Columbia Journalism School Staff Warns Obama That Prosecuting Wikileaks Will 'Set A Dangerous Precedent'

from the heed-the-warning dept

While it's been unfortunate watching the traditional press attack Wikileaks for doing the job it refused to do itself, it's nice to see the staff of Columbia's journalism school (still considered one of the top journalism schools) come out and warn the Obama administration that prosecuting Wikileaks will set a dangerous precedent for freedom of the press, even for those who disagree with Wikileaks' methods:

While we hold varying opinions of Wikileaks' methods and decisions, we all believe that in publishing diplomatic cables Wikileaks is engaging in journalistic activity protected by the First Amendment. Any prosecution of Wikileaks' staff for receiving, possessing or publishing classified materials will set a dangerous precedent for reporters in any publication or medium, potentially chilling investigative journalism and other First Amendment-protected activity.

As a historical matter, government overreaction to publication of leaked material in the press has always been more damaging to American democracy than the leaks themselves.

The U.S. and the First Amendment continue to set a world standard for freedom of the press, encouraging journalists in many nations to take significant risks on behalf of transparency. Prosecution in the Wikileaks case would greatly damage American standing in free-press debates worldwide and would dishearten those journalists looking to this nation for inspiration.

Seems to more or less summarize the position we've taken over the last few weeks as well...

Filed Under: free speech, journalism, obama, professors, wikileaks
Companies: wikileaks

US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction

from the this-is-not-the-america-we-were-told-about dept

While there's been a ton of attention paid to Julian Assange's arrest and situation, much less attention has been paid to Bradley Manning, the Army Private who has been accused of being the source of many of Wikileaks' more recent leaks concerning the US government and military. It seemed like a reasonable question to ask, upon his arrest, whether or not he was simply whistleblowing or breaking the law. Certainly this is a question that is open for debate. What is pretty clear is that his intentions were absolutely to be a whistleblower.

In his internet chat with Adrian Lamo (the guy who turned him in), Manning made it clear that if he was trying to cause problems for the US or had malicious intentions, he could have sold the info to foreign governments. However, his reasoning for leaking the info was clear, saying he was hoping it would cause "worldwide discussion, debates and reform." He also noted that he was driven to do this after being involved in detaining Iraqis who had simply done a scholarly critique of the current government, which he believed went against basic free speech principles. Again, no matter what you believe about his specific actions, it's pretty clear his intent was to whistleblow. He was upset about what he felt were illegal activities and his goal was to get that information out and to create discussion leading to reform. That's the classic definition of whistleblowing.

I knew Manning had been arrested and was being held somewhere, but Glenn Greenwald is now covering how he is being tortured, despite the fact he has not been tried. He has been held in intensive solitary confinement, meaning he spends 23 hours of the day in total isolation. He has not even been given a pillow or sheets for his bed. As Greenwald highlights, there is widespread agreement that such prolonged solitary confinement is well beyond the standard level of torture, is forbidden in many modern civilizations, and leads to long term psychological issues for those who go through it.

And all this for a guy who has not even been convicted of anything.

Again: I recognize that some people believe that Manning is a "traitor" or some sort of "enemy." But even if that's the case, why should he not be put on trial for it, before he's put into solitary confinement? As Greenwald notes, "Manning has been a model detainee, without any episodes of violence or disciplinary problems." Solitary confinement is normally used as punishment for such outbreaks for those already convicted. Putting Manning in such conditions is a purely punitive attempt to torture him, without him even being convicted.

We've already covered just how bad the Defense Department is at protecting whistleblowers, but this goes way beyond any of that. The message being sent here is that, even if your intentions are to expose wrongdoing, the military may lock you up and torture you for months without end and with no due process. This is not what America is supposed to be about. We're not supposed to support torture. We're not supposed to ignore due process. We're supposed to encourage whistleblowing. Instead, we're locking it up and torturing it with no trial or conviction.

This is, frankly, horrifying.

I'm not convinced that Manning did the right thing in leaking all of those documents. Rather, I think there's a compelling argument that he went way too far in releasing way too much. But it's a point that can be debated. However, Manning has no such opportunity to debate it. Instead, he's being psychologically tortured with no method of even making his own case.

Filed Under: bradley manning, due process, solitary confinement, torture, whistleblowing, wikileaks
Companies: wikileaks

Congressional Research Service Analysts Complaining About Blocked Access To Wikileaks

from the can't-do-their-job dept

With the Library of Congress blocking access to Wikileaks over some misguided notion of what its legal responsibilities are, Copycense points us to a report about how librarians across the nation are now arguing over whether or not this was the right move, with many feeling that it was decidedly a bad move.

However, perhaps more interesting is the claim, in the middle of the article, that analysts at the Congressional Research Service are negatively impacted by this as well:

"Since the Congressional Research Service is a component of the Library, this means that CRS researchers will be unable to access or to cite the leaked materials in their research reports to Congress. Several current and former CRS analysts expressed perplexity and dismay about the move, and they said it could undermine the institution’s research activities."

"It's a difficult situation," one unidentified CRS analyst told Aftergood. "The information was released illegally, and it's not right for government agencies to be aiding and abetting this illegal dissemination. But the information is out there. Presumably, any Library of Congress researcher who wants to access the information that WikiLeaks illegally released will simply use their home computers or cell phones to do so. Will they be able to refer directly to the information in their writings for the Library? Apparently not, unless a secondary source, like a newspaper, happens to have already cited it."

In other words, as expected, all the block is really doing is making it more difficult for our government to do its job. That's what you get when your reaction to information like this getting out is to pretend it's not actually out.

Filed Under: blocks, congressional research service, wikileaks
Companies: wikileaks

Air Force In Super Denial Mode: Blocks Access To News Sites Covering Wikileaks

from the head-in-the-sand dept

And we thought the Library of Congress was in denial mode for blocking access to Wikileaks. It appears the Air Force has gone a step further into denial, as it's now blocking access to over 25 sites, including major news publications covering Wikileaks, such as the NY Times and The Guardian. Apparently, anyone on an Air Force computer who goes to the NY Times is being told: "ACCESS DENIED. Internet Usage is Logged & Monitored," Along with a notice warning people that anyone accessing an "unauthorized" site may be punished. Apparently none of the other branches of the military have the same thing in place, though we've heard from others in the military that Defense Department computers are blocking websites with "Wikileaks" in the title.

As Jeffrey Toobin notes in the CNN link above: "Our enemies can see the documents, but not those whom we trust to defend our country." How does that make sense?

And, of course, to make matters even more ridiculous, this is the Air Force... the supposed "cyber" expert branch of the military, these days. A little while back, the Defense Department announced that "cyber" issues were to be handled by the Air Force. Yet, they can't figure out that blocking their own access to mainstream media news sites is a dumb idea? These are the guys we've tapped to handle our country's "cyber defense"?

Filed Under: air force, blocks, guardian, ny times, wikileaks
Companies: wikileaks

Battling Wikileaks And The Art Of War

from the tactics-101 dept

Anyone who has studied tactics, for battle or otherwise, knows Sun Tzu's legendary work, The Art Of War. Or at least they should. In reviewing what the first chapter of that work teaches about the five factors a battling faction must consider when endeavoring to battle, you have to scratch your head and wonder if the United States government might need a refresher course. Take a look at some excerpts from this summary of the Giles translation:

"The art of war, then, is governed by five constant factors...These are The Moral Law, Heaven, Earth, The Commander, and the Method and discipline."

According to Sun Tzu, these five factors are everything in battle. He goes on to describe what he means by each of these.

The Moral Law is the ability for a ruler or government to have the backing of its people in its actions. While certainly not definitive, polls such as this one by the New York Daily News, or this one by the CBC, or this one by Reuters all seem to suggest that, at best, our nation and the world are somewhat split on supporting Wikileaks and, in most cases, there is a definite leaning to supporting them. This would suggest that the US government does not have the advantage of Sun Tzu's first factor.

The second factor probably applies less in this particular case. The factor of Heaven deals with things like night and day, temperature, times, and seasons. However, one might note that the chief advantages of this factor are discussed later by Sun Tzu, particularly in advantages of secrecy and obfuscation, utilizing the cover of darkness or the glare of light. Relating this to a digital analogy, one notices that Wikileaks specifically operates based on a culture of openness, rather than secrecy. They utilize the "light" of factual information and have undone our government's attempts at secrecy and obfuscation. If anyone can be declared to have an advantage in Sun Tzu's second factor, it has to be Wikileaks.

For the Earth factor, we must take into account distances, danger and security, open ground and narrow passes, and terrain considerations. This is where the government begins to really have trouble. As has been covered previously, our leaders seem to be having trouble understanding how the digital world works. In this case, distances are mostly meaningless. The only terrain is the internet and it seems that, given how much trouble our government has had in achieving their goal of cutting off Wikileaks, Assange and his crew seem far more at home here. For all the saber-rattling, you can still get to the site. For all their firepower and supposed security, Wikileaks is operational and has received what has been deemed the largest leak of classified data in history. Clearly, Wikileaks has the advantage here.

The Commander factor considers a leader's wisdom, aptitude, sincerity, courage, and ability to inspire. Assange, whether you love him or hate him (and I'm taking no opinion in this post), is clearly someone standing up for what he believes in and acting with sincerity, courage and aptitude thus far. While some US leaders have had some sanity about Wikileaks, we've also seen several examples in which it appears our leadership doesn't really know what they're doing in this particular case. How can we listen to people in power, who supposedly should understand this stuff, do things like demand the "return" of the cables and ask toinvestigate the NY Times for publishing widely distributed information and believe that we hold any advantage in the Commander factor?

The final factor, Method and Discipline, concerns the proper prosecution of the "war". In this case, the methods and tactics of our government have been so ineffectual as to be laughable. They're trying to cut off access: failed. They're trying to stifle the flow of information: failed. They're trying to twist the law to charge him: failed. Why can't they make headway? Because they're fighting a digital battle with physical-world tactics. And, harkening back to the Moral Law factor, you'll notice that the allies springing to Wikileaks' defense are also far more at home on the internet battleground than many in our government appear to be.

The problem is that Wikileaks is inevitable. A smart adversary would recognize that and do as Sun Tzu concludes in his first chapter:

"One should modify one's plans...If he is in superior strength, evade him. If your opponent is of choleric temper, irritate him. Pretend to be weak, so that he may grow arrogant...Attack him where he is unprepared, appear where you are not expected."

It reminds me of the advice Mike has previously suggested to media companies suffering pre-release leaks of their works. All this saber-rattling is doing is clowning America around the world, including our businesses. What if the government had instead come out, acknowledged what they'd done that was wrong, suggested that some of the things seen in the cables could be understood better in context, and just buried the whole thing? Why are they tactically playing directly into Assange's hands?

Filed Under: art of war, sun tzu, wikileaks

Iceland Considers Revoking Visa/MasterCard Licenses For Wikileaks Ban

from the what-legal-grounds dept

With Visa and MasterCard cutting off payments for Wikileaks, it appears that some Icelandic politicians are threatening to remove both companies' operating licenses in that country. Apparently, the Icelandic Parliamentary General Committee has asked both companies to explain what legal grounds they used for cutting off Wikileaks and, without evidence of legitimate reasons, both companies could lose their operating licenses. We had already noted that Icelandic firm DataCell, which was handling the payments for Wikileaks, was planning to sue both companies but it appears that the Icelandic government may help out. Of course, I would imagine that Visa and Mastercard both care about keeping the US government more happy than the Icelandic government...

Filed Under: iceland, wikileaks
Companies: datacell, mastercard, visa, wikileaks

Is The US Response To Wikileaks Really About Overhyping Online Threats To Pass New Laws?

from the the-cynical-view dept

Okay, this post is going to take the extreme cynical view, which I don't believe is true, but since it's being suggested, we might as well flesh it out. In my post about how the US government's response to Wikileaks has caused more harm than anything actually in the leaks so far, one of the commenters pointed to a Larry Lessig talk from a few years back, where he mentioned a conversation with Richard Clarke -- the former anti-terrorism government official, who, more recently, has been selling his book on "Cyberwar" -- where he said that the US government has had an "iPatriot Act" sitting in a drawer, ready to go at a moment's notice whenever there was "an i-9/11 event."

Except there's been no such event.

Yet, in the last year or so, we keep hearing about folks trying to sell the public on the idea that we're facing a "cyberwar," which is always stated without any proof. In fact, it seems that the only thing that the whole "cyberwar" concept has been good for is to (a) make money for government contractors and (b) to give the government a reason to take away more online privacy.

As we've seen, there have been rumors over the past few months that the feds have been working on new legislation that would require backdoors in all internet communications -- which sounds sort of like a version of that iPatriot Act. But, of course, in order to get people to actually accept that kind of thing, the government would need to convince people that it's really for their own safety... But that's a lot tougher without any evidence of a real cyberwar. So... along comes Wikileaks (and, to a lesser extent, Operation Payback), and voila, suddenly the press is bubbling on and on about how this is a cyberwar.

Now, when this new wiretapping law is put forth, the government can claim that it's designed to stop things like having classified cables leaked to enemies of the US -- even though it would have absolutely no impact on such things. Of course, if Wikileaks is a "cyberwar" then what the hell were the Pentagon Papers? A wood pulp war? Whistleblowing and leaking documents, online or off, is not a "war." While I don't doubt some in the US government will try to use this to their advantage, I still really doubt that this is the main reason for the current reaction. I'd chalk it up to pure incompetence first.

Filed Under: ipatriot act, laws, overhype, wikileaks
Companies: wikileaks

The US's Reaction To Wikileaks Is Doing A Lot More Harm Than The Leaks Themselves

from the destroying-any-moral-high-ground dept

It's becoming clear as the weeks go on, that the US government's massive overreaction to the latest Wikileaks releases is doing much more harm to the US's standings abroad than anything in the documents themselves. So far, most of the reaction from various politicians and diplomats concerning the actual content of the documents was that some of it might be slightly embarrassing, but there's been nothing all that surprising. Some foreign diplomats have joked back: "you should see what we say about you." And yet, we're still hearing claims that Julian Assange needs to be put on trial or (worse) executed, and other forms of "attacks" should be made on Wikileaks itself. All this has done has been to have foreign governments and diplomats start mocking the US for not living up to its claims of supporting freedom of the press and freedom of expression. This will make it much, much harder any time the US tries to stop any form of censorship in other countries, as they'll immediately point back at how many of our politicians flipped out over Wikileaks.

A bunch of folks sent over this blog post by Jack Goldsmith, which succinctly summarizes how backwards and damaging the US's response to Wikileaks has been. He questions if whoever leaked the diplomatic cables (he names Bradley Manning, but nothing has yet proven that he's the specific source, as far as I know) directly to the NY Times -- and the same info would likely have been published -- would the US government reacted in the same way?

Would our reaction to that have been more subdued than our reaction now to Assange? If so, why? If not, why is our reaction so subdued when the Times receives and publishes the information from Bradley through Assange the intermediary? Finally, in 2005-2006, the Times disclosed information about important but fragile government surveillance programs. There is no way to know, but I would bet that these disclosures were more harmful to national security than the wikileaks disclosures. There was outcry over the Times' surveillance disclosures, but nothing compared to the outcry over wikileaks. Why the difference? Because of quantity? Because Assange is not a U.S. citizen? Because he has a philosophy more menacing than "freedom of the press"? Because he is not a journalist? Because he has a bad motive?

He also notes that a reporter like Bob Woodward has published and revealed "many details about top secret programs, code names, documents and the like," obviously with direct help from top administration officials... and yet there's been no anger and threats about all of that. Among the many points he raises, one is particularly compelling: any attempt to actually charge Assange will backfire for a huge list of reasons:

I think trying to prosecute Assange under the Espionage Act would be a mistake. The prosecution could fail for any number of reasons (no legal violation, extradition impossible, First Amendment). Trying but failing to put Assange in jail is worse than not trying at all. And succeeding will harm First Amendment press protections, make a martyr of Assange, and invite further chaotic Internet attacks. The best thing to do -- I realize that this is politically impossible -- would be to ignore Assange and fix the secrecy system so this does not happen again.

Yet again, I'm left noticing the similarities between the US government's reaction to Wikileaks and the entertainment industry's reaction to file sharing. Each move that it made, including going legal, backfired in a big, bad way. It's really quite stunning to watch the US government make the same mistakes.

Filed Under: free speech, politics, reaction, wikileaks
Companies: wikileaks

Congressional Research Service Notes That There Are Serious Challenges To Charging Assange

from the ain't-so-easy dept

While a lot of the rhetoric from the US government -- concerning Wikileaks and Julian Assange and whether or not any law was violated -- has been overwrought and full of hyperbole, it appears that the Congressional Research Service (which tends to do a damn good job most of the time) has put out a nice simple report detailing the specific legal issues and laws that might apply here (pdf), and more or less summarizes that the US government would be breaking new ground in charging Assange, and may have difficulties in succeeding. While the report notes you could probably stretch the law to cover what Wikileaks did, it warns:

[The] statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications.....

The report does note that there has been at least one case it's aware of where a foreign national was charged under the Espionage Act for activities done outside of the US. But, it is quite rare, and beyond a single district court ruling saying this okay, the history and language of the Espionage Act suggest it was not designed for this purpose.

The report also delves into the hurdles to having Assange extradited to the US (something the US is apparently already discussing with the Swedish government), pointing out that no current US treaty "lists espionage as an extraditable offense."

But the biggest hurdle is noted towards the end of the report, in highlighting the rather serious Constitutional issues associated with attempting to try Assange for anything in the US, with a lot of focus on the ruling in the Pentagon Papers case:

Where First Amendment rights are implicated, it is the government's burden to show that its interest is sufficiently compelling to justify enforcement. Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States. Actual damage need not be proved, but potential damage must be more than merely speculative and incidental. On the other hand, the Court has stated that "state action to punish the publication of truthful information seldom can satisfy constitutional standards." And it has described the constitutional purpose behind the guarantee of press freedom as the protection of "the free discussion of governmental affairs."

[...]

[If] national security interests were not sufficient to outweigh the First Amendment principles implicated in the prior restraint of pure speech related to the public interest, as in the Pentagon Papers case, it is difficult to discern an obvious rationale for finding that punishing that same speech after it has already been disseminated nevertheless tilts the balance in favor of the government's interest in protecting sensitive information.

The publication of truthful information that is lawfully acquired enjoys considerable First Amendment protection. The Court has not resolved the question "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well." (The Pentagon Papers Court did not consider whether the newspapers' receipt of the classified document was in itself unlawful, although it appeared to accept that the documents had been unlawfully taken from the government by their source).

The Court has established that "routine newsgathering" is presumptively lawful acquisition, the fruits of which may be published without fear of government retribution.

There are definitely plenty of loopholes whereby the government can try to file charges against Assange, but in reading through the document it would likely be a pretty tough sell. You can read through the entire document after the jump.

Filed Under: espionage, extradition, julian assange, wikileaks
Companies: congressional research service, wikileaks

Is The CIA Hosting A Wikileaks Mirror? [Updated]

from the honeypot-or-not? dept

Whatis42? points us to an interesting post on Reddit, which is initially just highlighting a Google heatmap showing the locations from which people are searching for the term "wikileaks." Not surprisingly, the hottest spot on the heatmap is the Northern Virginia, Washington DC area. Shocking, I know.

But, perhaps more interesting is a comment on the thread, which notes that it appears at least one of the Wikileaks mirrors appears to be hosted by the CIA, or at the very least a company associated with the CIA using (for a time) a CIA netblock. The address, wikileaks.psytek.net no longer appears to be hosting anything (right now it just leads you to a standard Apache install page that says "It works!"). There's an interesting discussion in the Reddit comments over what this means -- ranging from everything to someone suggesting this is just a joke, to the "honeypot" question, to the one that seems most plausible to me: as a mirror that is quickly updated as Wikileaks puts up new documents, it allows the CIA to get access to what's being released as quickly as possible. Updated: And, as noted in the comments, it appears the answer is "no." Or, at least, if it is, it ain't this particular site.

Filed Under: cia, mirrors, wikileaks
Companies: cia, wikileaks