The American Bear

› 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.

› Worse Than The AP Phone Scandal | Ken Klippenstein

Before Attorney General Eric Holder oversaw a Justice Department that secretly seized AP journalists’ phone records, he was guilty of something even worse, and closely related to the AP scandal. He argued a little-known case before the Supreme Court called Holder v. Humanitarian Law Project, which found that speech (and other forms of nonviolent advocacy) could be construed as material support for terrorist organizations. The case involved a U.S.-based non-profit organization, the Humanitarian Law Project, which, according to its website, is “dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights laws and humanitarian law.” It also enjoys a consultive status at the UN; so, in other words, hardly a radical organization.

The Humanitarian Law Project advised groups designated by the Secretary of State as “terror organizations” to enter into peace negotiations and the UN process. Holder argued that such advice was the same as material support for terrorist organizations. Elena Kagan (at the time Obama’s Solicitor General appointee) formally assisted Holder in his argument. Holder and Kagan won the case. Shortly thereafter, Obama promoted her to Supreme Court Justice. Back when he was a Senator, Obama wrote, “There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency”. To the layperson, social justice and civil liberties would seem to be related; but Harvard-educated constitutional law scholars know better.

The High Court’s decision in favor of the Obama administration prompted criticism from President Jimmy Carter:

“We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.”

Noam Chomsky has described Holder v. Humanitarian Law as “the first major attack on freedom of speech in the United States since the notorious Smith Act back around 1940.” I emailed him, asking why things like Obama’s NDAA are getting so much more attention than far more harmful Holder v. Humanitarian Law. Chomsky wrote back, “I agree with you that this is far more important than NDAA, and have been arguing that for some time, with no effect.”

Just as the Obama administration stifled speech in Holder v. Humanitarian Law, they did the same thing when they targeted AP journalists. Quite likely, the journalist’s great sin was exposing the story of a CIA operation in Yemen. We don’t know why the administration needs to know the identity of the journalist responsible for the story, because they won’t say. However, Holder assures us that “This was a very serious—a very serious leak, and a very, very serious leak.”

Very well put, Holder.

Given Obama’s enthusiasm for prosecuting whistleblowers, one might be led to think that he’s opposed to leaks. Not so, as evidenced by Obama’s leak of his “kill list” to the Times for political gain—among other intentional leaks. The “kill list” represented a top-secret leak, unlike the lower security clearance level of so many leaks that the administration has prosecuted with alacrity. The effect of Obama’s leak prosecutions, coupled with his hypocritical employment of leaks, is to concentrate power in his own hands. (History shows how well it turns out when charismatic leaders are permitted to consolidate power.) As constitutional and civil rights litigator Glenn Greenwald’s careful analysis of the topic has argued,

“Their unprecedented attacks on whistleblowers ensures that only the White House but nobody else can disclose classified information to the public, which is another way of saying that they seek to seize the ultimate propaganda model whereby the president and he alone controls the flow of information to the public. That’s what their very selective and self-serving war on leaks achieves.”

By use of the term ‘propaganda model,’ Greenwald is probably referring to Chomsky and Herman’s landmark book, Manufacturing Consent. The book demonstrated empirically that the mainstream media are biased in the favor of elite interests, largely because the information it disseminates is subject to five different filters (things like corporate ownership). Obama is trying to introduce a sixth filter, namely himself. Simply put, Obama is attempting to acquire a monopoly on leaks—a chilling prospect. [++]

› Home Secretary strips two more people of British citizenship | The Bureau of Investigative Journalism

The Home Secretary has stripped at least two additional individuals of their British citizenship in recent months, the Bureau has learned.

In February, an investigation by the Bureau and published with the Independent revealed that Theresa May had signed deprivation of citizenship orders for 16 people between the 2010 election and November 2012, including five British-born individuals. That total has now risen to 18 cases. Under the Labour government, five people lost their UK nationality.

The two new cases were revealed by a recent Freedom of Information request made by the Bureau. One deprivation notice was issued late last year, taking the total number who lost their UK nationality in 2012 to six. A further case took place between January 1 and mid-March, when the Freedom of Information request was submitted.

The Home Secretary cannot remove citizenship if it will make an individual stateless, so the orders can only be made against dual-nationality individuals.

The Freedom of Information release listed the other nationality of the individuals who have had their UK passports revoked. This revealed that two new nations, Iran and Yemen, joined the list of alternate nationalities; the Bureau has established that Yemeni and Iranian dual-nationals lost their UK citizenship between June 2012 and March 2013.

However almost nothing else is known about the most recent deprivation cases. Of the six that took place in 2012, nothing at all is known about three; a further individual is known only as F2. The sole case in 2013 is similarly a mystery.

[…] Chris Woods, leader of the Bureau’s drone project, gave a presentation yesterday on the Bureau’s recent investigation into stripped citizenship at the all-party parliamentary group on drones, to an audience of MPs, peers and parliamentary staff.

He outlined the cases of Bilal al-Berjawi and Mohamed Sakr, childhood friends from London who were stripped of their UK citizenship and went on to die in two US drone strikes a month apart in Somalia.

It is unclear yet whether there is a direct connection between between their loss of citizenship and subsequent deaths, Woods pointed out. He also explored the official opaqueness that surrounds the removal of UK citizenship, and the difficulties many of those who lose their citizenship face in appealing the orders from abroad within the tight time limits.

› The major sea change in media discussions of Obama and civil liberties | Glenn Greenwald

[It] is remarkable how media reactions to civil liberties assaults are shaped almost entirely by who the victims are. For years, the Obama administration has been engaged in pervasive spying on American Muslim communities and dissident groups. It demanded a reform-free renewal of the Patriot Act and the FISA Amendments Act of 2008, both of which codify immense powers of warrantless eavesdropping, including ones that can be used against journalists. It has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined, threatened to criminalize WikiLeaks, and abused Bradley Manning to the point that a formal UN investigation denounced his treatment as “cruel and inhuman”.

But, with a few noble exceptions, most major media outlets said little about any of this, except in those cases when they supported it. It took a direct and blatant attack on them for them to really get worked up, denounce these assaults, and acknowledge this administration’s true character. That is redolent of how the general public reacted with rage over privacy invasions only when new TSA airport searches targeted not just Muslims but themselves: what they perceive as “regular Americans”. Or how former Democratic Rep. Jane Harman - once the most vocal defender of Bush’s vast warrantless eavesdropping programs - suddenly began sounding like a shrill and outraged privacy advocate once it was revealed that her own conversations with Aipac representatives were recorded by the government.

Leave to the side how morally grotesque it is to oppose rights assaults only when they affect you. The pragmatic point is that it is vital to oppose such assaults in the first instance no matter who is targeted because such assaults, when unopposed, become institutionalized. Once that happens, they are impossible to stop when - as inevitably occurs - they expand beyond the group originally targeted. We should have been seeing this type of media outrage over the last four years as the Obama administration targeted non-media groups with these kinds of abuses (to say nothing of the conduct of the Bush administration before that). It shouldn’t take an attack on media outlets for them to start caring this much.

[…] During the Bush years, it was conservatives who supported the Bush DOJ and Alberto Gonzales’ threats against the press on national security grounds; now, defenders of such threats to press freedoms are found almost exclusively from progressive circles (similarly, many of the most vicious and vocal attacks on WikiLeaks and Bradley Manning have come from progressives).

This is such an under-appreciated but crucial aspect of the Obama legacy. Recall back in 2008 that the CIA prepared a secret report (subsequently leaked to WikiLeaks) that presciently noted that the election of Barack Obama would be the most effective way to stem the tide of antiwar sentiment in western Europe, because it would put a pleasant, happy, progressive face on those wars and thus convert large numbers of Obama supporters from war opponents into war supporters. That, of course, is exactly what happened: not just in the realm of militarism but civil liberties and a whole variety of other issues. That has had the effect of transforming what were, just a few years ago, symbols of highly contentious right-wing radicalism into harmonious bipartisan consensus. That the most vocal defenders of this unprecedented government acquisition of journalists’ phone records comes from government-loyal progressives - reciting the standard slogans of National Security and Keeping Us Safe and The Terrorists - is a potent symbol indeed of this transformation. [++]

› Feds Won't Say if NSA Surveilled New York Terror Suspects | David Kravets

Federal authorities prosecuting brothers on allegations they plotted to blow up a high-profile target in New York City are refusing to confirm publicly whether they cracked the case by employing a style of warrantless electronic eavesdropping first introduced by President George W. Bush in the wake of 9/11.

The reason, attorneys affiliated with the defense suggest, is because such a concession would create the nation’s first eligible defendant to challenge the constitutionality of the surveillance tactics, which Congress codified into law in 2008 and then again in December.

The government has never publicly conceded it has used evidence in a criminal case obtained through the National Security Agency’s post-9/11 mass surveillance program. A single acknowledgment could open the floodgates to challenge the surveillance tactic, which Supreme Court Justice Stephen Breyer in February noted that “commonsense” (.pdf) tells us is being employed by federal investigators.

The terrorism case concerns brothers Raees Alam Qazi, 20, and Sheheryar Alam Qazi, 30. Among other things, prosecutors said the younger Pakistani-born brother surfed Al-Qaida internet sites to learn how to build a bomb [of course!]. The FBI recorded telephone calls linking him to a plot to blow up a New York landmark last year.

… [The Judge in the brothers’ case, U.S. Magistrate John] O’Sullivan, agreeing with a defense motion, ordered (.pdf) prosecutors last week to say whether the government first acquired evidence against the indicted brothers (.pdf) using the Bush-style surveillance, and then used that evidence to obtain the traditional warrant from the secret court.

… [T]he government has never publicly admitted in a prosecution that it employed warrantless surveillance under the FISA Amendments Act. Doing so likely would trigger legal challenges over whether the tactic is constitutional — and would threaten the Qazi brothers’ case and perhaps countless others.

“This could open the door again at the Supreme Court,” said Patrick Toomey, national security fellow at the American Civil Liberties Union.

The development comes nearly three months after a fractured Supreme Court halted a legal challenge to the warrantless surveillance law at issue in the brothers’ case.

A divided Supreme Court, ruling 5-4, set aside the challenge because the plaintiffs — journalists and human-rights groups — had no evidence they were surveilled under FISA Amendment Act authority [and therefore no standing to sue]. Justice Samuel Alito, writing for the majority, said the plaintiffs “merely speculate and make assumptions.”

But the court’s decision did not foreclose a constitutional challenge. The justices said that, if the government “intends to use” evidence obtained in such a manner, the defendant “may challenge the lawfulness of the acquisition.”

Justice Breyer, in dissent, said the case should have proceeded to trial. Of the spying, he wrote: “Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”

In court documents Thursday, Assistant U.S. Attorney Karen E. Gilbert urged O’Sullivan to set aside his order in the Qazi matter.

Gilbert said that, within weeks, the authorities will file a declaration from U.S. Attorney General Eric Holder that the information O’Sullivan has ordered disclosed is “sensitive national security information.” [of course!] (.pdf)

More on the referenced SCOTUS case, Clapper v. Amnesty International, here.

› Govt obtains wide AP phone records in probe

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

In a letter of protest sent to Attorney General Eric Holder on Monday, AP President and Chief Executive Officer Gary Pruitt said the government sought and obtained information far beyond anything that could be justified by any specific investigation. He demanded the return of the phone records and destruction of all copies.

“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,” Pruitt said.

The government would not say why it sought the records. Officials have previously said in public testimony that the U.S. attorney in Washington is conducting a criminal investigation into who may have provided information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al-Qaida plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.

In testimony in February, CIA Director John Brennan noted that the FBI had questioned him about whether he was AP’s source, which he denied. He called the release of the information to the media about the terror plot an “unauthorized and dangerous disclosure of classified information.”

Prosecutors have sought phone records from reporters before, but the seizure of records from such a wide array of AP offices, including general AP switchboards numbers and an office-wide shared fax line, is unusual.

In the letter notifying the AP, which was received Friday, the Justice Department offered no explanation for the seizure, according to Pruitt’s letter and attorneys for the AP. The records were presumably obtained from phone companies earlier this year although the government letter did not explain that. None of the information provided by the government to the AP suggested the actual phone conversations were monitored.

Among those whose phone numbers were obtained were five reporters and an editor who were involved in the May 7, 2012, story.

Jesus.

› FBI's Latest Proposal for a Wiretap-Ready Internet Should Be Trashed | Julian Sanchez

“The FBI’s plan would effectively make an entire category of emerging secure platforms — such as the encrypted voice app Silent Circle or the Dropbox-like cloud storage service Spider Oak — illegal overnight.”

The FBI has some strange ideas about how to “update” federal surveillance laws: They’re calling for legislation to penalize online services that provide users with too much security.

I’m not kidding. The proposal was revealed in The Washington Post last week — and a couple days ago, a front-page story in The New York Times reported the Obama administration is preparing to back it.

Why? Federal law enforcement agencies like the FBI have long feared their wiretap capabilities would begin “going dark” as criminals and terrorists — along with ordinary citizens — shift from telephone networks, which are required to be wiretap-ready under the 1994 Communications Assistance for Law Enforcement Act (CALEA), to the dizzying array of online communications platforms available today.

While it’s not yet clear how dire the going-dark scenario really is, the statutory “cure” proposed by the FBI — with fines starting at $25,000 a day for companies that aren’t wiretap capable — would surely be worse than the disease.

The FBI’s misguided proposal would impose costly burdens on thousands of companies (and threaten to entirely kill those whose business model centers on providing highly secure encrypted communications), while making cloud solutions less attractive to businesses and users. It would aid totalitarian governments eager to spy on their citizens while distorting business decisions about software design. Perhaps worst of all, it would treat millions of law-abiding users with legitimate security needs as presumed criminals — while doing little to hamper actual criminals.

Read more →

› Biometric Database of All Adult Americans Hidden in Immigration Reform | Threat Level

The immigration reform measure the Senate began debating yesterday would create a national biometric database of virtually every adult in the U.S., in what privacy groups fear could be the first step to a ubiquitous national identification system.

Buried in the more than 800 pages of the bipartisan legislation (.pdf) is language mandating the creation of the innocuously-named “photo tool,” a massive federal database administered by the Department of Homeland Security and containing names, ages, Social Security numbers and photographs of everyone in the country with a driver’s license or other state-issued photo ID.

Employers would be obliged to look up every new hire in the database to verify that they match their photo.

This piece of the Border Security, Economic Opportunity, and Immigration Modernization Act is aimed at curbing employment of undocumented immigrants. But privacy advocates fear the inevitable mission creep, ending with the proof of self being required at polling places, to rent a house, buy a gun, open a bank account, acquire credit, board a plane or even attend a sporting event or log on the internet. Think of it as a government version of Foursquare, with Big Brother cataloging every check-in. [++]

› Obama May Back F.B.I. to Wiretap Web Users

WASHINGTON — The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations.

The F.B.I. director, Robert S. Mueller III, has argued that the bureau’s ability to carry out court-approved eavesdropping on suspects is “going dark” as communications technology evolves, and since 2010 has pushed for a legal mandate requiring companies like Facebook and Google to build into their instant-messaging and other such systems a capacity to comply with wiretap orders.

(Source: thepeoplesrecord, via randomactsofchaos)

› Google’s Spymasters Are Now Worried About Your Secrets

A recent article in The Wall Street Journal by Google Executive Chairman Eric Schmidt, “The Dark Side of the Digital Revolution,” makes for very scary reading. It is not so much because of what he and co-author Jared Cohen, the director of Google Ideas, have to say about how dictators can use new information technology to suppress dissent; we know those guys are evil. What is truly frightening is that the techniques of the totalitarian state are the same ones pioneered by so-called democracies where commercial companies, like Google, have made a hash of the individual’s constitutionally guaranteed right to be secure in his or her private space.

The dictators, mired in more technologically primitive societies, didn’t develop the fearsome new implements of control of the National Security State. Google and other leaders in this field of massively mined and shared information did. As the authors concede and expand on in their new book:

“Despite the expense, everything a regime would need to build an incredibly intimidating digital police state—including software that facilitates data mining and real-time monitoring of citizens—is commercially available right now. … Companies that sell data-mining software, surveillance cameras and other products will flaunt their work with one government to attract new business. It’s the digital analog to arms sales. …”

The Google execs have inadvertently let us in on the world that they inhabit, where the data mining of individual preferences—for such interests as sex and politics—can be cross filed and tabulated by supercomputers to be exploited for commercial gain. The drive for ever more detailed information on individual behavior is on with a vengeance in the profit-driven world of data mining, as anyone who observes the ads that mysteriously pop up during Internet browsing sessions well knows. But that invasive technology is now undergoing a massive revolutionary upgrade provided by the collection of vast numbers of biometric markers.

“Don’t think the data being collected by autocracies is limited to Facebook posts or Twitter comments,” Schmidt and Cohen warn. “The most important data they will collect in the future is biometric information, which can be used to identify individuals through their unique physical and biological attributes. Fingerprints, photographs and DNA testing are all familiar biometric data types today. … With cloud computing, it takes just seconds to compare millions of faces. … By indexing our biometric signatures, some governments will try to track our every move and word, both physically and digitally.” [++]