Do we need a National Sieve Administration for all the leaks?

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By , June 28, 2013 9:50 am

So I’m sitting here, absolutely gobsmacked over the news that General James “Hoss” Cartwright, the former vice chairman of the Joint Chiefs of Staff,  is under investigation by the DOJ for allegedly leaking information to a New York Times reporter about the Stuxnet attack on Iran’s nuclear reactors.   Cartright would become the ninth person charged by the Obama administration under the Espionage Act.  That’s a lot of prosecutions considering Obama has been in office for four years and  there were only three people charged for all previous administrations, combined.  As Scott Shane and Charlie Savage report, however, not all of the increase in aggressive prosecution of leaks is Obama’s doing:

But a closer look reveals a surprising conclusion: the crackdown has nothing to do with any directive from the president, even though he is now promoting his record as a political asset.

Instead, it was unplanned, resulting from several leftover investigations from the Bush administration, a proliferation of e-mail and computer audit trails that increasingly can pinpoint reporters’ sources, bipartisan support in Congress for a tougher approach, and a push by the director of national intelligence in 2009 that sharpened the system for tracking disclosures.

But the prosecuted leaks are not the only leaks in our national security. Apart from whistleblowers like Tice and Binney who were not prosecuted, some   information was leaked by hackers who attacked HBGary Federal and later Stratfor. Those two hacks revealed a lot of information that was quite an embarrassment to the government and businesses. And when mainstream media talks about “the war on journalism,” they should include government’s attempts to cut WikiLeaks’ access to donations, what we learned from the HBGary Federal hack about efforts to discredit Glenn Greenwald, and what we might have learned from Project PM if the government hadn’t arrested Barrett Brown.  As I think about it now, Brown’s arrest may have been one of the government’s most effective steps to stop the exposure of embarrassing information because the project pretty much fell apart after his arrest.

So we need to use a wider lens when we talk about  ”leaks” that goes beyond the whistleblower/leaker nomenclature for government leakers and that also considers why we have seen an increasing rate of leaks and exposures in the past seven years.

In his interview, Edward Snowden talked about how he believed in Obama and how his subsequent sense of disappointment (and betrayal?) contributed to his decision to leak documents to the media.   And maybe it is as simple as that – that when we no longer trust our government to respect our rights – including a right to privacy – we will do what we have to to expose government surveillance and wrongdoing.  When we have met the enemy, and he is, what else is a moral or ethical person to do? When normal whistleblower channels only tip the government so that they can try to prevent the leak, when the President issues directives about “insider threats” that would have people spying on each other and reporting each other instead of reporting government wrongdoing, what options are left?

I believe the ultimate responsibility for the leaks falls back on government for (1) engaging in so much unnecessary privacy-busting surveillance, and (2) not being upfront and clear with the public about the programs.  It is the government’s secrecy and over-classification that has contributed, in large part, to the problem. The government’s secrecy, one could argue, has necessitated the leaks if democracy is to survive.  National security never, however, justifies trying to smear or destroy the reputation of journalists and publishers who are shining the light on government actions by publishing documents that have been leaked to them.

At this rate, we will need a National Sieve Administration to try to plug all the leaks, because although the government’s actions may have a chilling effect on some journalists or media outlets,  they will not be able to stop those whose conscience is stronger than fear of prosecution.

The tagline of this blog used to be this quote from Edward Abbey:  ”A patriot must always be ready to defend his country against his government.” By that definition, Edward Snowden and other leakers are patriots, not traitors. Instead of prosecuting them under the Espionage Act, we should be prosecuting government officials who perjure themselves in Congressional oversight hearings or who lie to the public about government invasions of our civil liberties and privacy.

In the meantime, a new unclassified but “for official use only” CIA memo designed to cut down on leaks from within the CIA was quickly leaked to the Associated Press on Wednesday.

 

 

Best. Smackdown. Ever.

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By , June 28, 2013 9:08 am

There’s a provision in U.S. law that says that if a student at a military preparatory school is injured at the school, they are then considered a “veteran due to the service-connected disability” even if they never go on to serve in the military or go on active duty.

At a congressional hearing on how small business owners may be using their status as “disabled veterans” to obtain contracts with the IRS, watch this exchange between Rep. Tammy Duckworth, who lost her legs and use of right arm while serving her country, and Braulio Castillo, a small business owner and IRS contractor who capitalized on the law because he injured his foot playing football while at West Point MPS and never served in the military after school.

If you don’t feel like standing and cheering her or crying by the time she’s done, let me know:

MSNBC has the story.

Going backwards

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By , June 26, 2013 7:38 am

Last night, John Lewis was on The Rachel Maddow Show discussing the Supreme Court ruling that overturned a key part of the Voting Rights Act of 1965.  He said, in part, that he was “sad to have to fight this fight all over again.” I think everyone who was involved in the civil rights movement in the 60s shares that sentiment. Registering black voters in the 60s was dangerous in a climate of fierce bigotry and segregation – as his experience showed, as Schwerner, Chaney, and Goodman’s murders showed us, and as my own work in a New York ghetto area taught me.   I still remember one particular day when a car screeched to a halt, and two men jumped out and dragged me and a friend into a car.  As the car sped away with us in it, I thought it was all over for us, but it turned out they were from a civil rights group and were trying to rescue us because he thought we were about to be attacked in that neighborhood.  A white girl and a black boy holding hands and setting out to register voters – we were idealistic back then, but the world we lived in wasn’t ready for that.   And in some parts of the country, black voters still face obstacles in registering to vote or exercising their right to vote.

What the Supreme Court has done with their ruling was damaging and irresponsible, to say the least. Our country hasn’t changed that much.

But voting rights isn’t the only thing we’ve gone backwards on. Yesterday’s filibuster by Texas Senator Wendy Davis over a draconian state anti-abortion law reminds us that we are having to fight the abortion rights fight all over again, too.

And so I sit here, shaking my head, remembering how we fought these fights for our children’s and grandchildren’s generation, only to see that their civil liberties are not safe now.

Do we – the 60s kids who took our passion and commitment to the streets and Washington – have the strength and energy to do it again? Will our children and grandchildren realize that they should not sit complacently by while these hard-won rights are eroded? Will they take to the streets in major outpourings of demands for civil rights? Or will they, in a digital age, think that tweeting and Facebook posts are enough activism? I hope they realize that tweets and statements on the Internet will not be enough and it’s time for them to stand up and take the fight, nonviolently, to the streets and the legislatures.

 

The gang that couldn’t extradite straight? Three questions, no answers one answer (Update 2)

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By , June 25, 2013 7:42 am

In an article in today’s Guardian by Jonathan Kalman, he quotes a commentary in China’s official state paper, the People’s Daily:

“In a sense, the United States has gone from a ‘model of human rights’ to ‘an eavesdropper on personal privacy’, the ‘manipulator’ of the centralised power over the international internet, and the mad ‘invader’ of other countries’ networks,” the People’s Daily said.

The White House said allowing Snowden to leave was “a deliberate choice by the government to release a fugitive despite a valid arrest warrant, and that decision unquestionably has a negative impact on the US-China relationship”.

Like many people, I’ve been following the developments in the case of whistleblower Edward Snowden. And sad to say, I think I actually agree with the People’s Daily in that sentiment. But apart from the major issues raised by Snowden’s blowing the whistle on surveillance programs that we, the people, were mostly in the dark about, there have been other issues and questions raised, including whether our government has been blaming Hong Kong and others for its own failure to follow the rule of law. I have three additional questions that haven’t been subjected to serious media scrutiny yet, including the White House’s claim that there was a “valid arrest warrant” submitted to Hong Kong.

What did the government provide to Hong Kong, and when?

Our government seemed pretty confident that Hong Kong would turn Snowden over to us. But as some news outlets  noted immediately, the complaint against Snowden, unsealed last Friday, included charges under 18 USC 793(d) and 18 USC 798(a). Had the government just charged him with theft, the issue of a political charge might not have become a potential obstacle. But there may have been a second obstacle, not reported in the news sources I read: Hong Kong’s extradition treaty with the U.S. requires the production of a valid arrest warrant (Article 8(3)), and the government may not have had one at the time they made the request of Hong Kong, although Article 10 does provide for a “provisional arrest warrant.” Is it possible that Hong Kong didn’t comply because the U.S. did not have its papers in order? Yes, there were political reasons for Hong Kong and China not to comply, but there may have also been a valid legal reason. (UPDATE 1: the papers reportedly used Snowden’s middle initial but did not spell out his full name – was this the reason??)

There is no docket for any case against Snowden that I can find in PACER as of this morning.

Did DOJ violate its own policy in charging Snowden?

As I noticed last week and others have also pointed out, the government’s policy is not to charge whistleblowers under 18 USC 641. From the Criminal Resource Manual:

Section 641 of Title 18 prohibits theft or receipt of stolen government information as well as theft of the documents, computer discs, etc., that contain the information. United States v. Fowler, 932 F.2d 306, 309-10 (4th Cir. 1991); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.), cert. denied, 444 U.S. 871 (1979); United States v. DiGilio 538 F.2d 972, 977-78 (3rd Cir. 1976), cert. denied sub nom. Lupo v. United States, 429 U.S. 1038 (1977). But see United States v. Tobias, 836 F.2d 449, 451 (9th Cir.), cert. denied, 485 U.S. 991 (1988). Nevertheless, for the reasons set forth below, the Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.

There are two reasons for the policy. First, it protects “whistle-blowers.” Thus, under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft. Second, the policy is designed to protect members of the press from the threat of being prosecuted for theft or receipt of stolen property when, motivated primarily by the interest in public dissemination thereof, they publish information owned by or under the custody of the government after they obtained such information by other than trespassory means.

The Criminal Division does not intend, in promulgating this policy, to prevent or discourage prosecutions under any other applicable statutes, such as those prohibiting the unauthorized dissemination or possession of government information, e.g., 18 U.S.C. §§ 793, 794, 1905, or 50 U.S.C. § 783. Instead, the Division’s purpose is to require that, in the circumstances enumerated above, such cases are prosecuted under these other applicable statutes rather than under 18 U.S.C. § 641.

Yet the criminal complaint against Snowden charges him under 18 USC 641. Why? What appears to be a  flagrant policy violation supports the notion that this is a political prosecution or persecution of a whistleblower. Couldn’t that persuade other countries that Snowden really has a legitimate argument in seeking asylum?  Shouldn’t it persuade those who seek to demonize Snowden and consciously buy the government’s characterization of him as a “leaker” instead of as a “whistleblower?”

Did the government revoke Snowden’s passport improperly?

The government’s own fact sheet on revocation of a citizen’s passport states:

Valid Federal or State Felony Arrest Warrant
If an offender already has a valid passport, Law Enforcement may specifically request that the State Department revoke a subject’s valid passport on the basis of an active felony arrest warrant, in the manner indicated below. (emphasis added by me)

Later in the fact sheet, it notes that “(sealed warrants must not be provided and cannot be acted upon).”

So we’re back to the question I posed earlier: is there a valid unsealed felony arrest warrant – and did the government have it in hand last week when it asked Hong Kong to extradite and when it asked the Department of State to revoke Snowden’s passport? If all they had was the complaint, State should seemingly have not revoked Snowden’s passport.  I’d welcome a statement from DOJ addressing these questions. (UPDATE: I found an answer to this one: In Haig v. Agee, the Supreme Court held that DOS could revoke a passport when there was a matter of national security.  So that’s one question/issue resolved for me.

The “Rule of Law”

Yesterday, Politico reported:

President Barack Obama said Monday that his administration is “following all the appropriate legal channels” on securing surveillance program leaker Edward Snowden, whom the White House says it believes is hiding out in Russia.

In brief remarks ahead of a White House meeting with business leaders about immigration, the president said that U.S. officials are working with involved countries to “make sure that rule of law is observed.” His comments came in response to a question about whether he’s spoken with Russian President Vladimir Putin about Snowden’s case.

So… is the rule of law really being observed? Without answers to the questions I posed, I don’t know for sure, but it’s certainly not clear that it is being followed, and a sealed FISC opinion finding some of the government’s programs unconstitutional suggests that it hasn’t always been followed. How much it is being followed now remains an open question in light of the lack of transparency our government has shown.

And for the record, yes, I see Snowden as a whistleblower, and am grateful to him for exposing what our government has kept us in the dark about.  Has he embarrassed the government with his disclosures? Undoubtedly. But that’s not necessarily a bad thing, if ultimately, the U.S. government recognizes that it cannot complain about others spying on us when it is engaged in the very same conduct.  And ultimately, maybe we’ll get the genuine debate we need about how much privacy we’re willing to sacrifice – with consent – in the name of security.

RIP Richie Havens (1941-2013)

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By , April 23, 2013 9:35 am

For children of the 60s, protest music was such an important part of our lives, whether it was the music of the civil rights movement or the music of the anti-war movement. Joan Baez, Phil Ochs, Richie Havens, Bob Dylan, Donovan, and others inspired us and unified those of us who were activists. For me personally, Ochs and Havens had an intensity to their anti-war music that resonated with me in a way that later, optimistic songs like John Lennon’s “Imagine” or “Give Peace a Chance” would never do.

I was fortunate enough to see many of these musicians perform at various times. Some of them, like Richie Havens, I first saw when they performed in small clubs in Greenwich Village. Others I saw in larger concerts, but their music left an indelible mark on me.  To this day, one of my friends remembers the night in 1968 that I dragged her to a concert where Phil Ochs and Richie Havens were performing together. I told her she was in the presence of musical greatness, and even she, who was pretty non-activist and non-political, came away understanding more.

A few years ago, I got to hear Richie Havens perform for what would be the last time I would get to hear him live. I wanted my husband to hear Havens sing Jackson Browne’s song, “Lives in the Balance.” Written in the 1980s, the song had powerful lyrics, but I never liked Browne’s performance of it, even though I’ve always liked him as a musician.

“Lives in the Balance” is still valid today when we think about Syria, Bahrain, and even the U.S. where the rich and powerful get more rich and powerful at the expense of the powerless.

Richie Havens’ death yesterday reduced me to tears.  And while most of the media is showing clips of his impromptu creation of “Freedom” at Woodstock in 1969, I am more likely to remember him for “Handsome Johnny,” his optimistic rendition of “Here Comes the Sun,” and   “Lives in the Balance:”

RIP Richie Havens. Your music touched and inspired my life for over four decades. You will be missed.

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