Europe's Medieval Libel Laws: Thwarting Free Speech

2 October 2012

Il Giornale used to be an excellent Italian newspaper. Or at least, since most Italian newspapers aren’t what you and I would call real newspapers (meaning they’re purveyors of opinions, not news), a well written one.

How much of a rag? well in August, the newspaper printed a front-page headline above a photo of Angela Merkel, in the unfortunate posture of raising her right arm. The caption: “FOURTH REICH.”True, the paper was pretty right-wing, and also true, ultimately purchased by Silvio Berlusconi, which is always sooner or later the death knell for quality. But for a while Silvio kept his hands off his newsprint acquisition. Then he became prime minister, and didn’t. He fired the editor and made his brother the new owner. Il Giornale became a rag.

To cite an even better example: five years ago, when a Berlusconi party parliamentarian was outraged by a lower court’s decision to grant a 13-year-old the right to an abortion, Alessandro Sallusti, now the editor of Il Giornale, published his unhinged column. It read in part: “If there were the death penalty and it were ever applicable in a situation, this would be the case.” By which the writer meant “the parents, the gynecologist and the judge” should all face death if only a more sensible Italy had the death penalty.

Except that Italy doesn’t have the death penalty. And idiots who sign badly written, imperfectly reasoned columns with the nom de chutzpah “Dreyfus” should probably be ignored. Alas, the 14-month jail sentence of Sallusti, convicted of libel because he allowed the imperfectly reasoned column to be published,has just been upheld by Italy’s supreme court. Alas, too, that puts me in the category of those who have to defend both the editor and the column’s writer, whose real name, as everyone in Italy just discovered, is Renato Farina.

Worse, Italy is far from the only nation in Europe where free speech is shaky, sometimes non-existent. Last year, Astellas Pharma, a Japanese multinational, sued the French periodicalPrescrire for its lousy review of an eczema ointment. The venue was a French court, and for good reason. Although Prescrire also has an English-language website, no smart thinking Japanese lawyer would test the corporation’s luck in the US, where libel laws aren’t necessarily the free-speech bludgeons they are elsewhere. As a CBS News blogger put it, “European libel laws are infamously medieval, designed to protect the ruling classes against criticism from their underlings.”

And speaking of the ruling classes: last year, too, Monaco’s Prince Albert sued—in a French court—an American former underling who claimed the prince had accepted lavish gifts from Russia, which is a violation of Olympic Committee rules. On the other hand, the wealthy don’t have to go to Paris to make a killing. Cameron Diaz, Roman Polanski, and Jennifer Lopez allprefer London for their libel suits.

Best advice for those who choose to speak their minds these days? Write whatever you wish to write—in the United States. 

• Judy Bachrach's blog

Abu Hamza and the European Court

9 October 2012

According to his lawyers, Abu Hamza al-Masri suffers from sleep deprivation, depression, and the effects of being confined in an unrelentingly “harsh environment.” In other words, he sounds a lot like my son who is taking his midterms at vet school, only a bit more upbeat.

A little history is in order here. For the last eight years, the former imam of the Finsbury Park mosque in London has been fighting extradition to New York. There he faces 11 charges related to a kidnapping conspiracy in Yemen, which resulted in the deaths of four Western hostages, along with a few more charges: apparently, around a dozen years ago, Masri, less stressed at the time, tried to set up a terrorist training camp in Oregon; also, he allegedly provided aid to al-Qaeda.So—very much like the judges of the European Court for Human Rights in Strasbourg—I naturally feel a certain affinity for Abu and am, also like the judges, concerned about his mental and physical health. Perhaps he could use one of those Sleep Number beds, so he can relax more in the US, which is where he finally happens to be after far too long.

Since the United States promised not to put Masri to death if convicted in an American court, you’d have thought the European Court of Human Rights, to which the UK is a signatory, would have little problem with his extradition.

However, that’s just what the ECHR did worry about. Endlessly. Would Masri be treated “humanely” in an American jail? Would he, during his long sojourn, be subjected to “degrading treatment”?  Is the US and its Eighth Amendment of the Constitution, which bans cruel or unusual punishment, as noble, compassionate, and fair-minded as, say, Article 3 of the European Code, which states: “No one shall be subject to torture … or inhuman punishment”? Is life imprisonment, which Abu and his cohorts will very likely get, a form of torture?

These are the kinds of questions the Strasbourg court might mull over when a terrorist is due to be sent back to, say, Saudi Arabia, where guilty verdicts can lead to missing body parts, including heads. But it took five years of hand-wringing for the judges to decide that maybe the US wasn’t Saudi Arabia; and that the supermax prison in Florence, Colorado, which will be the likely future home of Masri and five codefendants, was probably an okay venue, even for a person suffering from insomnia.

What else exactly did Masri’s and the other defendants’ lawyers consider degrading or inhumane about the American supermax prison? Well, there’s a fair chance that, when convicted, all five will end up, separately of course, in solitary confinement, which some of the judges initially found perturbing.

Then, when they discovered that even the Colorado prison forbids permanent solitary confinement for even al-Qaeda prisoners, the judges relented. Masri, they said, could in fact face trial in the US because some day or other he will finally be able to communicate with like-minded fellow prisoners.

And lucky for him: there will indeed be those famished for his words when Masri alights in Colorado. Richard Reid, the notorious shoe bomber and, by happenstance, Abu’s former congregant at the Finsbury Park mosque, is already there.

Waiting …

Photo Credit: CherryX

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Nobel Committee Misfires for Peace, Again

17 October 2012

It must be nice to be a member of the Nobel committee that determines who or what gets the Peace Prize. You are accountable to no one. You can make idiotic decisions about who is a peace promoter as well as, for that matter, what constitutes peace. You can give the prize to Henry Kissinger, a guy almost singlehandedly responsible for rescinding a do-not-assassinate warning to certain murderous South American dictators, among them General Augusto Pinochet of Chile.

Now the Nobel people have informed the world that the European Union is at least as deft and passionate about promoting peace as Kissinger. Or could be at least. The Nobel Peace Prize committee likes to promote a kind of wild-eyed optimism when naming its winners (after all, almost four years back it gave the peace prize to Barack Obama during his first milliseconds as president of the United States: possibly on the premise that maybe the new US president could be a peacemaker if the idea appealed to him some day or other).Five days after the cancellation of that warning, Orlando Letelier, a dissident Chilean politician and economist, and Ronni Moffitt, a young American woman, were both killed in Washington, DC, when the Chilean secret police arranged to have the car they were riding in blown up. The media used to say that this was the first foreign attack on American soil since Pearl Harbor. Well, that was then …

Even Nobel committee chairman Thorbjorn Jagland used the conditional tense during the current Peace Prize go-round: the EU, hesaid, deserved the peace prize because “we saw that the prize could be important in giving a message to the European public of how important it is to secure what they have achieved on this continent.”

Of particular interest to Jagland was the mass murder in the Balkans. “We have to remember,” Jagland went on to say, “that not many years ago these people were slaughtering each other on the streets.” Interesting words, considering that, as Doug Bandow writes in Forbes, it was actually the EU’s very own founding member, Germany, that helped set off the Balkans debacle in the early ’90s by recognizing seceding territories prematurely.

Even more interesting: it was not the EU at all but NATO (hounded by the US) that engaged in widespread airstrikes against Bosnian Serb positions, which ultimately forced the latter to withdraw their heavy weapons from Sarajevo—and it was the Clinton administration that helped end all that slaughter with the Dayton (as in Ohio) Agreement. The European Union—let us be blunt about this—didn’t lift a finger: not to disarm, not to prevent and not to reconcile.

But in order to determine EU worthiness in being offered and then accepting the Nobel Prize, let’s move a bit closer to the present day. In early May of this year, Hamas—which the EU has described as a terrorist organization—announced that five component states had been engaged in secret political talks with the group. Among them, according the Associated Press, which interviewed a number of Hamas officials: Britain, the Netherlands, and France. (Britain’s response was one of those non-denial denials: “We do not have any direct contact with Hamas,” said its Commonwealth Office. Meaning that … they actually kind of do have contact with Hamas.)

Of course the best part of the latest Peace Prize bestowal is that Norway, home of the Nobel, is not an EU member. Its population has seen to that. In a 1972 referendum, more than half the population voted against joining. In 1994, more than half the population again voted against joining.

Maybe the average Norwegian knows something the Oslo Nobel committee members do not.

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Return Fire in Cyber Warfare

23 October 2012

Here’s what’s been going on in the cyber universe. In Saudi Arabia, a country for which the Iranian regime has little use, cyber attacks erased files in more than 30,000 computers owned by Aramco, the oil company. That was in August. Then cyber attacks hit JP Morgan Chase, Bank of America, and more than likely Wells Fargo.

The next thing you knew, PNC Financial was coming clean on CNBC: “We had the longest attack of all the banks.” The hackers, said CEO James Rohr, “just pummeled us.”But it didn’t stop there. Last week, cyber attacks affected Capital One Financial Corporation and the BB&T Corporation, and all these banks, with their usual respect for frankness, honesty, and clarity about their inner workings attributed the messes that ensued either to “a large volume of traffic going to the web site,” which is certainly a delicate way of describing foreign-induced chaos, or “a denial of service event,” which could mean … absolutely anything you want it to mean. Why the banks bothered with these obfuscations is anyone’s guess, since within hours a group called Qassam Cyber Fighters claimed it was behind the attacks—all of them—and US officials said, well yes, that’s one interesting attack group that’s presumed to be backed by Iran.

Now let’s look at recent history. In 2011, David Sanger, author of Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power, revealed in detail the fairly dramatic saga of the creation and deployment of the Stuxnet worm. So much detail, in fact, and from so many knowledgeable sources, that it was only possible to conclude that top US administration officials as well as their Israeli intelligence counterparts were actuallyboasting to the author about the devastating computer worm they developed and its efficacy in wrecking Iranian nuclear centrifuge equipment and delaying Iranian nuclear capability—for a time, anyway. (The question of how much time is, of course, now a source of bitter dispute between the worm’s two creators.)

The point is that it became pretty obvious after the New York Times began publishing excerpts from the Sanger book that certain elements in the US government wanted the Iranian regime to know just how seriously it took the Iranian nuclear build-up, and just how cyber-muscled the US had become. Not President Obama, however. Sanger writes that he “repeatedly expressed concerns that any American acknowledgement that it was using cyber weapons—even under the most careful and limited circumstances—could enable other countries, terrorist, or hackers to justify their own attacks.” But Sanger’s national security sources, evidently desiring a certain measure of acclaim, clearly used the author to send a worldwide message.

So what does the US—what does any powerful nation that has gone out of its way to provoke Iran in cyberspace—expect these days? US Defense Secretary Leon Panetta can warn of a “pre-9/11 moment,” an impending “cyber-Pearl Harbor,” pointing out that “an aggressor nation or extremist group could use these kinds of cyber tools to gain control of critical switches.” But guess what, Leon? They already have.

True, no one has yet derailed passenger trains or contaminated the water supply or shut down a power grid—other possibilities that Panetta outlined. But that most likely is just a matter of time. Not will, not technological capability, not nerve—time.

Live by cyber attacks, in other words, and you can so very easily die by cyber attacks.     

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Getting Jail Time in Italy

29 October 2012

So here’s a question for you: When exactly do you think Silvio Berlusconi, the longtime Italian prime minister, and now just your basic ordinary tax-cheating citizen, will go to prison? Because a year of prison is the sentence for the tax fraud charge of which Berlusconi has, much to his amazement and usual sense of outrage, just been convicted.

That’s when the judge declares the guilty party free to resume his guilt-laden career. Or reduces the sentence of the guilty party. After sentence reduction—Silvio just had his cut by three years, thanks to some amnesty law—the guilty party then appeals that reduced sentence, forever if need be. And so it goes.If your answer was Never, not a day in prison because the guy’s a multi-billionaire media mogul who more than likely got his start thanks to mafia connections—you were right on the money, pun absolutely intended. In Italy the only people imprisoned are (a) those without clout, (b) those without Italian citizenship, and (c) those without guilt (cf: Amanda Knox). Being guilty in Italy actually improves your chances of acquittal by a huge margin because extreme guilt tends to sharpen the desire for gifted and expensive lawyers—and gifted and expensive lawyers, in turn, can drag out cases or appeals of untoward verdicts for so many years that the statute of limitations for whatever crime one chose to commit runs out.

Now no one in Italy—and by no one I’m definitely including the former prime minister himself—actually believes Silvio is innocent of tax fraud either this time around, or any time around. Years and years ago, when he was already running Italy and the rumors of his graceful ability to sidestep taxes were pretty widespread, I asked him about his special talent. Silvio’s response: “But no one in Italy pays taxes!!” (This remark did not go unnoticed among his countrymen. However, the prime minister happened to be perfectly right in his assessment. Or rather almost right: No one in Italy paid taxes—if they could avoid it. Which meant schoolteachers and low-level government officials had to pay taxes because their wages were a matter of record. But the rich did not. And still do not, for the most part—even under the less excessive and more responsible regime of the technocrat Mario Monti).

So what are we to make of Berlusconi’s recent remark “I was sure I would get acquitted from this totally unreal prosecution”?

Well, he had a right to his indignation, in a way. Analyzers of the fraud timeline may notice that just two days before the verdict, Berlusconi announced that come what may, declared guilty or innocent by the court, he, Silvio, would never run again.

This was a pretty public bribe. And unfortunately for Berlusconi, no one really believed him. Mario Monti, in large part because he inherited a wreck of a country from Berlusconi, is no longer popular, so there’s going to be a vacancy one day. Silvio, on the other hand, has never entirely disenchanted his countrymen. His affair with a teenager, another charge that is likely to get him only theoretical jail time: no problem. His bunga-bunga parties with hookers: not an issue. The guy may be a dog, goes the thinking, but more power to the kennel.

So now “the most persecuted person in the world,” as Silvio likes to call himself, has triumphed again. That may not be the way the media headlines read (“Berlusconi Convicted of Fraud,” claims the Wall Street Journal) or understand the situation. But that’s what happened. His best friend, Fedele Confalonieri, a toady who is chairman of Berlusconi’s media empire, was acquitted of all charges.

Berlusconi has seen the future. It is very likely his—once again.

Photo Credit: European People's Party

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Netanyahu-Obama Relations at a Low Point?

8 November 2012

How happy is Israeli Prime Minister Benjamin Netanyahu with the results of this week’s US presidential election? Let’s put it this way: A guy who embraces Romney in August isn’t likely to bask in Obama’s warmth in November. A guy who shows the UN General Assembly a large piece of cardboard bearing a felt-tipped illustration of a ticking bomb that looks like it’s been pulled straight out of a Road Runner cartoon isn’t one who’s likely get Obama’s devoted attention in the future.

Why Israeli leadership should believe—still, after all this time—that American Jews vote all-Israel all the time in American elections is a puzzle. They never do. Exit polls this time around showed that around 70 percent of American Jews at the polls voted for Obama, a number only slightly lower than four years ago. (As the late Milton Himmelfarb of the American Jewish Committee famously put it: “Jews earn like Episcopalians and vote like Puerto Ricans.”)The bomb was of course Netanyahu’s stab in late September at trying to pull the US into yet another war, this one with Iran, and when that stunt failed, he tried another tack: with every breath the right-wing prime minister seemed to castigate his American counterpart for what he made clear through implication were Obama’s pusillanimous demurrals.

In other words, Mitt Romney’s declaration in late October that Obama had “pushed allies like Israel under a bus”; his insistence, after accepting the nomination, that Obama had pursued what-me-worry policies that left Iran to its own nuclear devices and Americans “less secure”—all this failed to gain traction among the very voters Romney was playing to.

And frankly, it was foolish for Netanyahu to believe his tactics would work. It’s one thing for an American candidate to promise, as Romney did, to move the American Embassy in Israel to Jerusalem. It’s another for a seasoned Israeli politician to believe this is actually going to happen anytime soon.

In Israel right now, there’s a lot of gloom at the top: and not just Netanyahu’s. Defense Minister Ehud Barak gave the kind of blustering assurance that is laced with terror, promising that it “will be possible to overcome any differences in our positions should they arise” (which is a lot like a doctor’s assurance that he’s giving you another set of chest x-rays “just to make sure”). Ronni Bar-Or, a Kadima parliamentarian who heads the foreign affairs and defense committee, was a lot blunter however, sharply criticizing what he calls, with painful accuracy, “Netanyahu’s gamble on Romney.” He only hopes, said the Knesset member, that “Obama will be generous enough so that Israel doesn’t have to pay the price for this dangerous gamble.”

So what’s going to be Obama’s attitude toward Israel in the next four years? Almost certainly the issue of Iran’s nuclear expansion and the potential effect on Israel (far more than on the United States) will arise—again and again and again, in fact. Will Obama be resistant to aiding an ally, should it find itself in imminent peril, simply because that ally’s prime minister fell for Romney?

Probably not. But one thing is certain. The question of what constitutes imminent peril for Israel will be examined with extreme caution and no particular sense of urgency before the US decides to jump in. The kind of extreme caution, in other words, that Netanyahu might have inadvertently brought about.

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The Secret-Keepers: Petraeus, BBC, and Lockheed Martin

12 November 2012

I don’t know. What is it with men? Within one week an incoming chief executive gets fired from a mega-defense company with lengthy and close personal relationships to the Pentagon because he had—to quote Lockheed Martin—“a lengthy close personal relationship” with a subordinate. At the same time General David Petraeus has to resign as head of the CIA because he had a lengthy close personal relationship with a good-looking nutcase.

Clearly, men—men worldwide, especially powerful men—don’t know how to handle sex scandals, sex maniacs, or even plain old sex itself.Oh—and in more or less the same time frame we learn that the head of the BBC, George Entwistle, resigned after just 54 days on the job because: (a) it took a rival network to expose the long history of sexual malfeasance on the part of the BBC’s most famous and beloved television personality, Jimmy Savile, who won’t go to jail for hundreds of sex crimes since he is dead; (b) the BBC had known for well over a year about Savile’s longstanding preference for pubescent girls, in fact even had an expose of its own on Savile in the works—only the network refused to air it; and (c) perhaps to compensate for that signal lapse and subsequent embarrassment, the BBC decided to air a completely different report on child abusers—only in this instance falsely accused Lord McAlpine, a former Tory treasurer, of raping children. In fact, as it turned out, the BBC’s chief source on the allegation acknowledged he had made a mistake after seeing a photo of McAlpine.

So speaking of the last issue, sex itself, let’s go back to Petraeus. Let us assume that maybe generals get a pass when it comes to complications in their love lives: why shouldn’t they? None of our business who they’re sleeping with unless it’s the enemy.

And let’s assume also that even a CIA director might on occasion—well, say, just like a French president or, for that matter, an American one—have someone on the side. Not a great idea for a guardian of the world’s secrets perhaps, but then Petraeus is, the public has always been told, a fine judge of character. It would be natural to assume he would choose a woman who prided herself on discretion, a calm demeanor, and a high degree self-control.

Now let’s examine that Daily Show appearance by Petraeus’s mistress earlier this year, which, for obvious reasons, has gone viral of late. Paula Broadwell appears strangely tense, frightened, and practically monosyllabic in her efforts to flog her book, which is—surprise!—an adulatory biography of David Petraeus. Of course many people show tension during TV appearances, but not a lot of authors. You practically have to shut down an entire electric grid to get an author with a new book off the air. Authors have so much to say.

As it turns out, what Broadwell really had to say was never aired on television. It was consigned to e-mails, lots of them—and these e-mails, sent from Broadwell’s joint account that she shared with her husband, were addressed to one Jill Kelley of Tampa, Florida, of whom Broadwell was clearly jealous—so jealous that she ordered Kelley to “stay away” from her lover. Kelley, who is a liaison to the Joint Special Operations Command, which specializes in counterterrorism, considered these e-mails threatening. The FBI, which investigated those e-mails, did not.

But what the FBI thought is not the point. The point is that Broadwell was so crazy that she made no attempt to hide authorship of those e-mails: she clearly felt she had the right to send, even brandish her demands to a woman she considered a rival. The point also is that she and the CIA chief set up Gmail accounts, the better to exchange sexually explicit narratives. And the point is that Petraeus, a man who knows exactly how dangerous it is to convey details of secret love and sex over the Internet, lost all judgment in choosing a lover who clearly never had any to begin with.

What is the moral of all this? There is none. In fact, consider this:

• Over the weekend the new BBC director general resigned: he received $715,000 for 54 days of work.

• Mark Thompson, the former BBC director general under whose aegis the BBC canceled an investigation into Savile’s sexual abuse, is now the new CEO of the New York Times Company. “It didn’t occur to me that there was a contemporary corporate interest to defend,” he said. “You could say it’s a lack of imagination.”

• Of all the entities directly affected by sex in all its forms: dumb sex, evil sex, crazy sex—the only one that has learned its lesson is Lockheed Martin. The company appointed a woman as its new CEO. I’m betting the farm she won’t hit on children, subordinates, or nutjobs during her tenure.

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