Are Troops Talking to Assange ‘Communicating With the Enemy’?

[AntiFascist]

Source: ABC News

A military document obtained under the Freedom of Information Act identifies Wikileaks founder Julian Assange as an “enemy” — but the Pentagon insists that was not intended as a legal designation of him per se.

Air Force counter-intelligence documents obtained by the Sydney Morning Herald suggest that military personnel who contact Wikileaks could be charged with “communicating with the enemy.”

But George Little, a spokesman for the Pentagon, tells ABC News that the “Department of Defense does not regard Mr. Assange as a member of the ‘enemy,’ a military objective, or someone who should be dealt with by the US military.”

Little says the Pentagon “has warned Mr. Assange and Wikileaks against soliciting service members to break the law by providing classified information to them, and that it is our view that continued possession by Wikileaks of classified information belonging to the United States government represents a continuing violation of law. We regard this as a law enforcement matter.”


Read more: http://abcnews.go.com/blogs/politics/2012/09/are-troops-talking-to-assange-communicating-with-the-enemy/

---

So Assange is not considered an enemy target that the military needs to deal with, but communicating wth him is still considered 'communicating with the enemy'.

[KoKo]

1. K&R

[Pharaoh]

2. No

They are talking to a fucking reporter.

Someone who actually reports the news and pertinent information that an actual free democracy needs in order to function.

[hack89]

3. As long as they do not pass classified info they should be able to talk to wikileaks. nt

[AntiFascist]

4. That's not clear at all...

"communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly"

Although Wikileaks is not considered the enemy "per se", communicating with them may still be considered communicating indirectly with the enemy. The document in question still referred to "the enemy" whether Wikileaks is legally designated as such or not.

[hack89]

5. I was just voicing my personal opinion

there is nothing inherently wrong with Wikileaks - transparency is a good thing. But they should not be trying to get service members to pass them classified information - because while Wikileaks may not be breaking the law, it is definitely a crime on the part of the service member. As Bradley Manning is finding out the hard way.

[cstanleytech]

7. And the irony is Manning would have been fine legally if he had just reported the classified stuff

to congress or to the Inspector General rather than providing it to wikileaks.

[AntiFascist]

10. Wikileaks is considered to be breaking the law...

according to the Pentagon:

continued possession by Wikileaks of classified information belonging to the United States government represents a continuing violation of law. We regard this as a law enforcement matter.”

that's one reason why Assange could still face prosecution by the US, and why he could still face extradition to the US.

[robinlynne]

13. That is what it says. clearly.

[Pharaoh]

35. Classified information today

under the guise of " National security" is information that is either embarrassing to the US or downright illegal. That is the whole point.

Cheney exposing a CIA operative, now that would be called a treasonous crime. Get your facts straight hack89

[hack89]

36. I only care about that service member getting into big trouble

because they are persuaded to break the law by Wikileaks. That is all.

[freshwest]

6. Weird as it seems, it appears that people in the military are not allowed..

To talk to anyone about anything classified, not while in the service or afterwards, as we see with the book by the former Navy Seal. They may sign a non-disclosure agreement as corporations and agencies require and anyone outside of the chain of command is off-limits. That would include giving journalists or reporters classified material seems to fit within that logic. I'm sure a military person knows the reasons and regs better.

IMHO, the term 'classified' has been abused by those who are trying to hide things the public needs to know, or so we imagine. None of this covers the fact that so much work and data has been contracted out in the defense department, that various information that would be called classified, has fallen into private hands. It may now be titled proprietary information, AFAIK. The genie may be out of the bottle, now.

[cstanleytech]

8. Oh I agree there should be a major review over whats classified, why and for how long.

Take the helicopter incident for example. Why did they classify videotape of an incident we already knew took place? Its not like its hiding that it happened.

[freshwest]

9. The only righteous reason, I guess, would be an innocent person's identity would be revealed and...

It could cost them their life. This is the reason they are so tight about sharing information or at least that is the one commonly given. It makes sense if it is true. It's a matter of what one believes about the people saying yes or no to sharing info. The problem for civilians, which would include all reporters, is they are not on the 'need to know' list, and neither are we. This sxclusion creates a wall between those who are 'in the know' and those who are denied access. A lot of the passion on this issue is due to this, or at least I think so. In the same regard we want our private information protected, those who are closest to these things demand protection. The things we have seen coming out of battlezones have naturally been horrifying to civilians. We do need whistleblowers, but privatizing a great deal of the military and the public sector has destroyed that concept, at least in my opinion. In such cases, the actors are looking out for their own best interests and not the public as we have thought about it in the past. It's frightening.

[cstanleytech]

17. I dont think that I buy that atleast as far as the helicopter incident, after all it didnt show the

faces of the pilots did it?

[freshwest]

27. There would be other identifiers other than faces. I'm not there, so the fear is not mine.

[robinlynne]

14. Was that seal who wrote the book arrested?

[freshwest]

31. I don't think so, but I'm not up to date on it. There were threats of some punishment.

Whether it was civil or military, I don't know as I didn't see it as all that interesting. More talk show pundit fodder for the most part. We haven't had any of the military folks chime in, past or present. They'd know what the military says. It's a good deal different than what civilians expect, I do know that from people in my family in the service and a few threads. Read this link:

http://www.wina.com/Navy-SEAL-book-contains-classified-information-Pen/11458736?newsId=164040

Since this thread seems to be about Assange, he is not an employee nor has he sworn any oaths. Bradley Manning is in big trouble because he did when he joined up, and likely promised to keep whatever he learned within channels. No matter how excited or enlightened we may be by what are said to be his leaks, he would not have been in the 'need to know' group without saying he'd keep an agreement.

And understand, I'm just speaking of what seems logical to me. This may be the cause of the fury of the military in this case, he broke their code. I don't diss those that live by a code for the greater good but it has been misused. We don't want to see Abu Graib prison case given a pass because of a code that hides crimes.

It happens in civilian life with corporations, too. Nothing is ever as clear and simple as we may want it to be. For me, a good deal of this is about the heart. The soldiers who abused and killed people have now come home and it is a bit scary that they are walking free, AFAIK.

I don't think Manning meant to hurt anyone and feel he was used by Wikileaks to make their mark on the world stage. He is all alone, paying the price now. Whether there was any money made from that, as reporters make from telling the stories of the lives of others, and at times ruining their lives, I don't know. The person really feel for is Manning. The legal and political points scored don't mean much to me.

[msongs]

11. assange is not the one ordering the murder of civilians using drones nt

[robinlynne]

15. +1.

[Vidar]

32. +1

[George II]

12. Why try to CREATE controversy?

From the article, a direct quote from a Pentagon spokesman:

But George Little, a spokesman for the Pentagon, tells ABC News that the “Department of Defense does not regard Mr. Assange as a member of the ‘enemy,’ a military objective, or someone who should be dealt with by the US military.”

To answer your subject line, as confirmed by the US Military, NO

[robinlynne]

16. going on to say: He should be arrested by Eric Holder. We arrest any military who speak with them.

[George II]

19. No.....

First, Holder isn't even mentioned in the article.
Second, only military personnel who are solicited to break the law and they comply with him will be arrested.

Sure is a circuitous route to get to your conclusion.

[AntiFascist]

20. Holder is the AG...

and has made statements previously about building a case against Assange.

The Pentagon spokesman does state:

continued possession by Wikileaks of classified information belonging to the United States government represents a continuing violation of law. We regard this as a law enforcement matter.”

[George II]

22. Holder is the AG...and has made statements previously about building a case against Assange.

That too is purely speculative and has never been documented.

This is starting to sound like a George Costanza bit:

[AntiFascist]

34. Never been documented? Seriously?

Maybe you need to read more:

http://www.guardian.co.uk/world/2010/dec/06/wikileaks-cables-founder-julian-assange

Asked if he might mount a prosecution under the Espionage Act, Holder said: "That is certainly something that might play a role, but there are other statutes, other tools at our disposal." Holder added that he had given the go-ahead for a number of unspecified actions as part of a criminal investigation into WikiLeaks. "I personally authorised a number of things last week and that's an indication of the seriousness with which we take this matter and the highest level of involvement at the department of justice," he said.

and don't make me get all George Costanza on you!

[robinlynne]

23. exactly. in other words, what the poster is saying is NOT true. They call him a criminal, and anyone

from the military speaking with him is subject to military arrest for speaking with the enemy.
Do you need more enemy than that?

They did not send navy seals out to hunt him. That is true.

[George II]

29. Being called a criminal is different than being called the enemy.

He was NEVER called "the enemy". BIG difference!

John Gotti was a criminal but was never called an "enemy of the state".

[AntiFascist]

18. The subject line is the title of the article...

which implies that it is still an open question.

Please read the first line of the article:

A military document obtained under the Freedom of Information Act identifies Wikileaks founder Julian Assange as an “enemy”

The Pentagon spokesman has to backpedal because most people wouldn't accept Assange being treated as a direct enemy.

[George II]

21. I read the entire article that you linked.

The first line of the article (and the following sentences as well) are:


THE US military has designated Julian Assange and WikiLeaks as enemies of the United States - the same legal category as the al-Qaeda terrorist network and the Taliban insurgency.

Declassified US Air Force counter-intelligence documents, released under US freedom-of-information laws, reveal that military personnel who contact WikiLeaks or WikiLeaks supporters may be at risk of being charged with "communicating with the enemy", a military crime that carries a maximum sentence of death.

But that first line is subjective and speculative. Operative term in the second paragraph is "MAY BE AT RISK....."

The Pentagon spokesman didn't backpedal because the Pentagon never forwardpedalled!

[robinlynne]

24. may be at risk of a mlitary cirme which carries the maximum sentence of death!! Read your post!!!!!

[George II]

26. MAY be at risk, depending on WHAT that communication is, it's not a given that they'll be at risk!

[robinlynne]

37. so? Under what other circumstances MIGHT you be at risk of being pout to death for talking to someone

[George II]

58. I recall there were several if not many that we learned of in basic training

But nothing in the UCMJ is speculative

[AntiFascist]

38. See post #25 below...

the military code specifically uses the wording "shall be put to death or other punishment...." not 'may be', and it is punishment for offenses involving communicating with the enemy indirectly, which is precisely the point that Little is making. Wikileaks is not legally designated as an enemy target, but communicating with them IS considered indirectly communicating with the enemy.

[AntiFascist]

25. You're referring to the article from the other thread...

the article in this OP actually quotes the Uniform Code of Military Justice:

“without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

the fact that the investigation in question refers to an "enemy" speaks for itself.

[George II]

28. Yes, I was in the military and am familiar with the UCMJ, but....

my point is, NOWHERE AND NEVER has the US government determined that Assange is "the enemy", in fact they have stated the obvious.

[AntiFascist]

30. My point is...

a military analyst was investigated for communicating with an enemy. The only possible way for her to do such was if she had communicated with Wikileaks, ergo communicating with Wikileaks may be viewed by the military as communicating with the enemy, whether or not Wikileaks itself is legally classified as such.

[kas125]

33. If George Little lis talking, he's lying. My proudest possession is a letter written to my

congressman by Mr. Little, explaining why I wasn't allowed to attend a speech by Micheal Hayden when he was the head of the CIA. If he'll lie about me, and he definitely did, he most likely lies about everything.

[struggle4progress]

39. Scoop has a link to pdf of the actual FOIA release: it doesn't seem to show what some folk claim:

http://img.scoop.co.nz/media/pdfs/1209/AssangeWikiLeaksEnemyUSAFFOI.pdf

It seems to be some records from a (now-closed) 2011 investigation into a military person stationed in the UK

[AntiFascist]

41. It seems to be a Summary Complaint Report...

where the title page indicates:

MATTERS ALLEGED: Communicating with the Enemy

and all of the items seem to relate to the subject either attending anti-war meetings of "like-minded people" who supported Assange, or evidence of the subject's own obsession with Assange and Bradley Manning.

The matter was closed, apparently, because it fails to show that there was any actual communication with Assange or Wikileaks.

It can't be any clearer than that.

[struggle4progress]

43. The matter was closed because there was no evidence she had released any information

to unauthorized persons. It should be clear, to anyone who reads the entire dozen pages, that the actual concern, and the actual point of the investigation, was whether such release had occurred. Her financial transactions were scrutinized for that reason; she was asked whether she had released any information; persons, who knew her, were asked whether she might release any information; and she discussed with investigators, methods by which information could be released

[AntiFascist]

45. Wrong, your pretzel logic doesn't hold up...

the investigation was not about "release of classified information", it was about "communicating with the enemy". It doesn't matter what was released, what matters is whether there was any communication at all.

[struggle4progress]

48. The investigation actually began due to her failure to follow the directives of the 11 January 2011

memorandum: note that the complaint regarding the 11 January 2011 memorandum is simply a complaint that she did not follow a lawful order, and the natural reading of that fact is simply that the military had directed all personnel to avoid contact with Wikileaks in the aftermath of Manning's arrest; that would explain why she was advised not to attend Assange's trial, for example

I give a quick overview of the documents in my #42: http://www.democraticunderground.com/1014249754#post42

You need to read the documents: the investigation is very obviously about whether she engaged in unauthorized release of information, and (if so) to whom she might have released information

[AntiFascist]

50. I understand the order to avoid contact with Wikileaks...

but the allegation is clearly about "communication with the enemy", not 'release of information'.

Discussing matters with like-minded individuals, using Twitter and blogs, or attending an extradition trial were not enough to demonstrate that there was contact or interaction with Wikileaks. It's as simple as that. She may have been advised not to attend the trial, but since when does attending a trial necessarilly mean that there was interaction with the defendent?

[struggle4progress]

57. "Communicating with the enemy" is expansively construed. Communicating restricted military

information to Assange or to Wikileaks could qualify as "communicating with the enemy" -- even if neither Assange nor Wikileaks were per se considered the enemy -- because either Assange or Wikileaks could be assumed subsequently to disseminate the information widely and indiscriminately, because the military leaker could therefore reasonably presume enemies of the US would therefore be likely to obtain access to the leaked information, because the statute contemplates both direct and indirect communication, and because the statute applies even when the enemy fails to acknowledge or even fails to receive the information

The investigation in this case concerned a women who, contrary to order, began to frequent the Wikileaks website and who, contrary to advice, repeatedly attended Assange's trial. She also began to use screen names indicating sympathy with Assange, Wikileaks, and Manning; she further regularly posted pro-Assange Twitter messages; and in addition, she associated with some pro-Assange and/or pro-Manning groups in the UK. She also reportedly exhibited some psychological symptoms during this period. Since she had SIPR NET access and a Top Secret security clearance, there was some concern, and an investigation was launched, into whether she had communicated with the enemy. She was denied further access to restricted information. The investigation apparently produced no evidence that she had leaked anything

I do not think, and never claimed, that her attending Assange's trial could be construed as communication with the enemy. What I have asserted is simply that the directives of the Undersecretary's Memorandum of 11 January 2011 may include general orders for personnel to avoid contact with Wikileaks and/or any Wikileaks personnel, as that would explain why the investigation begins with the complaint that she had disobeyed a lawful order

[AntiFascist]

61. Where in the report does it allege...

that she might be communicating restricted military information? The only allegation I can see involves communication with the enemy, period. Communicating with the enemy is still an offense, whether or not there is exchange of restricted information.

[struggle4progress]

63. You obviously haven't read the documents

... <b6 b7c> believed SUBJECT would not divulge any classification to any unauthorized individuals ... SUBJECT had access to SIPR but <b6 b7c> did not believe SUBJECT looked on SIPR often ... <b6 b7c> believed SUBJECT had the potential to leak classified information ... Lt Col <b6 b7c> explained that in light of SUBJECT's related feeling towards USAF and military service, he intended to suspend SUBJECT's access to SIPR ... <b6 b7c> was unaware if SUBJECT traveled outside the UK ... <b6 b7c> did not think SUBJECT was a National Security risk ... SUBJECT's access to classified information has since been revoked ... SUBJECT explained that at no time was she ever asked to provide or supply any classified FOUO information ... SUBJECT stated that she was not subverted ... SUBJECT pointed out that SIPRnet access was not closely monitored ... SUBJECT reiterated that she had never disclosed any classified or for official use only (FOUO) information and was never approached to provide any military information ...

Almost the whole fuggin investigation is about whether she's a security risk: has she released any info? has anybody tried to get her to release any info?

[AntiFascist]

65. Again, my only point is...

she would have been found guilty just for communicating with Assange. You ask: "Has anybody tried to get her to release any info?" Even if she refused to release info to Assange, just communicating with him would have been enough for them to throw the book at her, but there was no evidence of that and they couldn't. What if Assange told her to starting searching for certain keywords? No restricted information disclosed yet, but certainly the military would want an end to that relationship.

Sure, they were obviously concerned if she might be passing restricted information to Wikileaks, but the allegation under investigation was much broader than that. They were looking for evidence of any communication at all, and found none.

[reorg]

66. no, the investigation began due to her interest in Wikileaks

which is not contrary to any lawful order.

The complaint regarding the 11 January 2011 memorandum is based on an allegation that she accessed the Wikileaks website.

Which is not what the 11 January 2011 memorandum forbids, the memorandum simply notifies members of the military of their obligations with respect to protecting classified information EVEN IF they come across such classified information on websites such as wikileaks.org.

IOW, the suspicion that she may have accessed wikileaks.org or other websites with information published by Wikileaks must triggered another suspicion, that she might have done so "in violation" of the memorandum, to wit:

Except as authorized by DoD policy and procedures, DoD employees or contractors shall not, while accessing the web on unclassified government systems (including BlackBerries or other smartphones), access or download documents that are marked classified (including classified documents publicly available on WikiLeaks.org and other websites), as doing so risks putting classified information on unclassified IT systems.

• This requirement applies to accessing or downloading that occurs using government computers or employees' or contractors' personally owned computers that access unclassified government systems, either through remote Outlook access or other remote access capabilities that enable connection to these government systems.


• This requirement does not restrict employee or contractor access to unclassified, publicly available news reports (and other unclassified material) that may in turn discuss classified material, as distinguished from access to the underlying classified documents available on public websites or otherwise in the public domain.

The investigation further involved the following questions:

• What were her political views especially regarding recent and ongoing wars?


• Did she have personal motives to act contrary to her obligations as a member of the military?


• Did she have contacts with individuals or groups with whom she shared her personal views?


• Was she in a position to access classified information not yet in the public domain?

With the objective to find out if she had been "communicating with the enemy".

Now, in theory, there may be a very remote possibility that some analyst stationed in the UK converts to Wahhabism and meets al-Qaeda terrorists on the sly, or happens to be introduced to Taliban representatives in a London pub. I'm not sure what kind of information the analyst could provide which such designated "enemies" might be interested in, but nothing in the disclosed investigation report even remotely points to such suspicions.

The information war opponents are interested in and what Wikileaks has published is what the military doesn't want to be public knowledge about their operations. Embarrassing stuff, information detailing how they lied and what the war is actually about. Such embarrassment is considered bad PR, impeding progress on the war front in a general way if used to discourage domestic support. It is not exactly news that war opponents are considered to be "traitors" by those who proclaim "you are either with us or with the terrorists" and act accordingly. Of course they are considered an "enemy". The overzealous investigator made it clear. Applying a strictly legal interpretation, he may have been just overreaching. But if one is to apply common sense and logic to his allegation, it is very apparent that Wikileaks is meant to be the enemy here.

[struggle4progress]

67. You carelessly read the FOIA release and the 11 Feb 2011 memo

You claim: The complaint regarding the 11 January 2011 memorandum is based on an allegation that she accessed the Wikileaks website. Which is not what the 11 January 2011 memorandum forbids, the memorandum simply notifies members of the military of their obligations with respect to protecting classified information EVEN IF they come across such classified information on websites such as wikileaks.org

But your claim is incorrect

Thomas A. Ferguson, Principal Deputy Under Secretary of Defense for Intelligence, wrote the 11 Feb 2011 memorandum, directing DoD personnel to "follow established procedures for accessing classified information only through authorized means." The beginning page of the actual FOIA release (after the two page FOIA cover letter) states clearly:

... SUBJECT allegedly visited the website Wikileaks in violation of a Memorandum From the Undersecretary of Defense, dated 11 Jan 11, which violated Article 92, Failure to Obey, UCMJ ...

This is simply because: accessing the website Wikileaks is not an established procedure for accessing classified information through authorized means. Such access would contradict the lawful general order or regulation embodied in Ferguson's 11 January 2011


Thomas A. Ferguson
Principal Deputy Under Secretary of Defense for Intelligence
http://www.defense.gov/bios/biographydetail.aspx?biographyid=230


Ferguson's 11 Feb 2011 memorandum is available as pdf from the FAS site:

... It is the responsibility of every DoD employee and contractor to protect classified information and to follow established procedures for accessing classified information only through authorized means ...

http://www.fas.org/sgp/othergov/dod/wl-notice.pdf


From beginning page of the actual FOIA release (after the two page FOIA cover letter):

... SUBJECT allegedly visited the website Wikileaks in violation of a Memorandum From the Undersecretary of Defense, dated 11 Jan 11, which violated Article 92, Failure to Obey, UCMJ ...

Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.

10 USC § 892 - Art. 92. Failure to obey order or regulation
http://www.law.cornell.edu/uscode/text/10/892

[reorg]

69. You fail to understand what I am saying and what the FOIA release says

"accessing the website Wikileaks is not an established procedure for accessing classified information through authorized means."

only when you access CLASSIFIED INFORMATION at the website wikileaks.org, not when you just access the site.

The allegation in the FOIA release does not say that the analyst accessed classified information. And even if we interpret the allegation generously as implying she did (although nobody is cited to have made such an allegation), your conclusion that:

"The investigation actually began due to her failure to follow the directives of the 11 January 2011"

is obviously false. This may have been a suspicion, at most. A pretext, perhaps, to snoop into her private life.


The matter alleged is not failure to obey orders, which would have been in violation of UCMJ Article 92:

... UCMJ Article 92 can be used to prosecute people for violating orders about the security, handling, and custody of classified information (for example Paragraph 4-6(k), Army Regulation 25-2). http://court-martial.com/ucmj-and-espionage/

No, her interest in Wikileaks caused someone to suspect she was "communicating with the enemy".

[struggle4progress]

40. The UCMJ crime "communicating with the enemy" is expansively understood to mean

deliberate release of information that could, as a result, fall into enemy hands either directly or indirectly -- nor does it actually require the information to be verifiably received by the enemy

Manning is charged with such an offense because the deliberate release of information to an organization such as Wikileaks has the reasonably foreseeable result that the information would fall into enemy hands upon dissemination by Wikileaks: so the charge does not require a determination that "Wikileaks is an official enemy" --

... The Taliban has issued a chilling warning to Afghans, alleged in secret US military files leaked on the internet to have worked as informers for the Nato-led coalition, telling Channel 4 News "US spies" will be hunted down and punished ...

Taliban hunt Wikileaks outed Afghan informers
By Jonathan Miller
Updated on 30 July 2010
http://www.channel4.com/news/articles/uk/taliban+hunt+wikileaks+outed+afghan+informers/3727667.html

[AntiFascist]

46. Please provide a link...

for how the UCMJ code is "expansively understood", or is that just your interpretation?

The code seems pretty clear to me where, one of the clauses, dictates that any intercourse with the enemy, directly or indirectly, is a crime:

http://usmilitary.about.com/od/punitivearticles/a/mcm104.htm

communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly

[struggle4progress]

47. Aiding the Enemy (UCMJ art. 104). Five separate acts are made punishable by this article ...

The final offense under this article is communication with the enemy. Any form of unauthorized communication, correspondence, or intercourse with the enemy is prohibited, whatever the accused’s intent. The content or form of the communication is irrelevant, as long as the accused is actually aware that he is communicating with the enemy. Completion of the offense does not depend on the enemy’s use of the information or a return communication from the enemy to the accused; the offense is complete once the correspondence issues—either directly or indirectly—from the accused ...
<pdf link:> https://www.jagcnet.army.mil/DocLibs/TJAGLCSDocLib.nsf/xsp/.ibmmodres/domino/OpenAttachment/doclibs/tjaglcsdoclib.nsf/8400639488825BD385257549006019A4/Body/Chapter%209%20%20Criminal%20Law.pdf


(also available here: )
2006 Operational Law Handbook pp206ff
http://books.google.com/books?id=EBTul-duLEYC&pg=PA206&lpg=PA206&dq=ucmj+104+communicating+with+enemy&source=bl&ots=Z4sOSpUF1L&sig=k4LvhgQ1C4TaDQuvxM8lqohbs2I&hl=en&sa=X&ei=5m9nUMuBE4XU9ATrmQE&ved=0CDIQ6AEwAA#v=onepage&q=ucmj%20104%20communicating%20with%20enemy&f=false

28. Article 104—Aiding the enemy
a. Text of statute.
Any person who ...
(2) without proper authority, knowingly ... gives intelligence to or communicates ... with ... the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.

b. Elements ...
(5) Communicating with the enemy.
(a) That the accused, without proper authority, c o m m u n i c a t e d , c o r r e s p o n d e d , o r h e l d i n t e r c o u r s e with the enemy; and;
(b) That the accused knew that the accused was c o m m u n i c a t i n g , c o r r e s p o n d i n g , o r h o l d i n g i n t e r course with the enemy.

c. Explanation.
(1) Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission.
(2) Enemy. For a discussion of “enemy,” see paragraph 23c(1)(b) ...
(6) Communicating with the enemy.
(a ) Nature of the offense . No unauthorized communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communication, correspondence, or intercourse may be conveyed directly or indirectly ...

Manual for Courts-Martial (MCM), 2012 Edition (c.p326/884 identified in doc as pp IV-41 and IV-42)
<pdf link:> http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf


(also available here: )
Punitive Articles of the UCMJ
Article 104—Aiding the enemy
http://usmilitary.about.com/od/punitivearticles/a/mcm104.htm

[AntiFascist]

51. As I've asked many times before...

where specifically in the report does it demonstrate that the analyst communicated with Assange or Wikileaks? Jeff47 claims that the anti-war group was Wikileaks, but that doesn't seem to be true. You both seem to imply that attending a trial involves communication or interaction with Wikileaks, but that's not true either.

Your original post #40 stated that "communicating with the enemy" is understood to mean release of information that COULD fall into the hands of the enemy. As Jeff47 should be able to argue, you are confusing two separate offenses.

Release of classified info that COULD fall into the hands of the enemy certainly is prosecutable.

But, for there to be communication with the enemy, you must demonstrate that there was indeed a channel of communication or interaction with the enemy. Plenty of soldiers post stuff on the internet that COULD be viewed by the enemy. Prosecuting that as an offense would be ludicrous.

[struggle4progress]

55. No: I explained that "communicating with the enemy" is expansively construed

and I explained why communicating restricted military information to Assange or to Wikileaks can qualify as "communicating with the enemy" -- even if neither Assange nor Wikileaks were per se considered the enemy -- because either Assange or Wikileaks could be assumed subsequently to disseminate the information widely and indiscriminately, because the military leaker could therefore reasonably presume enemies of the US would therefore be likely to obtain access to the leaked information, because the statute contemplates both direct and indirect communication, and because the statute applies even when the enemy fails to acknowledge or even fails to receive the information

You then asked for links demonstrating that "communicating with the enemy" was expansively construed. I provided two official documents and duplicate links for both

The investigation in this case concerned a women who, contrary to order, began to frequent the Wikileaks website and who, contrary to advice, repeatedly attended Assange's trial. She also began to use screen names indicating sympathy with Assange, Wikileaks, and Manning; she further regularly posted pro-Assange Twitter messages; and in addition, she associated with some pro-Assange and/or pro-Manning groups in the UK. She also reportedly exhibited some psychological symptoms during this period. Since she had SIPR NET access and a Top Secret security clearance, there was some concern, and an investigation was launched, into whether she had communicated with the enemy. She was denied further access to restricted information. The investigation apparently produced no evidence that she had leaked anything

I do not think, and never claimed, that her attending Assange's trial could be construed as communication with the enemy. What I have asserted is simply that the directives of the Undersecretary's Memorandum of 11 January 2011 may include general orders for personnel to avoid contact with Wikileaks and/or any Wikileaks personnel, as that would explain why the investigation begins with the complaint that she had disobeyed a lawful order

[AntiFascist]

59. The only issue I have...

is your statement that: "communicating with the enemy" is understood to mean release of information that COULD fall into the hands of the enemy.

Communicating with the enemy may involve release of information that is not classified, but could still be prosecutable if there was contact with Wikileaks. That's what the report was about. Posting information about her feelings on the mistreatment of Assange or Manning on the internet would not be prosecutable since she would have no knowledge about who might be reading the post. If Wikileaks responded and they began establishing a dialog, then that WOULD be prosecutable, even if there was no exchange of classified information. Do you understand?

[struggle4progress]

64. You obviously haven't read the documents

... <b6 b7c> believed SUBJECT would not divulge any classification to any unauthorized individuals ... SUBJECT had access to SIPR but <b6 b7c> did not believe SUBJECT looked on SIPR often ... <b6 b7c> believed SUBJECT had the potential to leak classified information ... Lt Col <b6 b7c> explained that in light of SUBJECT's related feeling towards USAF and military service, he intended to suspend SUBJECT's access to SIPR ... <b6 b7c> was unaware if SUBJECT traveled outside the UK ... <b6 b7c> did not think SUBJECT was a National Security risk ... SUBJECT's access to classified information has since been revoked ... SUBJECT explained that at no time was she ever asked to provide or supply any classified FOUO information ... SUBJECT stated that she was not subverted ... SUBJECT pointed out that SIPRnet access was not closely monitored ... SUBJECT reiterated that she had never disclosed any classified or for official use only (FOUO) information and was never approached to provide any military information ...

Almost the whole fuggin investigation is about whether she's a security risk: has she released any info? has anybody tried to get her to release any info?

[AntiFascist]

68. The report itself contains a lot of information...

much of it does not even relate directly to the stated allegation, and statements about classified information seem to support their decision to take away her security clearance.

Passing restricted information to the enemy is considered an aggravated form of communication with the enemy, but if Wikileaks is not considered the enemy itself, then the investigation would have to show that the subject knew the information would make its way to the enemy (by definitely getting published). Wouldn't they also have to show that the information actually got published first?

The investigation was not focused on tracking any restricted information, it was much more concerned about who she was in communication with. The Pentagon spokesman (cited in the OP) pretty much admits that Assange and Wikileaks were referenced as the "enemy", but he had to backtrack by stating legal reasons for their not officially being designated as such. Why didn't he just clarify who the enemy was instead of making the vague statement that they were not the enemy "per se" (as a matter of law)?

[struggle4progress]

42. As far as I can tell, the FOIA release does NOT identify either Assange or Wikileaks as "the enemy"

The actual release can be obtained from the link in my #39 upthread. In a brief summary:

It concerns an investigation beginning on 21 July 2011, and ending on or before 10 October 2011 of a female USAF personnel, who had access to SIPR NET and who had accessed the Wikileaks website, contrary to an earlier (11 January 2011) order. Said person became aware of Assange through a SNL skit, attended a portion of Assange's trial, against advice, and became very sympathetic towards Wikileaks and the Assange and Manning cases. An investigation, into the possibility that said person was communicating with the enemy was launched after reports that said person had suffered mental breakdown and was meeting with anti-US/anti-military groups in the UK. Financial investigation revealed nothing. Said person reportedly believed Manning was being held and tortured at GITMO. Commanding officer described said person as timid and introverted, avoiding social interactions. Said person's access to classified information was revoked. Said person pointed out to investigators how easily classified information could be downloaded from SIPR machines

[AntiFascist]

44. You are responding to the wrong thread...

please post your argument in the other thread where Assange is labelled "Enemy of the State"

The article in this OP concerns whether communicating with Assange is considered COMMUNICATING with the enemy.

From your own summary:

An investigation, into the possibility that said person was communicating with the enemy was launched after reports that said person had suffered mental breakdown and was meeting with anti-US/anti-military groups in the UK.

[struggle4progress]

49. The first sentence is your OP is verifiably false: it reads

A military document obtained under the Freedom of Information Act identifies Wikileaks founder Julian Assange as an “enemy”

but whoever wrote that sentence had not read the documents. After reading the documents several times, I replied

As far as I can tell, the FOIA release does NOT identify either Assange or Wikileaks as "the enemy"

and then provided a summary of what the documents actually involve

So I was not responding in the wrong thread: I was debunking the incorrect assertion in the first sentence of your OP here

[AntiFascist]

52. That sentence is at best debatable...

please read carefully what the Pentagon spokesman said:

he inisists that it was not intended as a "legal designation of him per se". He does not deny, however, that it was some sort of indirect designation. He goes on to explain that Assange is not considered a member of an <direct> enemy, or designated as an enemy military target.

The main point of the article is that communication with Assange is considered communicating with the enemy.

[struggle4progress]

53. Please identify where in the FOIA release such a statement occurs, because

I have been through the release repeatedly and have not find any assertion such as "communication with Assange is considered communicating with the enemy" anywhere in the released documents

[AntiFascist]

54. You might look at the title page...

MATTERS ALLEGED: Communicating with the Enemy

Since the entire report only deals with the SUBJECT's obsession with Assange, Wikileaks and Manning, and there is no mention of her trying to communicate with some other enemy such as Al Qaeda, one must assume that she was being investigated for contacting Wikileaks. You've already pointed out in another post that the investigation came about because she was ordered not to contact Wikileaks.

[struggle4progress]

56. Yes, "communicating with the enemy" is construed expansively. If one provides restricted

military information -- to a person or to an organization, who can be expected to disseminate the information widely and indiscriminately, with great publicity -- then the rational presupposition will be that the enemy could obtain the information thereby. One can be prosecuted, on the criminal charge "communicating with the enemy," without direct contact with the enemy and even without any evidence that the enemy received the information

[AntiFascist]

60. That is true as far as classified information is concerned...

but the FOIA document makes no mention that she was being investigating for releasing classified information, only that she was investigated for communicating with the wrong people. She could be guilty of communicating with the enemy even if there was no release of classified information.

Communicating non-classified information is not prosecutable unless it can be shown that there was interaction with the other party.

[struggle4progress]

62. You obviously haven't read the documents

... <b6 b7c> believed SUBJECT would not divulge any classification to any unauthorized individuals ... SUBJECT had access to SIPR but <b6 b7c> did not believe SUBJECT looked on SIPR often ... <b6 b7c> believed SUBJECT had the potential to leak classified information ... Lt Col <b6 b7c> explained that in light of SUBJECT's related feeling towards USAF and military service, he intended to suspend SUBJECT's access to SIPR ... <b6 b7c> was unaware if SUBJECT traveled outside the UK ... <b6 b7c> did not think SUBJECT was a National Security risk ... SUBJECT's access to classified information has since been revoked ... SUBJECT explained that at no time was she ever asked to provide or supply any classified FOUO information ... SUBJECT stated that she was not subverted ... SUBJECT pointed out that SIPRnet access was not closely monitored ... SUBJECT reiterated that she had never disclosed any classified or for official use only (FOUO) information and was never approached to provide any military information ...

Almost the whole fuggin investigation is about whether she's a security risk: has she released any info? has anybody tried to get her to release any info?

[AntiFascist]

70. Again, please note...

MATTERS ALLEGED: Communicating with the Enemy

It's obvious from the Pentagon statements that they have no problem viewing Assange and Wikileaks as some sort of "enemy", just not an official targeted enemy that could be taken out by drones. They wouldn't want to appear that oppressive.

[reorg]

71. it would appear the investigator was following the instructions in this "Tactical Reference Guide":

http://www.wired.com/images_blogs/dangerroom/2012/10/Radicalization-FINAL090911.pdf

Radicalization into Violent Extremism Tactical Reference Guide
A Guide for Military Leaders · August 2011

They must have detected the first steps of "Radicalization into Violent Extremism":

OBSERVE Personal Issues
Indicators that should be observed for the subject’s predisposition to radicalization and violence:

■ Complains about bias
■ Exhibits abrupt behavioral shifts
■ Is socially withdrawn
■ Is frustrated with mainstream ideologies
■ Experiences personal crisis and does not properly recover

FLAG Possible Radicalization
The subject’s actions that should encourage leaders to investigate and bring to the attention of senior-ranking personnel:

■ Is sympathetic to radical groups
■ Visits extremist websites/blogs
■ Establishes website/blog to display extremist views
■ Attends rallies for extremist causes
■ Associates with known radicals
■ Isolates self from unit members

in order to determine if she was a nonviolent threat:

"active extremists or criminals who are willing to provide information (espionage) or conduct subversion or sabotage and conceal their actions"

and which of the following "Command Options" were applicable:

■ Administrative or disciplinary action deemed appropriate by the Commander, to include counseling, based on the specific facts and circumstances of the particular case
■ Bar to reenlistment actions, as appropriate
■ Involuntary administrative separation for unsatisfactory performance or misconduct or for conduct deemed prejudicial to good order and discipline or morale
■ UCMJ Action
– Article 92: Failure to obey a lawful order
– Article 116: Riot or breach of peace
– Article 117: Provoking speeches or gestures
– Article 134: Good order and discipline