After keeping Wall Street Journal reporter Evan Gershkovich jailed for more than a year on charges of espionage, Russian authorities released a statement yesterday alleging, according to the Journal, that Gershkovich “was gathering information about a defense contractor on behalf of the Central Intelligence Agency.” The Journal added, “In fact, Gershkovich was on a reporting assignment for the Journal.”
I have written extensively on the Gershkovich case:
https://www.fff.org/?s=Gershkovich
What I still cannot understand is why the Journal does not publicize Gershkovich’s side of the story. Was he simply arrested while doing nothing at all? If so, then why not publicize that?
Or was Gershkovich caught unwittingly possessing or trying to acquire secret information that purportedly jeopardized Russian “national security”? If I had to bet, I’d bet that this is what happened. And I’d also bet that it was a sting operation that was modeled on sting operations that are carried out by the U.S. government, including against Russian citizens. The case of Viktor Bout comes to mind.
If my hunch is correct, then it becomes easier to understand why Journal officials and U.S. officials, both of whom steadfastly deny that Gershkovich is a spy, would not want the circumstances surrounding his arrest to be publicized and would rather just quickly enter into a prisoner trade for his release. After all, if a Russian reporter was caught with top-secret records from a U.S. “defense” contractor here in the United States, even through entrapment, we all know that he would be subjected to the Gershkovich treatment right here in the United States.
Now, I’m sure that WSJ officials and U.S. officials would respond, “Oh, no, Jacob. A Russian citizen charged with violating our World War I-era Espionage Act would be entitled to due process of law guaranteed by the U.S. Constitution.” In fact, in its latest story about the Gershkovich case, the Journal writes, “At a trial, Gershkovich would enjoy little, if any, of the due process he would be afforded in the U.S. or other countries.”
What the Journal fails to acknowledge, however, is that the “due process” to which it refers depends on which judicial system an accused is shunted into — the judicial system set forth in the Constitution or the judicial system that the Pentagon and the CIA have established at their torture and prison camp in Guantanamo Bay, Cuba.
Navy guard at a Gitmo cell.
If the Pentagon and the CIA permit an accused to be prosecuted in the constitutional system, then, yes, the Journal is right. The accused receives the benefits of due process, speedy trial, right to counsel, right to confront witnesses, trial by jury, and other procedural protections guaranteed by the Bill of Rights and by centuries of legal jurisprudence.
On the other hand, if the Pentagon and the CIA decide to shunt an accused into their judicial system, then the accused gets the same type of system that Gershkovich is getting, maybe worse. That’s because the Pentagon-CIA system at Gitmo bears a remarkable resemblance to the Russian judicial system in which Gershkovich is being prosecuted.
At Guantanamo Bay, there is no right to a speedy trial, which is why they are able to keep people incarcerated without trial for life. There is no right of due process. There is no right to confront witnesses. Evidence acquired by torture is admissible, as is hearsay evidence. It’s okay to torture an accused into making a confession. And there is no right of trial by jury. Trial is by a kangaroo military tribunal composed of people who answer to the Pentagon. In fact, in the beginning, the Pentagon and the CIA were even saying that people in their system were not entitled to lawyers. Even Gershkovich has been permitted a lawyer.
What’s important to note about this process is that it’s the Pentagon and the CIA who make the determination as to which judicial system is going to be used. So, you could have two people charged with the exact same offense, one of whom is placed into the constitutional system and the other one shunted into the Pentagon/CIA system.
Now, one might say, “Jacob, the Pentagon-CIA system is limited to foreigners.” Well, that would include Russian reporters. Actually, though, that’s not true. American citizens are also subject to being shunted into the Gitmo system. It all depends on what the Pentagon and the CIA decide. Consider, for example, the case of Jose Padilla, who was charged with terrorism. Terrorism is a federal criminal offense. Under the Constitution, a person who is charged with terrorism is prosecuted in federal district court. When the Pentagon chose to subject Padilla, who was an American citizen, to its judicial system, a deferential federal court of appeals upheld the decision. The same thing could happen to any American.
When U.S. officials point an accusatory finger at Russia, they need to keep in mind that there are, at the same time, three fingers pointed back at them.