The American Bear

Sunshine/Lollipops

Julian Assange unlikely to face U.S. charges over publishing classified documents | The Washington Post

The Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists, according to U.S. officials.

The officials stressed that a formal decision has not been taken, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top secret military and diplomatic documents.

The Obama administration has charged government employees and contractors who leak classified information — such as former National Security Agency contractor Edward Snowden and former Army intelligence analyst Bradley Manning — with violations of the Espionage Act. But officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s the Guardian, according to the officials, who spoke on condition of anonymity to discuss internal deliberations.

WikiLeaks spokesman Kristinn Hrafnsson said last week that the anti-secrecy organization is skeptical “short of an open, official, formal confirmation that the U.S. government is not going to prosecute WikiLeaks.” Justice Department officials said it is unclear whether there will be a formal announcement should the grand jury investigation be formally closed.

“We have repeatedly asked the Department of Justice to tell us what the status of the investigation was with respect to Mr. Assange,” said Barry J. Pollack, a Washington attorney for Assange. “They have declined to do so. They have not informed us in any way that they are closing the investigation or have made a decision not to bring charges against Mr. Assange. While we would certainly welcome that development, it should not have taken the Department of Justice several years to come to the conclusion that it should not be investigating journalists for publishing truthful information.”

Two principles have formed the core of Wikileaks’ operative mores since its formation: uncensored information and a rigorous commitment to protect the anonymity of the whistleblowers who provide that information. Unsurprisingly, authoritarian governments, criminal corporate enterprises and their toadies just hate these two prongs of potential exposure – full disclosure of primary source material and protection of the sources of that information. Just ask Richard Nixon how he felt about Deep Throat. … For a more contemporary example, just ask the censorship-happy Obama administration, which is increasingly being viewed as the single most hostile government to whistleblowers and freedom of the press in the history of history, at least among our vaunted Western ‘democracies.’ Disney’s Ode to State Repression

Government Responsible for Perception WikiLeaks Aided Enemies, Argues Defense in Bradley Manning’s Trial | The Dissenter

Harvard Professor Yochai Benkler, a scholar who wrote a widely cited paper that examined how WikiLeaks fits into what he calls the networked fourth estate, took the stand to testify in the trial of Pfc. Bradley Manning. The military judge, Army Col. Denise Lind, determined he was qualified to testify as an expert on the networked fourth estate and to share his views on the nature of WikiLeaks and how it is a legitimate journalistic organization.

… Benkler delved into the history of WikiLeaks and how media coverage began to shift and alter the public’s perception of the organization. He also was asked if WikiLeaks was connected with any terrorist organizations. He said no.

He was asked if, prior to April 2010, the organization had connections with terrorist groups for the purpose of providing information to terrorist groups. Benkler said no.

Coombs asked Benkler about the ACIC report. He was allowed to give his expert opinion on the report and testify that he found no evidence in the report that enemies used the WikiLeaks website. He only found ”theoretical statements about how the enemy could come and use” it with a particular emphasis on “how the enemy could use it for propaganda to inject false information.”

He called the report “relatively mediocre” (something the judge objected to hearing in the courtroom). Coombs informed the judge the position of the defense was this is not intelligence.

The judge allowed Benkler to testify that the report was based on open source information. “Many of the key judgments were speculative and were not supported by evidence in the document itself. It included as a core statement both in executive summary and body an assertion that WikiLeaks does not engage in any authentication,” which was already known at the time to be “simply mistaken” because the organization was engaged in authentication.

Cpt. Joe Morrow, a military prosecutor for the government, asked Benkler about how he had characterized the government’s reaction to WikiLeaks as “sort of overwrought.” Benkler replied that overwrought was the term that then-Secretary of Defense Robert Gates had used and he “thought it was a remarkably well-placed assessment.”

Benkler added, when asked, that he had spent a “considerable amount of time reading about” WikiLeaks. These assertions that WikiLeaks editor-in-chief was a high-tech terrorist organization (by Vice President Joseph Biden) or that it was a terrorist organization was “incongruous with everything I had done in my research.”

Asked further questions by Morrow, Benkler continued saying he had cited Gates because it was “important to see even someone within the administration, who had responsibility of the area, could see how implausible the response was.” One “didn’t have to be an outsider.” One could “sit on the inside and see the response was implausible.”

Overall, Benkler’s presence on the witness stand directly addressed the government’s theory that, by giving information to WikiLeaks, Manning gave information to the enemy.” And, as Coombs said, it went to how the government has charged Manning and sought to portray WikiLeaks has an organization that would give information to the enemy and not a journalistic organization.

In fact, Benkler testified on the stand that in the ACIC report it had been recommended that, as a core tactic to undermine WikiLeaks, the government target whether WikiLeaks could be trusted or not as an organization. This was because the government concluded it would be hard to suppress the information that WikiLeaks published.

The government realized it needed to increase the fear or constraints on potential leakers. Part of that, Benkler suggested, was to treat Manning badly while he was in prison to deter future whistleblowers.

Essentially, the idea that WikiLeaks is not a legitimate journalistic organization or never was a legitimate journalistic organization committed to advancing the cause of transparency but rather an anti-American organization that had a website, where the enemy could go to for US government information, is purely government propaganda.

Assange: Snowden is en route to Ecuador and “in a safe place” for now | Ars Technica

… During the question-and-answer period, BBC reporter Paul Adams challenged Assange. Adams noted the “obvious irony” of trying to cooperate with the Chinese and Russian authorities: “Given their problematic relationship with the values of privacy and freedom of speech that you hold dear—and if Edwards Snowden ends up in Ecuador—doesn’t the same irony pertain? I wonder: are you simply involving those countries because they’re happy to stick one in the eye of the United States rather than upholding those values that you represent?”

Assange replied to start a quick back-and-forth:

“I simply do not see the irony. Mr. Snowden has revealed information about mass, unlawful spying which has affected every single one of us. The US administration has issued a series of bellicose, unilateral threats against him and against others who are attempting to support his rights. That is a very serious situation and any country that assists in upholding his rights must be applauded for doing so.”

“Even when they don’t uphold those rights for their own citizens?” Adams asked.

“That’s another matter. In these cases, we do not criticize people for seeking refugee status in the United States despite its use of torture, drone strikes and executive kill lists and so on. No one is suggesting that countries like Ecuador are engaged in those types of abuse.”

“The Obama administration hopes to erect a new interpretation of law which defines journalistic sources as spies, and that is not acceptable,” he continued. “If such a precedent is permitted, it will result in the complete destruction of national security journalism within the United States. Already, serious national security journalists are speaking about how their government sources are too scared to reveal government misconduct in a national security sphere. That’s an extremely serious matter. At the same as time the national security sector of the United States is increasing its share of the US tax burden and at the same time where unprecedented levels of criminality and abuse are being uncovered, it seeks to weaken the press, who is the only effective mechanism of bringing it to account.”

WikiLeaks Helps Snowden Leave Hong Kong | Kevin Gosztola

The whistleblower who revealed details on National Security Agency (NSA) surveillance and hacking, former NSA contractor Edward Snowden, has left Hong Kong with the help of WikiLeaks.

A statement put out indicates he “left Hong Kong legally. He is bound for a democratic nation via a safe route for the purposes of asylum, and is being escorted by diplomats and legal advisors from WikiLeaks.”

It also shows that Snowden “requested that WikiLeaks use its legal expertise and experience to secure his safety. Once Mr Snowden arrives at his final destination his request will be formally processed.”

Snowden was able to leave Hong Kong because, according to a press release by the Hong Kong government, “The documents provided by the US Government did not fully comply with the legal requirements under Hong Kong law.”

The Hong Kong government requested the US government “provide additional information” so Hong Kong’s Department of Justice could consider whether the US Government’s request” could “meet the relevant legal conditions,” but they were not confident that they had been given “sufficient information to process the request for a provisional warrant” to arrest him.

It is believed that Snowden, who has been charged by the US Justice Department with two violations of the Espionage Act and one count of theft of government property, will be going onward to Havana, Cuba, and then to Caracas, Venezuela.

Additionally, United Kingdom citizen, journalist and legal researcher, who WikiLeaks reports has been working with the WikiLeaks Legal Defense team, helped Snowden depart from Hong Kong. She is “accompanying” Snowden” in his passage to safety.”

“The WikiLeaks legal team and I are interested in preserving Mr Snowden’s rights and protecting him as a person,” former Spanish Judge Baltasar Garzon, legal director of Wikileaks and lawyer for Julian Assange stated. “What is being done to Mr. Snowden and to Mr. Julian Assange – for making or facilitating disclosures in the public interest – is an assault against the people.”

Interfax news agency in Russia is reporting that Snowden may stay in the Venezuelan embassy in Russia before moving on to Havana on Monday.

NSA Director Gen. Keith Alexander appeared on “This Week” with George Stephanopoulos on ABC. He did not speak specifically to the fact that Snowden had left Hong Kong but said Snowden is “clearly an individual who’s betrayed the trust and confidence we had in him. This is an individual who is not acting, in my opinion, with noble intent.”

The US Justice Department reacted to the news stating, “We have been informed by the Hong Kong authorities Mr Snowden has departed for a third country. We will continue to discuss this matter with Hong Kong and pursue relevant law enforcement cooperation with other countries where Mr. Snowden may be attempting to travel.”

It is unknown what Snowden’s final destination will be at this point, but WikiLeaks editor-in-chief Julian Assange had this to say to the Sydney Morning Herald, “Owing to WikiLeaks’ own circumstances, we have developed significant expertise in international asylum and extradition law, associated diplomacy and the practicalities in these matters.”

“I have great personal sympathy for Ed Snowden’s position. WikiLeaks absolutely supports his decision to blow the whistle on the mass surveillance of the world’s population by the US government.”

UPDATE – 12:20 PM EST There were apparently multiple diplomatic cars from Ecuador seen after Snowden landed in Moscow. Snowden is believed to have gotten into one of them.

UPDATE – 12:40 PM EST Ecuador Foreign Minister Ricardo Patino reports Ecuador has received an asylum request from Snowden.

The entire edifice of “secrecy,” especially with regard to national security, is a vicious lie from start to finish. Put it all out there. If full disclosure endangers those who work for the Death State, the problem — and the responsibility — is with those who choose to directly advance the Death State’s goals. It is decidedly not with the leaker, or with the journalists. In Praise of Mess, Chaos and Panic

In this world, murder is not the crime; unmasking and distributing evidence of it is. To insist that Manning’s disclosure put his military colleagues in harm’s way is a bit like a cheating husband claiming that his partner reading his diary, not the infidelity, is what is truly imperilling their marriage. Avoiding responsibility for action, one instead blames the information and informant who makes that action known. … [It’s] not just about Manning. It’s about a government, obsessed with secrecy, that has prosecuted more whistleblowers than all previous administrations combined. And it’s about wars in which the resistance to, and exposure of, crimes and abuses has been criminalised while the criminals and abusers go free. If Manning is an enemy of the state then so too is truth. Hypocrisy lies at the heart of the trial of Bradley Manning

[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.

The Death of Truth

LONDON—A tiny tip of the vast subterranean network of governmental and intelligence agencies from around the world dedicated to destroying WikiLeaks and arresting its founder, Julian Assange, appears outside the red-brick building on Hans Crescent Street that houses the Ecuadorean Embassy. Assange, the world’s best-known political refugee, has been in the embassy since he was offered sanctuary there last June. British police in black Kevlar vests are perched night and day on the steps leading up to the building, and others wait in the lobby directly in front of the embassy door. An officer stands on the corner of a side street facing the iconic department store Harrods, half a block away on Brompton Road. Another officer peers out the window of a neighboring building a few feet from Assange’s bedroom at the back of the embassy. Police sit round-the-clock in a communications van topped with an array of antennas that presumably captures all electronic forms of communication from Assange’s ground-floor suite.

The Metropolitan Police Service (MPS), or Scotland Yard, said the estimated cost of surrounding the Ecuadorean Embassy from June 19, 2012, when Assange entered the building, until Jan. 31, 2013, is the equivalent of $4.5 million.

Britain has rejected an Ecuadorean request that Assange be granted safe passage to an airport. He is in limbo. It is, he said, like living in a “space station.”

(Source: azspot)

The New York Times, The Guardian, El Pais, Le Monde and Der Spiegel giddily printed redacted copies of some of the WikiLeaks files and then promptly threw Assange and Manning to the sharks. It was not only morally repugnant, but also stunningly shortsighted. Do these news organizations believe that if the state shuts down organizations such as WikiLeaks and imprisons Manning and Assange, traditional news outlets will be left alone? Can’t they connect the dots between the prosecutions of government whistle-blowers under the Espionage Act, warrantless wiretapping, monitoring of communications and the persecution of Manning and Assange? Don’t they worry that when the state finishes with Manning, Assange and WikiLeaks, these atrophied news outlets will be next? Haven’t they realized that this is a war by a global corporate elite not against an organization or an individual but against the freedom of the press and democracy? The Death of Truth

Secrecy shrouds pretrial hearing in WikiLeaks case | MiamiHerald.com

Government secrecy reaches a new level this week in the court-martial of Army Pfc. Bradley Manning, an intelligence analyst who sent 700,000 classified U.S. documents to the WikiLeaks website.

A military judge, Col. Denise Lind, has ordered what prosecutors say is an unprecedented closed hearing Wednesday at Fort Meade to help her decide how much of Manning’s upcoming trial should be closed to protect national security.

An unidentified prosecution witness will testify during that closed hearing in a “dry run.” Defense attorneys say that could allow the judge to find ways to avoid closing the courtroom to the public during the presentation of classified evidence. Lind and attorneys for both sides have suggested there are a number of options to shield sensitive material, including closing parts of the trial; redacting documents; using written summaries as evidence to omit sensitive details; or even using code words for classified information.

The sensitive evidence includes Iraq and Afghanistan battlefield reports and State Department cables Manning has acknowledged leaking, along with official communications about those classified documents. The government says the leaks in 2009 and 2010 endangered lives and security. Manning’s lawyers contend there was little to no damage.

Lind’s decision to hold the practice run out of public view has drawn mixed reactions from national security and legal experts. Air Force Reserve Lt. Col. David Frakt, who teaches at the University of Pittsburgh law school, called it a “great idea” for minimizing disruptions such as those at U.S. military commissions’ cases involving terrorism detainees at Guantanamo Bay, Cuba. Frakt defended Guantanamo detainees Mohammed Jawad and Ali Hamza al Bahlul in 2008 and 2009.

“The judge wants the trial, when it happens, to go smoothly, and the last thing you want is some inadvertent disclosure,” Frakt said.

“What they don’t want to do is to have a yo-yo effect - let the public in, send the public out, let the press in, send the press out,” he said. “We have had that kind of circus atmosphere at Guantanamo, and it just looks very bad.”

But Jesselyn Radack, national security and human rights director of the Washington-based Government Accountability Project, said there has already been too much secrecy in the Manning case. Until February, more than 2 1/2 years after his arrest, the military refused to publicly release written court filings and rulings in the case. The military’s highest appeals court last month rejected the Center for Constitutional Rights’ petition seeking timely access to those records, ruling it lacked authority to consider the question.

Radack, who helped defend former National Security Agency official Thomas Drake against federal charges that included illegal possession of classified NSA documents, said the “dry run” sounds like a dress rehearsal for a secret trial. [++]

Is the Government Going to Claim Bradley Manning “Harmed” the US by Exposing Drone Details? | emptywheel

Last week’s Bradley Manning hearing significantly focused on how much the government could hide about its witnesses. A big part of the discussion pertained to how a Seal Team 6 member would testify to finding WikiLeaks material at Osama bin Laden’s compound. But the government also advanced its case to have a list of other government employees testify, at least partly, in secret, mostly in the “harm” phase of sentencing.

Here’s Alexa O’Brien’s transcription of that list (click through for the list). There are a number of interesting names on this list. But the one that popped out at me is Ambassador Stephen Seche.

You see, while Seche was Chargé d’Affaires in Syria mid-decade and more recently was in charge of Near Eastern affairs at State, he will almost certainly testify about how WikiLeaks disclosures of cables he wrote while Ambassador to Yemen “harmed” relations with that country.

Indeed, … Seche wrote one of the most newsworthy cables ever released by WikiLeaks, the January 4, 2010 cable recounting a January 2 meeting between then CentCom head David Petraeus and Yemeni President Ali Abdullah Saleh.

The cable is best known for this statement, laying out the agreement by which Saleh would lie about missile and drone strikes and pretend they were Yemen’s.

“We’ll continue saying the bombs are ours, not yours,” Saleh said, prompting Deputy Prime Minister Alimi to joke that he had just “lied” by telling Parliament that the bombs in Arhab, Abyan, and Shebwa were American-made but deployed by the ROYG.

But there are several other inflammatory details in this cable. There’s the nugget of our agreement to shift from using cruise missiles to drones.

Saleh did not have any objection, however, to General Petraeus’ proposal to move away from the use of cruise missiles and instead have U.S. fixed-wing bombers circle outside Yemeni territory, “out of sight,” and engage AQAP targets when actionable intelligence became available.

Potentially more damning still, there’s the passage that suggests Anwar al-Awlaki was an intended target of the December 24, 2009 attack (a day before the US believed he was an operational and at least a month before it had evidence he was). In addition, there’s Petraeus’ absolutely incorrect contention that only three civilians had died at al-Majala instead of the Bedouin clan we know died.

(S/NF) Saleh praised the December 17 and 24 strikes against AQAP but said that “mistakes were made” in the killing of civilians in Abyan. The General responded that the only civilians killed were the wife and two children of an AQAP operative at the site, prompting Saleh to plunge into a lengthy and confusing aside with Deputy Prime Minister Alimi and Minister of Defense Ali regarding the number of terrorists versus civilians killed in the strike. (Comment: Saleh’s conversation on the civilian casualties suggests he has not been well briefed by his advisors on the strike in Abyan, a site that the ROYG has been unable to access to determine with any certainty the level of collateral damage. End Comment.) AQAP leader Nassr al-Wahishi and extremist cleric Anwar al-Awlaki may still be alive, Saleh said, but the December strikes had already caused al-Qaeda operatives to turn themselves in to authorities and residents in affected areas to deny refuge to al-Qaeda. [ew emphasis]

At the very least, this passage demonstrates how shoddy our intelligence was both before and after we killed a bunch of civilians. But it may also support the case that the first time we tried to kill Awlaki, we didn’t believe he met the standards laid out in the memo that would ultimately authorize his killing: being a senior operational leader of AQAP involved in planning attacks against the US.

In other words, this cable, by itself, may include evidence of possible war and domestic crimes.

And yet the government wants to send Seche to a classified hearing to talk about the “harm” Bradley Manning caused.

While I think it possible that release of this particular cable made it harder for Djibouti to partner with us (recall we moved the drones targeting Awlaki to Saudi Arabia in 2011), the government at least maintains that Yemen continues to allow us to shoot drones in the country.

Yet it seems highly likely the government wants to claim disclosures of crimes like this amounted to “harm” of the US. [the punchline]

In arguing that Manning aided the enemy, the government’s case apparently will rest on the assertion that some WikiLeaks material made its way to a digital device found in the possession of Osama bin Laden. This is an ominously broad interpretation. By the government’s logic, the New York Times could be accused of aiding the enemy if Bin Laden possessed a copy of the newspaper that included the WikiLeaks material it published. The Los Angeles Times Editorial Board viciously defends PFC Bradley Manning against the government’s charge of “Aiding the enemy” (via auntieimperial)

Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’

Former Secretary of State Henry Kissinger, in a 1975 conversation with a U.S. ambassador and two diplomats. 

The quote was unearthed by Wikileaks, when they published the world’s largest searchable collection of U.S. diplomatic communications late last night. 

(h/t Salon.com)

(Source: officialssay)