm has been done here. For the first time there will be a statutory public interest defence that will ask defendants to prove they have acted “reasonably” (a better test than the more burdensome Reynold’s test of responsible publication). There is also a hurdle to stop corporations from suing unless they can prove financial harm.

The fight for free speech continues, but today Index would like to thank our partners and supporters for what has been an incredible three-and-a-half-year adventure.

Padraig Reidy is Senior Writer at Index on Censorship. @mePadraigReidy

The post Victory for free speech as libel bill passes appeared first on Index on Censorship.

Index’s Sara Yasin spoke to the candidate about free speech in America, and the challenges she’s faced as a third party candidate in the Presidential race

Index: What are the biggest barriers faced by alternative candidates in the Presidential race?

Jill Stein: Its almost as if third parties have been outlawed. There is not a specific law, but they have just made it incredibly difficult and complicated to get on the ballot, to be heard, it is as if [third parties] have been virtually outlawed.

To start with we don’t have ballot status, the big parties are “grandfathered” in. Other parties have to collect anywhere from ten to twenty to thirty to forty times as many signatures to get on the ballot. We spend 80 per cent of the campaign jumping through hoops in order to get on the ballot. It really makes it almost impossible to run.

It takes money in this country. You have to buy your way onto TV. The press will not cover third parties, challengers, alternatives. The press is consolidated into the hands of a few corporate media conglomerates, and they’re not interested and they also don’t have the time because their staff has been cut. So they’re basically, you know, covering the horse race. Not looking at new voices, new choices, the kinds of things that the American public is really clamouring for, and also not looking not the issues. And so you get this really dumbed down coverage that excludes third party candidates.

And then you have the debates, which are a mockery of democracy. Which are really sham debates held and organised by the Commission on the Presidential Debates, which is a private corporation led by Democratic and Republican parties. They sound like a public interest organisation; they’re not. They’re simply a front group to censor the debate. And to fool the American voter into thinking that is the only choice that Americans have. And in fact, by locking out third party candidates, we’ve effectively locked out voters.

According to a study in USA Today a couple weeks ago, roughly one out of every two eligible voters was predicted to be staying home in this election. That is an incredible indictment of the candidates.

Index: What are your thoughts on how multinational companies are using lobbying, lawsuits and advertisements to chill free speech around environmental issues?

This is certainly being challenged. Fossil fuels are an example. The fossil fuel industry has bought itself scientists — pseudo scientists I must say — and think tanks to churn out climate denial. That whole area of climate denial has been sufficiently disproven now, to the point where they don’t rear their ugly head anymore. Now there’s just climate silence, which Obama and Romney really share. Romney is not denying the reality of climate change, he’s just not acting on it. Unfortunately, Obama has seized that agenda as well in competing for money.

I think we are seeing enormous pushback against this, in the climate movement, in the healthy food movement, in the effort to pass the referendum in California (37) that would require the labeling of food which the GMO industry is deathly afraid of, because people are rightly skeptical. So for them, free speech, informed consumers, informed voters, are anthema, it’s deadly for them. They require the supression of democracy and the suppression of free speech. And the buying of the political parties is all about silencing voices like our campaign. which stands up on all of these issues.

There are huge social movements on the ground now for sustainable, healthy organic agriculture. For really concerted climate action, for green energy, for public transportation. These are thriving movements right now. Our campaign represents the political voice of those movements. There is also a strong movement now to amend the constitution to stop these abuses, to stop this suppression of free speech.

Index: Do you think that the two-party system allows for topics viewed as inconvenient to both Republicans and Democrats to remain untouched?

JS: That’s their agreement really. And the commission on presidential debates makes it so very clear. They have a written agreement that was leaked a couple of weeks ago. That agreement includes very carefully selected moderators who agree about what kinds of questions they will ask and they will go through…until they find the candidate for a moderator that will agree basically not to rock the boat. The moderators have to agree to not only exclude third parties, but not to participate in any other format with candidates whose issues can’t be controlled. This has everything to do with why they make the agreements that they do and why they will only talk to each other, because they’re both bought and paid for by the same industries responsible for the parties.

When I got arrested protesting the censorship of the debate, my running mate and I were both tightly handcuffed with these painful plastic restraints, and taken to a secret, dark site. Run by some combination of secret service, and police, and homeland security. Who knows who it really belongs to, but it was supposed to be top secret and no one was supposed to know and we were then handcuffed to metal chairs and sat there for almost eight hours. And there were sixteen cops watching the two of us, and we were in a facility decked out for 100 people to be arrested, but it was only the two of us and one other person brought in towards the end of the evening who was actually a Bradley Manning supporter who had been arrested just for taking photographs of someone who was photographing the protesters.

Index: What does freedom of expression mean to you?

JS: It means having a democracy, having a political system that actually allows the voices of everyday people to be heard. Not just, you know, the economic elite which has bought out our establishment political parties. So free expression, for me, is the life blood of a political system. I was not a political animal until rather late in life. I was shocked to learn we don’t have a political system based on free expression. We have a political system based on campaign contributions and the biggest spender, and they buy out the policies that they want, so to me, that is where free expression goes. And if we don’t have it we don’t have politics based on free expression —- it’s not just our health that is being thrown under the bus, it’s our economy, it is our climate, it is our environment. We don’t have a future if we don’t have free expression. If we don’t get our first amendment and free speech back, and that means liberating it from money.

Sara Yasin is an editorial assistant at Index on Censorship. She tweets at @missyasin

The post INDEX Q&A: It’s not easy being Green for US third party candidate appeared first on Index on Censorship.

Take Two: Film protests about much more than religion

The United States is the world’s undisputed king of culture. No country’s film industry can rival Hollywood; no nation’s musical artists sell more records worldwide than America’s. Boasting such a diverse, pulsating, frequently vulgar and often blasphemous entertainment industry, not everyone — including many Americans — is going to be pleased with what they see and hear coming out of the United States. Films ranging from Martin Scorcese’s The Last Temptation of Christ (which depicted the lustful fantasies of the Christian savior) to Mel Gibson’s The Passion of the Christ (which depicted Jesus’ crucifixion as essentially Jewish-orchestrated) have outraged Christians and Jews, respectively. The latest Broadway smash hit, The Book of Mormon, mercilessly ridicules the foundation myths of America’s newest and fastest-growing major faith.

In none of the controversies surrounding these productions, however, did the producers fear for their lives, nor did US government officials feel it incumbent upon themselves to apologise to the world’s Christians, Jews or Mormons for the renderings of artists. This straightforward policy of respecting the autonomy of the cultural sphere was amended earlier this week, however, when a branch of the United States government officially apologised to the world’s Muslims over a film for which the word “obscure” is too generous.

On 11 September, 12:11 PM Cairo time, the Embassy of the United States to Egypt released the following statement:

The Embassy of the United States in Cairo condemns the continuing efforts by misguided individuals to hurt the religious feelings of Muslims — as we condemn efforts to offend believers of all religions. Today, the 11th anniversary of the September 11, 2001 terrorist attacks on the United States, Americans are honoring our patriots and those who serve our nation as the fitting response to the enemies of democracy. Respect for religious beliefs is a cornerstone of American democracy. We firmly reject the actions by those who abuse the universal right of free speech to hurt the religious beliefs of others.

The “misguided individuals” in question were the producers of the now-infamous YouTube flick, The Innocence of Muslims, a crude, low-budget film which portrays the Prophet Muhammad in a none too pleasant light. Much about The Innocence of Muslims remains a mystery; its now-debunked origin story, that of an “Israeli Jew” filmmaker who “financed [it] with the help of more than 100 Jewish donors,” had all the makings of anti-Semitic disinformation campaign.

Several hours after this statement was released on the Embassy’s website, about 2000 Salafist protestors gathered outside the US Embassy, breached the compound’s walls, took down the American flag, and replaced it with the a black banner inscribed with the Islamic profession of faith: “There is no God but God and Muhammad is his prophet.” When, in the aftermath of this outrage, some American conservative bloggers began criticizing the Embassy’s statement as an apology for a specific exercise — however crude — of the constitutionally-protected right to free speech, the Cairo Embassy’s Twitter account defiantly released the following:

Shortly after 10:00 P.M. that evening, the campaign of Mitt Romney, Republican presidential nominee, released the following statement:

I’m outraged by the attacks on American diplomatic missions in Libya and Egypt and by the death of an American consulate worker in Benghazi. It’s disgraceful that the Obama Administration’s first response was not to condemn attacks on our diplomatic missions, but to sympathize with those who waged the attacks.

This riposte was embargoed until midnight, 11 September being a day that American politicians exempt from their usual partisan sniping. Yet, shortly after releasing the statement to the media, the Romney campaign lifted the embargo. Heightening the controversy was the revelation that Islamist militants had attacked the American consulate in Benghazi, Libya (it would not be confirmed until early next morning that the Ambassador, Chris Stevens, had been killed). Suddenly, an issue not normally considered American presidential campaign material — freedom of speech — had become a political football.

Since then, the liberal chattering classes, as well as ostensibly unbiased news reporters, have universally condemned Romney for “politicising” a national tragedy (just watch this press conference Wednesday morning in which reporter after reporter asks the Republican candidate, incredulously, how he could deign to stoop so low). The main line of attack against Romney is essentially a defense of the US Embassy’s original statement, which, in the words of Washington Post columnist Dana Milbank, “came out before the attacks, was issued by career diplomats in Cairo without clearance from Washington, and was disavowed by the White House.” This line was echoed in a New York Times news story, which reported that “The embassy’s statement was released in an effort to head off the violence, not after the attacks, as Mr. Romney’s statement implied.”

“But the fact is that the ‘apology’ to our ‘attackers’ was issued before the attack!” pronounced Michael Tomasky of The Daily Beast. Josh Marshall, proprietor of the popular Talking Points Memo blog, declared that the two-sentence statement from the Romney campaign was reason enough to disqualify the former Massachusetts Governor from the presidency. “Romney, or folks writing in his name at his campaign, claimed that the administration’s first response to the attacks was to issue a press release condemning the anti-Islam film which had helped trigger the attack,” Marshall wrote. “In fact, according to all available press reports and the account of the State Department, the press release in question came from the US Embassy in Egypt and preceded the attacks” (emphasis original).

The New York Times, America’s left-wing pundits, and the rest of those who have criticized the Romney campaign are missing the point, which is that it is no more  appropriate to apologise for the First Amendment before a raging mob attacks an American embassy than it is to apologise for the First Amendment after such an attack occurs. The embassy’s pre-emptive apology – and that’s exactly what it was – shows just how useless it is to apologise for the most basic principle of the Enlightenment. Someone who would ransack an embassy and kill American diplomats over a movie he saw on the internet is not likely to be persuaded by a mere statement assuaging his “hurt religious feelings.”

The Obama administration did indeed repudiate the Embassy’s statement – which has since been removed from its website – and some sources have anonymously claimed that the release was the work of a freelancing, public diplomacy officer who acted without express approval from Washington. This, the administration’s supporters claim, absolves the president of blame for a statement they nonetheless defend on its merits. Regardless, the buck stops with the President of the United States; if a US Embassy releases a statement, one must assume it is something the President stands behind. Revoking the statement while failing to discipline or fire the individual behind it sends mixed signals. Moreover, in remarks at the White House condemning the murder of Ambassador Stevens, the President appeared to reiterate the Cairo Embassy’s statement, announcing that “We reject all efforts to denigrate the religious beliefs of others,” in effect passing a value judgment on a certain instance of expression while failing to explicitly defend the principle of free expression itself.

Like the fury over the Muhammad cartoons in 2005 — which were published months before opportunistic imams whipped up an international (and deadly) controversy — clips from The Innocence of Muslims were put on YouTube in July this year. It was not until 9 September, however, that the Grand Mufti of Egypt declared that, “The attack on religious sanctities does not fall under this freedom,” the freedom in question being freedom of speech. Pointedly, the asinine US Embassy statement, while directly condemning shadowy American filmmakers, made no mention of the Egyptian Grand Mufti or other religious fanatics who had condemned the film and whipped people into such hysteria.

We are now treated to the strange spectacle of Western progressives aligning with Islamic religious reactionaries, both arguing that freedom of speech can go too far (of course, it is only speech that offends Muslims which comes under progressive suspicion; the same liberals who insist that the tender sensitivities of Muslims be respected have no problem with speech that maligns religious Christians and Jews). Those arguing that the YouTube clips that allegedly “incited” this mess should be banned – like the Guardian’s Andrew Brown – would do well to pause and consider the implications of what they are arguing. Does Brown think that Mitt Romney, a practicing Mormon, would be justified in demanding that the New York City authorities shut down The Book of Mormon? I am frequently outraged by what I read on the website of Brown’s newspaper (as one wag put it to me; “With Comment is Free, you get what you pay for”); would I be justified in expressing that anger through violence towards various and sundry Guardian writers?

Meanwhile, one can turn on the television or open a newspaper in any Muslim country and be sure to find grossly anti-Semitic material that is just as, if not more, offensive than anything contained in The Innocence of Muslims’ puerile script. Do American and British Jews then trek to the Libyan or Egyptian embassies in Washington and London, scale the fence, plant an Israeli flag on the roof, slaughter the ambassadors therein, and drag their remains through the street?

At least since the Rushdie affair, rioting and murdering over “insults” to religion has been a phenomenon almost exclusive to Muslims. It is strange, then, that those who insist the West must show more respect for Islamic civilization are precisely the same people who treat its adherents like children.

James Kirchick, a fellow with the Foundation for Defense of Democracies, is a contributing editor of The New Republic. He tweets at @jkirchick

Also read:

Kenan Malik on The Satanic Verses and free speech andWhy free expression is now seen as an enemy of liberty

Sara Yasin on France, Charlie Hebdo and the meaning of Mohammed

When we succumb to notions of religious offence, we stifle debate, writes Salil Tripathi

Sherry Jones on why UK distributors refused to handle her book The Jewel of Medina

The post Islam blasphemy riots now self-fulfilling prophecy appeared first on Index on Censorship.

First Amendment scholar Geoffrey R Stone wrote for Index back in 2008 that the American public’s right to know had been one of the greatest casualties of the Bush Administration. A previous colleague of Barack Obama at the University of Chicago Law School, Stone had high hopes that the new president would reverse many of his predecessor’s damaging policies. That has not exactly been the case. This week, Stone sat down with Index to assess Obama’s record on transparency, which, he concludes, may be the single most important — and fragile — civil liberties issue in the age of the War on Terror.

Index: When you wrote for Index at the end of the Bush Administration, the state of the public right’s to know had largely been damaged by government secrecy. At the time, what were you hoping would happen under the Obama Administration?

Stone: I was hopeful that when President Obama took office he would have a much more open sense of the importance of the actions of government being made transparent to the American people. Certainly, that was a theme in his campaign. So I think it was reasonable to expect major change in some of the Bush-era policies.

Index: In some cases, that has happened, particularly around changes Obama has made to Freedom of Information policy and classification standards.

Stone: Right. Most notably, the President has changed the standard for the classification of information. Under President George W Bush, the prior standard was expanded to allow greater classification, so that any material that, if disclosed might have harm to the national security, was to be classified. Under the Clinton Administration, and now under the Obama Administration, the standard was changed to say that classification was permissible only if the potential harm to the national security outweighs the value of the disclosure of the information to the public, which is a more appropriate way to strike the balance between the need of the public to know, and the need of the government to keep things confidential. So, in some respects, the Obama Administration has made significant progress. But in lots of other areas, I think it’s been disappointing.

Index: Can you walk through those areas?

Stone: One of those areas has to do with journalist-source privilege. Forty-nine states and the District of Columbia provide a privilege to journalists not to disclose the identities of confidential informants, either at all or unless the government could show a very substantial justification and need for the identities. The federal government does not have such a privilege. Obama was a supporter of the bills in Congress to create a federal privilege, but since taking office, he’s been much more skeptical about it and has essentially suggested it should not be adopted if the information would be potentially harmful to national security. As a consequence, nothing has happened, no legislation has been enacted, and that’s quite disappointing.

Another area where he’s been less transparent than people had hoped had to do with the issue of whistleblowers. Federal law does not give any clear protection to whistleblowers in the national security context, and yet there are certainly circumstances – for example, where a whistleblower reveals information about illegal government policies, or reveals information about highly wasteful or incompetent government action, or simply reveals information that’s of grave importance to the public — where there should be a clear privilege for whistleblowers to expose that information without risk of prosecution. Once again, the legislation simply has been stalled in Congress. The President has not made any effort to push it along, and indeed has prosecuted several people in circumstances that are problematic.

The third area where he’s been disappointing has been in State Secrets. The State Secrets doctrine has been around almost 60 years, and it means that the federal government can refuse to reveal information in litigation if the information may be harmful to national security, and indeed can simply close down the litigation if it feels it can’t adequately defend itself without revealing the information. If, for example, someone sues the government claiming that the National Security Agency’s surveillance program initiated under President Bush violates federal law, what the Bush Administration did was to essentially assert that that litigation could not go forward because the only way that we could defend the legality of our policy was by revealing information to the court that would, if revealed, harm national security. And the Bush Administration took the position that judges should simply defer to the assertion by the government that there would be this damage. At the very least, it was expected that the Obama Administration would take a much more reserved approach with respect to the use of the State Secrets doctrine and would approve legislation that would limit the application of the doctrine to situations where the judge himself is in a position to evaluate the degree of potential danger to the national security. But, nothing has happened on that, again. The Administration has not moved forward on it and has indeed continued to assert the State Secrets doctrine in situations not dissimilar to that of the Bush Administration.

Index: You’ve mentioned that there are several areas in which Obama’s actions in the White House have been very different from what he said he believed when he was a senator. Do you think that’s because all of these issues look different when you’re looking at them from the White House, or because as president he’s been influenced by people with different views within the security world?

Stone: There are a lot of factors that enter into play. One of them is the sense that, “well now my guys are in charge, so we’re going to behave, so we trust ourselves to do well, and the public should trust us to do well, even if you couldn’t trust George Bush to exercise good judgment on these matters.” So one part of this is that when you’re in a position of authority, you believe your motives are good, and therefore there’s no need for a check on your behaviour. That’s a natural phenomenon, it happens all the time, and I think it plays a role.

Part of it may be that you have a better appreciation of the complexities of the situation than you did before you were inside, and that with that greater appreciation, you in fact wisely changed your position, because you recognised it’s not as easy to do the things you thought should be done when you were outside the Administration.

A third factor is politics. Some of these [positions] would appear to be politically weak on national defence, and even though you believed it was the right thing to do, you might decide that to actually do them when you’re the president would cost you support. Your enemies would characterise you as being ineffectual when it comes to protecting the nation from external enemies. And therefore, you don’t want to expose yourself to that kind of attack, even though you still believe the right thing to do on the merits of the issue, as opposed to larger issue of electability, would be to change the law.

Fourth, there are relationships with other people in your Administration that you have to be cognisant of. You don’t want to alienate unnecessarily – even though you’re the boss – people in your administration, like members of the military or Defence Department by doing what you believe is the right thing and they believe is the wrong thing. You may believe you’re right but decide “I don’t really want to alienate all these people by overriding what they think is their better judgement on these matters.”

There are lots of reasons why these changes [in position] may take place, and some of them are better than others. But I suspect in varying degrees, all of them play a role.

Index: Particularly around the Thomas Drake case, there has been a lot made out of the fact that Obama has been a more aggressive pursuer of whistleblowers than any of his predecessors. Is it fair to characterise him that way, or is that more of a statistical anomaly given that he inherited many of these cases from the Bush Administration?

Stone: I think the latter. My guess is that Obama is not more aggressive; it’s just that he has more cases that are holdovers from situations that arose in the prior Administration. I have no reason to believe that he’s actually being more aggressive than the Bush Administration would have been in the same circumstances.

Index: Do you think that since the administration is actively pursuing the handful of whistleblower cases it has to essentially create a chilling effect on other would-be whistleblowers?

Stone: I think that’s exactly right. There’s no real need to punish these people –– they’re not going to be in the position again to be whistleblowers. If nothing else, they’ve been fired, and never again given a security clearance. So, the punishment of them, and the pursuit of them, is clearly designed to deter others in the future from following their example. You don’t want to be prosecuted and investigated and have your life exposed in the press, and that’s going to make people who are tempted to be whistleblowers to think twice, and three times, before they actually act on it. I think the purpose here is much less the prevention of harm by these people in the future, it’s really about sending a message to other government employees not to do this.

Index: You’ve written a lot about how in past wartimes, the US has made some bad decisions restricting civil liberties – but that we’ve always snapped out of it and later restored rights that were taken away during wartime. The War on Terror seems like a different situation, in that it may not have an obvious end. Given the pattern throughout US history, should we be concerned now that we may be giving up some rights, and it won’t be clear when the time has come that we can have them back again?

Stone: I’ve always been skeptical of the notion of it being a “war without end.” When you were in the middle of World War II, or the middle of the Civil War, you didn’t know when it was going to end. You only knew when it was going to end after it was over. It’s true this is not a conventional war where you can defeat the enemy in as neat a way as you could by capturing the Confederate Army, but I suspect this war will end. And I think the rhetoric of that is blown too much out of proportion on both sides – among those who say “we can’t mess around here because it’ll be a life-and-death struggle as far as the eye can see,” and those who say that “there won’t be an end to this, so we have to be especially wary.” I’m much more closely aligned with the latter. If you believe it’s an unlimited war, or at least a long war, then the message you should take from that is not that we should pull out all the stops –– do whatever you can to win this war, civil liberties be damned –– but that we should be especially cautious.

If you ask, “What are the freedoms that we’ve given up as a consequence of 9/11 thus far?” it’s actually not that easy to identify specific things that are egregious. It’s not like the Civil War, where there was a suspension of habeas corpus throughout most of the United States. Or World War I, where there were prosecutions of anyone who criticised the war or the draft. Or World War II, where we had the Japanese internment.

The issues that are most threatening are the questions of transparency. Because the government can’t any longer suppress dissent, it has an even greater political need to prevent the public from knowing things. Whereas you could once control public discourse by making it a crime to criticise the government, you can’t do that any more, which means you’ve got to really do what you can to prevent people from criticising the government. That’s the instability that’s created here that’s most troublesome.

Guantanamo is a serious concern, and the temptations we fell into –– both with respect to torture and with respect to detention even of American citizens – were very dangerous. But those practices were abandoned pretty quickly. I think it’s the transparency issue that’s the most important, and potentially the most damaging.

The post Assessing Obama’s record on transparency appeared first on Index on Censorship.

The post Bahrain: Daughter of activist goes on hunger strike appeared first on Index on Censorship.

Shaye was sentenced last month to five years in prison for being the “media man” for Al-Qaeda. The 34 year-old journalist was found guilty of “participating in an armed gang, having links with Al-Qaeda and for taking photographs of Yemen security bases and foreign embassies to be targeted by the terrorist organisation.”

In the wake of uprisings in Tunisia and Egypt, President Saleh made a string of concessions and welfare reforms to quell mounting opposition and calls for him to resign. Shaye’s presidential pardon, announced last Tuesday, was in keeping with recent compromises. But in a phone call with his US counterpart on 2 February, in which Obama congratulated Saleh for his recent political reforms, the US president also expressed his “concern” over the intended release of Shaye.

Taken from his house in the middle of the night in August last year and held for 34 days without access to a lawyer or his family, Shaye’s trial began last October. The journalist made his name after interviewing radical cleric Anwar Al-Awlaki. Shaye was also the first journalist to claim the US was behind bombings in the southern province of Abyan in December 2009, which killed 55 people including 21 children as well as 14 alleged Al-Qaeda members. Shaye’s claims were confirmed in a leaked diplomatic cable released on 3 December. The leaked document recorded a meeting between President Saleh and the then head of US central command, General David Petraeus, during which they discussed the aftermath of the December bombings. Saleh told Petraeus “We’ll continue saying the bombs are ours, not yours.”

Shaye’s lawyers, who did not represent him in court on the grounds that the journalist refused to recognise the legitimacy of his trial, say the charges against him were fabricated as a result of his reporting on Al-Qaeda and his accusations against the Yemeni and US governments.

Khaled Al-Anesi, a lawyer from human rights organisation HOOD, told the Yemen Times on Sunday that there were suspicions that the US wanted him jailed.

“This American interference insures that Yemen’s dealing with terrorism is run by the US,” said Al-Anesi. “If they wanted to release him they would have released him immediately straight after the pardon was announced. This is a sign that they don’t want to set him free.”

Shaye’s continued detention at the request of Barack Obama would not be the first time Yemeni prisoners have been detained at the behest of the US. Recently leaked diplomatic cables revealed that 28 Yemenis were held, ‘based on USG [US government] objections” despite Saleh agreeing to release them in a Ramadan amnesty in 2004.

The post Obama intervention puts Yemen reporter in jail appeared first on Index on Censorship.

Not that removing Wikileaks would prove straightforward: though the main site has had to move its servers after Amazon withdrew hosting, and change its web address after EveryDNS cancelled Wikileaks’ account, it is still up and running.

Even on Wednesday, the day the site was most disrupted, Cablegate received 54m hits, from at least 3.6m unique individuals. Duplicate copies of Wikileaks are now loaded hundreds of different servers worldwide. Even PayPal’s closure of Wikileaks’ account has so far proved little more than an annoyance.

But even these could all vanish tomorrow, thanks to an even more traditional fallback: old media. The New York Times, Guardian, Der Spiegel, Le Monde and El Pais are all running Wikileaks material.

All shared the same editorial judgement as Wikileaks having seen the material: they judged it in the public interest and chose to run it. At this point, these sites are running the same cables as Wikileaks. They have contributed to the redactions.

The Guardian website, at the time of writing, actually contains more US material than Wikileaks’ own. None have faced the political or technical backlash of the main Wikileaks site, yet all would have to be taken offline to bury the Embassy Cables story.

Yet the ineffectiveness of the censorship efforts from the US Government, Senator Joe Lieberman and others does not detract from their troubling nature.

In a sense, attempts by Lieberman and the French government to prevent web hosts providing servers to Wikileaks are the least problematic issue — in the print press era, printers and distributors were regularly targeted with lawsuits when governments or private individuals sought to prevent stories getting out.

Targeting web hosts is merely the modern take on an old trick; and one which doesn’t seem to work nearly so well in the web era. Controversial publications which lack Wikileaks’ audience and resilience, on the other hand, may be anxiously watching current developments.

What is newer — and disturbing — is attempts by governments to prevent millions of their citizens from reading this material. America’s 19m federal government employees have been told not to read the cables material — or any publication containing them. Agencies have added virtually every mainstream news outlet to web filters and blocks, a move reminiscent of China’s Great Firewall.

Students at Columbia University have been advised not to comment on the cables if they might want a government job. And a US data visualisation company, Tableau, has even retracted derivative works based on the Wikileaks stories, without receiving a single specific request to do so.

The US government’s efforts to stop this story show both a distressing lack of commitment to the core internet principles of transparency and neutrality, and also a fundamental lack of understanding of its infrastructure.

Recent events should not disturb only journalists or campaigners – based on their recent public comments, it should prove a cause for concern for a pair of prominent Americans, too.

The first strident voice, speaking at a town hall meeting in China said:

“The more freely information flows, the stronger the society becomes, because then citizens of countries around the world can hold their own governments accountable. They can begin to think for themselves.

He concluded,

“I can tell you that in the United States, the fact that we have free internet — or unrestricted internet access is a source of strength, and I think should be encouraged,”

A second speaker called, in January this yea said:

“Censorship should not be in any way accepted by any company from anywhere. And in America, American companies need to make a principled stand…This needs to be part of our national brand. I’m confident that consumers worldwide will reward companies that follow those principles”

The identities of these two radical firebrands? None other than President Barack Obama, and Secretary of State Hilary Clinton.

I couldn’t agree with them more.

James Ball is an investigative journalist currently working with Wikileaks

READ MORE ON WIKILEAKS

Jillian C York: Wikileaks and the hazards of “intermediary censorship”
Plus Wikileaks and State Department correspondence

The post Wikileaks: The internet ideal triumphs appeared first on Index on Censorship.

The Act, tabled by Tennessee Congressman Steve Cohen, makes libel judgments against American writers in foreign territories unenforceable if they are perceived to counter the First Amendment right to free speech. The Libel Reform Campaign has expressed concern that our reputation is being damaged internationally due to our restrictive, archaic and costly libel laws which cost 140 times the European equivalent.

The SPEECH Act is inspired by the Libel Terrorism Protection Act passed by the New York State Assembly in February 2008, after American academic Dr Rachel Ehrenfeld was sued by a wealthy Arab businessman Sheikh Khalid bin Mahfouz in the High Court in London. Only 23 copies of Ehrenfeld’s book Funding Evil were sold in Britain whereas the vast majority of copies were distributed in the US. Mahfouz had little prospect of successfully suing Ehrenfeld in the US Courts as a result of First Amendment protection, so sued in the High Court in London, where free speech is less protected.

The Bill was passed by voice vote in the US Congress on 27 July 2010, at the time Tennessee Congressman Steve Cohen said:

“Libel tourism is the name given to the practice of doing an end run around the first amendment by suing American authors and publishers for defamation in the courts of certain foreign countries with defamation laws that don’t accord the same respect to free speech values as we do. Britain is a nation that particularly is assiduous for these actions… The United Kingdom has become the favoured destination for libel tourists.”

The coalition government has said it will table a draft Bill to reform our libel laws in January 2011 after the campaign led by English PEN, Index on Censorship and Sense About Science. The campaign has 52,000 signatories to its petition and all three main political parties committed in their general election manifestos to libel reform.

Jo Glanville, Editor of Index on Censorship said:

“The US’s response to our libel laws has already played a key role in advancing the campaign for reform in the UK. I’m hopeful that the government’s draft bill will address the issue of libel tourism, which has a clear chilling effect on freedom of speech, and make it harder for claimants from outside the EU to bully publishers, NGOs, bloggers and investigative journalists into silence.”

Síle Lane, Public Liaison of Sense About Science said:

“As other countries move to protect their citizens from the chilling effect of our libel laws we urge bloggers, science writers, NGOs and small publications facing threats and bankruptcy to keep up the pressure on the Government to ensure that the proposed draft libel bill brings the meaningful change that is so urgently needed.”

Jonathan Heawood, the Director of English PEN said:

“It’s hugely embarrassing that other countries are passing laws to protect their citizens from libel actions in our High Court. English libel lawyers claim that libel tourism is not a problem, if this is the case why has President Obama just signed into law a measure to protect his citizens from our Courts?”

Mark Stephens, a leading media lawyer and Index on Censorship trustee said:

“This marks a new low in Anglo-American jurisprudence and is the first time since Boston Tea Party that English judgments will not be enforced in America. All other non-defamation judgments will continue to be enforced thus marking out English libel laws as aberrant.”

The post Obama acts to defend US from UK libel laws appeared first on Index on Censorship.

On day one, Obama issued a transparency and open government directive that required each executive agency to open itself up to public scrutiny and to ensure public participation in policy-making. He also abolished a Bush administration rule that had severely restricted public access to presidential records. Most significantly, Obama issued a directive that strengthened the public”s ability to demand the release of government records through the Freedom of Information Act (FOIA), the law that mandates public access to official documents. Bush-era FOIA policy operated with a presumption of secrecy; whenever the law permitted suppression of records, agencies were not to disclose them. Obama swiftly reversed that presumption. Stating that “a democracy requires accountability, and accountability requires transparency”, and invoking the late Supreme Court Justice Louis Brandeis”s words that “sunlight is said to be the best of disinfectants”, Obama directed agencies, when in doubt, to release records; a presumption of openness, not secrecy, would prevail.

Obama”s soaring rhetoric, coupled with the symbolic significance of his bold actions on his first day in office, signalled a sharp break from the Bush administration”s regime of excessive, manipulative and abusive use of secrecy. Advocates of open government were overjoyed.

Barely two weeks later, however, these same advocates were dismayed when a justice department lawyer stood before a panel of appeals court judges and argued that a case brought by the American Civil Liberties Union (ACLU) on behalf of five men who were kidnapped, disappeared to CIA black sites and tortured, should be kicked out of court on secrecy grounds. Obama”s adoption of the Bush administration”s argument that the “very subject matter” of the case (Mohamed v Jeppesen Dataplan, Inc) was a “state secret” – and therefore too secret to be scrutinised even by a US court – was shocking. Obama had trumpeted transparency, banned torture and ordered CIA prisons to be closed, yet his lawyers were continuing to wield secrecy as a weapon to immunise officials and their corporate enablers against accusations of human rights abuses. Even the judges seemed taken aback, repeatedly probing whether the government lawyer was truly representing the position of the new administration.

Unfortunately, this inconsistency of approach from the Obama administration was a harbinger of things to come. Bouncing wildly back and forth on the transparency/secrecy continuum has come to mark the early stage of his presidency.

On the transparency side of the spectrum, President Obama has done a number of things that deserve praise. For example, in response to an ACLU lawsuit seeking the release of records about the abuse of prisoners in US custody, Obama released four of the infamous Bush-era “torture memos” in April. These memos — which purported to declare “legal” barbaric acts such as placing prisoners in boxes with insects, putting them in special harnesses designed to repeatedly slam them into walls or suffocating them through simulated drowning – were not honest analyses of the law, but rather political documents designed to “authorise” war crimes and shield interrogators and officials from future prosecution. Unsurprisingly, the Bush administration had fought vigorously against their release for years and President Obama disclosed them over vociferous CIA objections. He has also released a damning 2004 report from the CIA inspector general and a dozen other documents that describe in great detail the brutal interrogation techniques the US employed on prisoners, including waterboarding, mock executions, forced nudity, wall-slamming, extended sleep deprivation, dietary manipulation and stress positions. And Obama deserves credit for his landmark commitment to release White House visitor logs: no US president in modern history has ever voluntarily disclosed these records, even though they are key to the public”s understanding of who is influencing government policy.

But despite these achievements, when presented with a choice between disclosure and secrecy, Obama has chosen secrecy with disturbing frequency. The Obama administration continues to fight the release of key documentary evidence of torture. Perhaps most notoriously, Obama reneged on his promise to release photographs that depict the abuse of prisoners in US custody. In response to an ACLU lawsuit, two courts have ruled that the government must release these photographs and, early on, Obama agreed to disclose them. Indeed, in describing why the government would not appeal to the US Supreme Court, Obama”s press secretary explained that the case was “unwinnable”. Nonetheless, Obama changed his mind and asked the Supreme Court to block their release. (Since then, the US Congress has passed a law giving the secretary of defense brand new authority to refuse to release certain images involving the military. In November, Secretary Gates invoked this new authority to block release of all of the abuse photographs at issue in the ACLU lawsuit. The Supreme Court recently sent the case back to the appeals court to evaluate Secretary Gates”s actions under the new law).

But it is not only photographs that Obama continues to suppress. His CIA director is fighting the release of documents concerning the CIA”s destruction of 92 videotapes that depicted harsh interrogations. Similarly, the CIA continues to suppress prisoners” first-hand accounts of the torture they endured, fighting an ACLU lawsuit that seeks the release of uncensored transcripts of Guantanamo proceedings in which prisoners described the abuse they suffered. The Obama administration also continues to withhold a Bush-era presidential directive authorising CIA secret prisons.

The rationales invoked to justify this continued secrecy are just as disturbing as the secrecy itself. Despite the volumes of torture programme material that have now been released, the CIA continues to assert that disclosure of written records that describe the content of the destroyed videotapes, as well as the release of prisoners” first-hand accounts of torture, will harm national security. The government argues that the torture records that are already public are “general” or “abstract” descriptions of interrogation techniques, whereas the documents it continues to suppress are “specific” and reveal information about the “application” of torture techniques. This rationale is, at best, vacuous and, at worst, blatantly false. It ignores that the government has already officially released detailed and graphic descriptions of the interrogation techniques applied to specific prisoners.

The other rationale for secrecy is even more troubling. The government asserts that disclosure of these documents, as well as the torture photographs, would aid enemy “propaganda” and inflame anger against the United States. This argument turns the idea of government transparency on its head: it would grant the greatest protection from disclosure to records that depict the worst government misconduct. As the first judge to rule that the torture photographs must be released concluded:

“My task is not to defer to our worst fears, but to interpret and apply the law, in this case the Freedom of Information Act, which advances values important to our society, transparency and accountability in government. There is a risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlistments and violent acts. But the education and debate that such publicity will foster will strengthen our purpose and, by enabling such deficiencies as may be perceived to be debated and corrected, show our strength as a vibrant and functioning democracy to be emulated.”

With respect to the torture photos, President Obama rationalised his decision by explaining that the images would, in his view, not add that much to the public debate. This argument is antithetical to our democracy: citizens have a right to be informed about all government actions, and the president does not get to decide when they have learned enough.

President Obama”s record with respect to public disclosures about the Bush administration”s illegal surveillance practices is even more dismal. To this day, not one of the primary memos that supplied the “legal” basis for the Bush administration”s warrantless wiretapping programme has seen the light of day, and the Obama administration continues to fight against their release in court. Disclosures of the memos would reveal the shoddy legal reasoning that led to the specious conclusion that the president could authorise wiretapping of Americans without a warrant, in violation of a federal statute that expressly prohibited the practice. The public remains in the dark about who was monitored under this illegal programme; how illegally obtained communications were used; or whether any of these surveillance practices continue in some form.

The Obama administration has also now fully embraced its predecessor”s expansive and abusive use of secrecy (particularly something called the state secrets privilege) to prevent justice and accountability in the courts for victims of torture and illegal surveillance. Obama continues to press for dismissal of the ACLU”s extraordinary rendition and torture lawsuit on secrecy grounds, even though torture methods are now public; the CIA detention and torture programme has not only been acknowledged, but shut down; and the extraordinary rendition programme is well-known throughout the world. Because of the abusive use of this secrecy privilege, not one torture victim has had their day in a US court. Cases challenging illegal surveillance have not fared better; not only has Obama continued to defend the Bush administration”s farcical claim that a case where the victims already know they have been wiretapped illegally should be shut down on secrecy grounds, his justice department has made its own “state secrets” claim to block a new surveillance lawsuit. These are surprising actions from a man who ran on a campaign platform to reform abusive use of the state secrets privilege.

It would be easy to explain Obama”s inconsistent actions on these issues as those of a new president flailing about and trying to find his footing. I would argue, however, that there is a purposeful thread of consistency here. Transparency and accountability, as Obama well knows, are inextricably linked. Disclosures, thus far, have been calibrated to accommodate the tension between Obama”s sincere desire for “forwardlooking” openness and his openly acknowledged desire to avoid a “backwards-looking” examination of the Bush administration”s actions. Where disclosure would promote the view that his administration, as opposed to the prior one, is acting openly, legally and wisely, Obama has erred on the side of disclosure. Where disclosure and openness would effectively fan the flames for holding Bush administration officials accountable for illegal activity (or lead to accountability in the civil courts), Obama has erred on the side of secrecy.

Obama”s rhetoric supports this theory. He has repeatedly disclaimed any real desire for a full accounting of the Bush years and has, in effect, exhorted the nation to stop dwelling in the past. In a national security speech on 21 May, in discussing the balance between transparency and security, Obama acknowledged that revelation of past illegal acts “leads to a thirst for accountability” but said “we need to focus on the future” and urged against “an extended relitigation of the past eight years”.

The torture records Obama continues to suppress could be particularly provocative and almost certain to incite calls for full accountability. Images of the inhuman interrogation methods inflicted on prisoners can provoke disgust and induce collective shame in a way that words simply cannot. Tales of abuse from the lips of torture victims themselves humanise the debate. Similarly, descriptions of actual interrogations make grievous misconduct less abstract.

While Obama has (perhaps begrudgingly) released some Bush-era torture documents, even these disclosures have been married to actions designed to dispel calls for accountability. Obama”s release of the torture memos was accompanied by an announcement that interrogators who relied in good faith on the memos “would not be subject to prosecution”. He also stated that “nothing will be gained by spending our time and energy laying blame for the past”, and called for a time of “reflection”, not “retribution”. In other words, Obama released inflammatory material but made sure to tamp down calls for accountability. But when calls for accountability did not subside, Obama released the inspector general”s report, alongside an announcement of the appointment of a special prosecutor with an exceedingly narrow investigatory mandate. Again, the inflammatory release was coupled with an offensive announcement to extinguish any public thirst for investigation of high-level officials who crafted the torture programme.

Seeing images, hearing victims” voices and learning the full truth about how, when, and why brutal torture techniques were used is key to reckoning with this dirty portion of American history. And reckon with the past we must. Without a full accounting of the real scope of the Bush administration”s criminality, America cannot truly learn from its mistakes and turn the page. Moreover, if we remain in the dark about controversial aspects of Bush-era policy, Americans will not be able to make an informed judgment as to whether the new administration is changing course.

President Obama cannot force the nation to adopt his “look forward, not back” mantra where Americans want, need, and have a right to fully understand what was done in their name. He cannot continue to suppress information in order to dodge the call to hold the architects of the torture programme to account. As Obama himself pronounced, a democracy requires accountability, and accountability requires transparency. We cannot restore the rule of law and the credibility of the American justice system by ignoring the past eight years, suppressing the truth, or by preemptively letting crimes committed by high-level Bush administration officials slide. Enforcing the laws that ban torture is the only way that we ensure these shameful mistakes do not happen again.

Obama”s record on transparency is, of course, a work in progress. There is no question that the new administration is committed, in theory, to real openness. There is also no doubt that the Obama administration has already proven more transparent than the last. But that is a tremendously low bar. A president who has pledged to run a government with unprecedented transparency must shoot a bit higher.

For example, his administration, thus far, refuses to disclose key information about its detention practices at the notorious Bagram prison in Afghanistan, where hundreds of people have been held indefinitely in harsh conditions, without access to lawyers, courts or a meaningful process to challenge their detention. The Obama administration should release basic facts about the facility, including who is imprisoned there, how long they have been detained and the circumstances of their capture. Finally,
President Obama must release the still secret torture records and let victims of torture and surveillance abuses have their day in court.

Inspiring rhetoric is important but it goes only so far. True openness and accountability require the consistent, timely and meaningful release of information about the government”s activities, past, present, and future.

The post Keeping it secret appeared first on Index on Censorship.