The American Bear

Sunshine/Lollipops

NSA SEXINT is the Abuse You’ve All Been Waiting For | Just Security

In the latest news report based on documents revealed by Edward Snowden, we’ve learned that the NSA creates profiles of porn viewing, online sexual activity and more from its vast database of Internet content and transactional data as part of a plan to harm the reputations of those whom the agency believes are radicalizing others through speeches promoting disfavored—but not necessarily violent—political views. The report— by Glenn Greenwald, Ryan Gallagher and Ryan Grim in the Huffington Post—shows how the NSA proposes to use personal information gleaned from electronic surveillance to blackmail, silence and otherwise marginalize people for advocating “radical” beliefs.

[…] The public and policy makers may hear “foreign intelligence information” and think it means data which helps identify and neutralize people who want to kill Americans, and not that which identifies and undermines peaceable people who merely hold radical, violent or even revolutionary ideas in the eyes of those currently in power.

Of course, intelligence agencies have used embarrassing information against people for their political beliefs in the past. The Federal Bureau of Investigation used recordings it gleaned from bugging Dr. Martin Luther King Jr.’s private quarters to attempt to blackmail him into silence, despite the fact that King unwaveringly supported non-violent means. It was his revolutionary idea of social equality for all races, and his anti-war beliefs, that made him dangerous.

As Bret Max Kaufman, Legal Fellow at the ACLU National Security Project writes:

King was not alone on the government’s long list of targets; he shared marquee billing with boxer Muhammed Ali, humorist Art Buchwald, author Norman Mailer, and even Senator Howard Baker. But the greater scandal was that — as the Church Committee revealed in 1976 — these big names appeared alongside more than one million other Americans, including half a million so-called “subversives.”

Julian Sanchez at the Cato Institute points out another historical examples of actual and threatened blackmail:

[FBI Director J. Edgar] Hoover’s right hand Cartha DeLoach proudly reported that the Bureau had learned of a truculent senator caught driving drunk with a “good looking broad.” The senator, DeLoach explained, was promptly made “aware that we had the information, and we never had trouble with him on appropriations since.”

These practices were disgusting, dangerous and abusive then, just as they are now. What’s new is that, in a mass surveillance ecosystem, the scale and scope on which this kind of activity can take place is unprecedented. Once it collects information about hundreds of millions of people in mass, “dossiers” of potentially embarrassing information—or blackmail quality secrets—dirt on anyone is just a few searches away. Intelligence operatives can secretly tar anyone, seemingly at will, since the NSA has the technological capacity, and no one has identified a law which would, if followed, intercede. These abilities, never mind the will to use them, are incompatible with individual freedom and democracy. [read]

From Our Archives: Muzzling the Press | The Progressive

Way back in 1918, The Progressive published an essay entitled “Muzzling of the Press,” criticizing the extraordinary new powers granted to the President under The Espionage Act of 1917.

The law allowed U.S. Presidents to prosecute leakers and suppress the publication of information on U.S. military and defense-related matters. Almost a century later, the Obama Administration invoked the Espionage Act when it prosecuted Bradley Manning and seized the phone records of A.P. reporters.

Here is what the magazine had to say about the Espionage Act when it was young:

“Muzzling of the Press” by Richard Barry, December 1918:

There exists in the United States today a control of the press and a suppression of vital news and public discussion which it Is difficult to parallel in English-speaking countries unless one goes back to the time of King James. As yet the eclipse is only partial, but unless effective attention is called to the fact, it is not inconceivable that it may become total.

This condition has developed by such gradual stages that unless the picture of it is fully painted, most people would be Inclined to doubt its existence. However, if one will take into consideration everything pertaining to this condition, including the operation of the Espionage Act, the supervision of the military censor, the orders of the War Industries Board, the apathy of many editors, and will realize that these are supplemented by the special efforts of countless Government agents, assisted by the Department of Justice, the Secret Service, and others, he will realize that the total effect is the practical abolition of the Constitutional guarantees respecting free speech. [continue]

[M]ore than a year ago, a federal judge ruled that the First Amendment already gave her the power to quash a subpoena for testimony by a Times journalist, James Risen, in the prosecution of a former Central Intelligence Agency official accused of leaking about an earlier effort to disrupt the Iranian nuclear program. The Obama administration has appealed. Leaks Inquiries Show How Wide a Net Is Cast

2 SCOTUS Judges in 1971: Espionage Act Doesn't Apply to the Press

FBI agent Reginald B. Reyes got to snoop through the email of Fox News correspondent James Rosen by persuading a judge that there is probable cause to believe he violated the Espionage Act of 1917, a World War I era law intended to stop state secrets from being passed to foreign governments.

To be more specific, he stands accused in this search warrant application of violating 18 U.S.C.§ 793 (d). Glenn Greenwald explains what that means in plain English. “The DOJ specifically argued that by encouraging his source to disclose classified information - something investigative journalists do every day - Rosen himself broke the law,” he writes. “Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment’s guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ - that a journalist can be guilty of crimes for ‘soliciting’ the disclosure of classified information - is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself.”

This is a radical legal theory.

As it happens, it has also been directly addressed and discredited by past Supreme Court justices. Concurring in the Pentagon Papers case, Justice William O. Douglas (and Hugo Black, who joined him) expressed his belief that Section 793 doesn’t apply to the press. He noted that the U.S. Congress considered and rejected an alternative version of Section 793 that reads as follows:

During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy.

“During the debates in the Senate,” Douglas notes, “the First Amendment was specifically cited, and that provision was defeated.”

He continues:

Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1(b) that: “Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.” Thus, Congress has been faithful to the command of the First Amendment in this area.

The bygone analysis of two Supreme Court Justices doesn’t end this debate, but it does provide another data-point that supports this conclusion: the Obama Justice Department is using a WWI-era espionage law to criminalize journalism in a way that its authors never intended.

[As] Harvard Law Professor Yochai Benkler noted recently in the New Republic, when the judge presiding over Manning’s prosecution asked military lawyers if they would ‘have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?,’ the prosecutor answered simply: ‘Yes, ma’am’. It has long been clear that this WikiLeaks-as-criminals theory could and would be used to criminalize establishment media outlets which reported on that which the US government wanted concealed. Now we know that the DOJ is doing exactly that: applying this theory to criminalize the acts of journalists who report on what the US government does in secret, even though there is no law that makes such reporting illegal and the First Amendment protects such conduct. Essentially accusing James Rosen of being an unindicted co-conspriator in these alleged crimes is a major escalation of the Obama DOJ’s already dangerous attacks on press freedom. … It is virtually impossible at this point to overstate the threat posed by the Obama DOJ to press freedoms.

Obama DOJ formally accuses journalist in leak case of committing crimes | Glenn Greenwald

… Back in 2006, Bush Attorney General Alberto Gonzales triggered a major controversy when he said that the New York Times could be prosecuted for having revealed the Top Secret information that the NSA was eavesdropping on the communications of Americans without warrants. That was at the same time that right-wing demagogues such Bill Bennett were calling for the prosecution of the NYT reporters who reported on the NSA program, as well as the Washington Post’s Dana Priest for having exposed the CIA black site network.

But despite those public threats, the Bush DOJ never went so far as to formally accuse journalists in court filings of committing crimes for reporting on classified information. Now the Obama DOJ has.

… If even the most protected journalists - those who work for the largest media outlets - are being targeted in this way, and are saying over and over that the Obama DOJ is preventing basic news gathering from taking place without fear, imagine the effect this all has on independent journalists who are much more vulnerable.

There is simply no defense for this behavior. Obama defenders such as Andrew Sullivan claim that this is all more complicated than media outrage suggests because of a necessary “trade-off” between press freedoms and security. So do Obama defenders believe that George Bush and Richard Nixon - who never prosecuted leakers like this or formally accused journalists of being criminals for reporting classified information - were excessively protective of press freedoms and insufficiently devoted to safeguarding secrecy? To ask that question is to mock it. Obama has gone so far beyond what every recent prior president has done in bolstering secrecy and criminalizing whistleblowing and leaks.

Greenwald is writing in response to this report from The Washington Post.

A rare peek into a Justice Department leak probe | The Washington Post

Another serious overreach and attack on press freedom from Obama and his DoJ:

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press.

At a time when President Obama’s administration is under renewed scrutiny for an unprecedented number of leak investigations, the Kim case provides a rare glimpse into the inner workings of one such probe.

Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist — and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said First Amendment lawyer Charles Tobin, who has represented the Associated Press, but not in the current case. “That’s a very dangerous road to go down.”

And here’s a first (and incredibly dangerous precedent) - accusing Rosen of committing a crime (co-conspirator) for basic reporting:

[…] Court documents show abundant evidence gathered from Kim’s office computer and phone records, but investigators said they needed to go a step further to build their case, seizing two days’ worth of Rosen’s personal e-mails — and all of his e-mail exchanges with Kim.

Privacy protections limit searching or seizing a reporter’s work, but not when there is evidence that the journalist broke the law against unauthorized leaks. A federal judge signed off on the search warrant — agreeing that there was probable cause that Rosen was a co-conspirator.

Machen’s office said in a statement that it is limited in commenting on an open case, but that the government “exhausted all reasonable non-media alternatives for collecting the evidence” before seeking a search warrant.

However, it remains an open question whether it’s ever illegal, given the First Amendment’s protection of press freedom, for a reporter to solicit information. No reporter, including Rosen, has been prosecuted for doing so.

Goodale: Pentagon Papers have lessons for AP case | Committee to Protect Journalists

[James] Goodale, who was general counsel for the Times during the Pentagon Papers and the architect of the paper’s legal defense—and is a member of CPJ’s board of directors—was quick to relate the current scandal to the precedent-setting case. “Notice [Holder] didn’t tell you why it was the worst national security leak, he didn’t tell you what [the damage was]…The lesson from the Pentagon Papers is: Don’t trust the government when it claims national security” concerns, Goodale said. He came to this conclusion in the process of researching his book, for which he poured over formerly classified documents from the case. “I wanted to give the government the benefit of the doubt, but about three quarters of the way through I realized it was totally nonsense, they never had a damn thing,” Goodale said. Four decades later, he noted, no one has ever shown damage to U.S. national security caused by publication of the papers. Reporters today may do well to consider this point as they debate what, if any, actual harm was incurred by the AP article that revealed a secret CIA operation and foiled terrorist plot in Yemen and is at the heart of the subpoena fracas.

While Goodale could not have anticipated the timely revelation of the secret AP subpoena, he clearly did have one current issue in mind when he decided to write his account: the ongoing saga of WikiLeaks and its embattled and polemic founder, Julian Assange. While acknowledging that many traditional journalists find Assange to be a baffling character, Goodale said, “If you’re angry at Assange for publishing the information, you should be mad at The New York Times too. Assange is [reporter] Neil Sheehan and The New York Times” in the Pentagon Papers case, he added. “Assange is the publisher, so there shouldn’t be any question we are dealing with a First Amendment issue. If we don’t recognize that in the digital age, we are in a lot of trouble.”

Of course, there are notable differences between Assange and the Times, whose own partnership in publishing the first set of leaked documents eventually publicly broke down. Assange received widespread scorn from the journalism community for WikiLeaks’ later disclosure of thousands of classified, unredacted U.S. diplomatic cables that potentially put people’s lives at risk. (CPJ, for example, documented at least one Ethiopian journalist who was forced to flee his country after he was cited in one of the cables.) Nonetheless, Goodale noted that the measure of whether publication of leaked material meets journalistic quality and ethical standards does not affect whether it qualifies for First Amendment protection. In other words, while WikiLeaks may not have taken care to redact or contextualize the data as the Times did, professional failures “do not [constitute] a legal distinction for the First Amendment.” Moreover, Goodale emphasized, journalists must be aware that the precedent of prosecuting WikiLeaks, essentially criminalizing the newsgathering process, would put the whole profession at risk.

Goodale has received a lot of press in recent days for stating that Barack Obama is on a path to becoming “worse for press freedom than [former U.S. President Richard] Nixon.” That’s the kind of headline that would make any president shudder, and in a sign the White House crisis-control team is on full alert, Obama unexpectedly called this week for a renewed push to pass the long-dormant federal shield law that would enshrine the reporter’s privilege to protect confidential sources. While many in the room with Goodale Thursday welcomed the move as an added protection for the press—most notably Judith Miller, who famously went to jail to uphold that principle—the bill comes with several controversial elements, including a national security exemption and the need to legally define who is a journalist in order to be effective.

Whatever happens with the legislation, Obama’s announcement was characteristic of the schizophrenic nature of the administration’s record on whistleblowers and leaks. The low level of tolerance for leaked information under Obama, and post 9-11 more generally, led Miller to question whether Goodale could have won the Pentagon Papers case in the 21st century. (After doing a numbers analysis of the current makeup of the Supreme Court, Goodale’s response was an emphatic “Yes.”)

As pointed out by CPJ Executive Director Joel Simon, the shield law and leak cases highlight that the Pentagon Papers case settled the issue of prior restraint (which has become largely irrelevant and unenforceable in the Internet era), but the debate on classified documents is unresolved. Decades after Goodale first articulated to corporate media lawyers the feasibility and importance of the First Amendment as a legal defense, he and his book are a handy and relevant reference for a new generation of attorneys tasked with protecting the press.

Whether or not this has been formulated in written policy, it seems clear that the way the Obama administration attempts to control the release of classified information is by trying to exert as much control over those who receive such information as those who disseminate it. The leaker and the recipient are treated as sharing equal responsibility — even though in reality both the power and the responsibility lies in the hands of those government officials who possess security clearances. The administration draws no distinction between the publication of leaked information and the leak itself — as though classified information is being leaked by the press, when in fact it is being leaked to the press. Paul Woodward

Justice Department Investigation of AP Part of Larger Pattern to Intimidate Sources and Reporters | Trevor Timm

As part of a new leak investigation, the Justice Department has secretly obtained the call records for twenty phone lines owned by the Assocated Press (AP), which could put sources for as many as one hundred reporters at risk. The AP called the move a “massive and unprecedented intrusion,” saying they “regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

We agree. It’s time to stop looking at all of these leak investigations and prosecutions as ancillary to press freedom; they are a direct attack on it. This should be an important wake-up call for journalists.

While this incident has brought the Justice Department’s crackdown on leakers to a new extreme, it’s important to remember, this storm has been brewing for a while now. In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists one way or another.

As part of this current investigation, we’ve known the FBI has been data mining government officials’ phone and email records for months, looking for links to journalists on a systematic scale. The Washington Post reported in January, the FBI is using new, “sophisticated software to identify names, key words and phrases embedded in e-mails and other communications, including text messages, which could lead them to suspects.”

According to the Post, “The FBI also looks at officials’ phone records — who called whom, when, for how long.” Anytime the FBI found a government official has contact with the unknown number of “particular” journalists, FBI agents were “confronting” officials with this information.

A similar leak investigation to the one that has engulfed the AP is aimed at New York Times sources for its investigation into secret US cyberattacks. The government refused to comment if the Justice Department has gone to similar extremes with the New York Times’ phone lines.

Regardless, as the New York Times reported on their front page in August of last year, these leak investigations are “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.” The Huffington Post recently interviewed several of the nation’s most prominent national security journalists, all of whom confirmed it’s a perilous time for journalists who are reporting on what the government considers secret.

The Justice Department does not deny this. When asked about the Obama administration’s crackdown on leakers last June, a senior Justice Department (DOJ) official told longtime national security reporter Shane Harris that the DOJ is “out for scalps.” Harris’ DOJ source also “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

And it may be about to get worse. [continue]

There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know. We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news. AP President and CEO Gary Pruitt (via themediafix)

(Source: blog.ap.org, via themediafix)

Will national security replace our individual rights? Will fear take priority over freedom? Will government censorship and propaganda triumph over personal choice and disclosure, use suppression repression? … If we starve liberty for the increasingly myopic sake of security, what will we have left to defend? What happens when the acid of secrecy and repression erode the very bedrock of the First Amendment? What happens when the sources of what is really happening in government increasingly choose not to speak to the press? What happens when we increasingly self-censor ourselves and the news is not fit to print because it invites undue government attention? How else will the press report the news when the sources dry up and the government becomes a primary purveyor of its own news? … When there is no transparency, openness or public accountability for the deeds of government including secret surveillance, torture, kill lists, the AUMF (the cover to justify our foreign policy), abandonment of due process, FOIA redactions and delays, prosecutorial overreach and misconduct only invites further abuse, secret rule and unchecked power by our government. … What is more pernicious in terms of freedom of the press and an informed citizenry when the very sources are threatened with life in prison for simply telling the truth about the government? NSA Whistleblower Thomas Drake on the US Secrecy State as Predator of the First Amendment

Court Finds FBI-Issued National Security Letters ‘Significantly Infringe Upon Speech’ | Kevin Gosztola

Nondisclosure or gag provisions of National Security Letters “significantly infringe upon speech regarding controversial government powers,” a district court in California ruled on March 15. The provisions were found to violate the First Amendment and “separation of powers principles.”

National Security Letters (NSLs) are issued by the Federal Bureau of Investigation (FBI). They are issued to telecommunication companies, financial institutions, credit companies, etc, without court approval and, as the American Civil Liberties Union (ACLU) describes, make it possible for the FBI to compile “vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of email addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website.”

The authority to do this was granted under the guise of protecting national security by Congress in the PATRIOT Act.

Even more totalitarian than what the FBI actually does with information it obtains without court approval is the fact that NSLs have had “gag” provisions that require recipients to be silent. The company being asked to provide records is supposed to not talk about NSL requests publicly. The person whose data is being mined by the FBI is supposed to be silent as well.

In a lawsuit brought by the Electronic Frontier Foundation (EFF) on behalf of an “unnamed telecommunications company,” a US district court in California ruled the gag provisions were unconstitutional. [++]

On Freedom of Speech and Censorship | Glenn Greenwald

I’m accused with some frequency of focusing my critiques on the US - the reason I do so is set forth here in reasoning I adopt in full - but vibrant free speech protection is a core liberty which the US, though very far from perfect, still safeguards better than most countries.

What has always driven repression of speech are the same universal human traits that are now flourishing as part of this latest effort: the tyrannical thirst for the power to silence ideas one dislikes, the self-regarding belief that one can apply objective principles of decency, “community” and Goodness to decide which modes of expression and which ideas should be barred, authoritarian trust in leaders, and – worst of all – the refusal to understand that endorsing repression of ideas leaves one with no principled grounds to object when one’s own ideas end up on the prohibited list.

Throughout history, it has often been the case that today’s “hate speech” becomes tomorrow’s enlightenment. Today’s “incitement” becomes tomorrow’s righteous subversion of unjust authority and flawed orthodoxies.

Add to all that the ignoble tendency to object to - or even recognize the existence of - repression only when it affects one directly (a dynamic I described here when writing about the inability of many passive, obedient western citizens to acknowledge the repression of their own governments because such citizens are never the ones targeted for repression), and it’s clear that the opposition to free expression is grounded in the worst of human attributes.

In sum, it takes a staggering amount of hubris to believe you’re in any position to decide which ideas are so objectively and permanently wrong that they should be barred. It takes an equally staggering amount of childishness to want some central authority to protect you from ideas that you find upsetting. And it takes extreme historical ignorance not to realize that endorsing the maintenance of a list of prohibited ideas and then empowering authorities to enforce it will inevitably lead to abusive applications of that power and, sooner or later, will likely result in the suppression of your own ideas as well.