Travesty Of Thomas Drake Being Charged With Espionage Making Mainstream News

from the making-a-joke-of-government dept

We already covered the excellent New Yorker piece by Jane Meyer about the government's ridiculous prosecution of whistleblower Thomas Drake under the Espionage Act, and it appears that story is getting much more mainstream attention as well. The Economist picked up the story and over the weekend 60 Minutes did a big piece on it that basically reiterates everything in Mayer's piece. Drake blew the whistle on a ridiculous bit of mismanagement by the NSA, in which they paid billions to defense contractors, rather than using a better, cheaper (and more legal) solution built in-house. His "crime" wasn't revealing any classified info -- because he did not. It was that in keeping the records for the (official and legal) complaint he filed with the Inspector General's office, he kept certain records in his home that were designated as classified. The Economist's summary covers the ridiculousness of charging him over these documents:

Let's go through this trove of secrets. Three of the documents that could land Mr Drake in jail were copies of material he had submitted to the inspector-general in a complaint about a surveillance programme described by others as a "wasteful failure". The programme in question was abandoned in 2006 after eating up $1.2 billion. (Ms Mayer helpfully notes that the inspector general's website tells complainants to keep copies of their documents.) One of the other documents under scrutiny is a schedule of meetings marked "unclassified/for official use only". Prosecutors say the paper should've been secret and that Mr Drake should've known it should've been secret. The final document was declassified three months after Mr Drake's indictment.

And that's it. At worst, he mishandled some documents, but even that's in question. It seems abundantly clear that the prosecution of Drake is because he annoyed his bosses at the NSA and embarrassed them by getting press coverage for the fact that they became enamored with the spin from some defense contractors, leading them to waste taxpayer money. And for that he gets charged with espionage, even as President Obama continues to insist that he values whistleblowers within the government. The Thomas Drake affair is shaping up to be yet another example of an executive branch out of control when it comes to abusing the power of its position. This is a problem that all Americans should be worried about, as both major parties seem more than happy to abuse power while in office.

Filed Under: free speech, nsa, thomas drake, warrantless wiretapping, whistleblowing

The Federal Government's Vindictive Legal Assault On NSA Warrantless Wiretapping Whistleblowers

from the this-is-not-the-country-we-believe-in dept

A bunch of folks have been linking to Jane Mayer's absolute must-read of an article about the federal government's prosecution of Thomas Drake for supposedly violating the Espionage Act in telling a reporter about some bureaucratic problems with the NSA's warrantless wiretapping program (details of which had already been leaked by others). The article goes through the history of warrantless wiretapping, including how aggressive the NSA and the federal government has been with the program, and how it avoided pretty much any and all oversight. It also talks to Bill Binney, a long-time NSA employee, who created the basic algorithm that's used to record pretty much all electronic communication. While he had originally put in important safeguards to keep it from following conversations in the US without a warrant, apparently, such safeguards were removed:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the "little program" that he invented to track enemies outside the U.S., "got twisted," and was used for both foreign and domestic spying: "I should apologize to the American people. It's violated everyone's rights. It can be used to eavesdrop on the whole world."

The story has many more details not just on the program itself, but also on the attempts by a few to make it legal and on the NSA's and the White House's resistance (under both Bush and Obama) to actually bring the program into agreement with the law. But the worst part is the excessive aggressiveness with which the feds then tried to bring charges against the various whistleblowers, attempting to reinterpret the Espionage Act in a way that was never intended. The people involved brought up serious concerns over both government law-breaking and over the massively wasteful spending of US taxpayer money in the process. These are classic whistleblower issues -- and not issues of state security. And yet, the whole thing gets twisted, in a clearly vindictive way, to make it out as if national secrets were revealed.

Morton Halperin, of the Open Society Institute, says that the reduced charges make the prosecution even more outlandish: "If Drake is convicted, it means the Espionage Law is an Official Secrets Act." Because reporters often retain unauthorized defense documents, Drake's conviction would establish a legal precedent making it possible to prosecute journalists as spies. "It poses a grave threat to the mechanism by which we learn most of what the government does," Halperin says.

The Espionage Act has rarely been used to prosecute leakers and whistle-blowers. Drake’s case is only the fourth in which the act has been used to indict someone for mishandling classified material. "It was meant to deal with classic espionage, not publication," Stephen Vladeck, a law professor at American University who is an expert on the statute, says.

And this is why you can see that this particular vindictive and ridiculous prosecution is so important: because if the feds get a ruling in their favor, they can go after all sorts of others who publish classified info. That is a massive restriction on the freedom of the press that we thought was established under the First Amendment.

Tragically, the article suggests that President Obama -- who has insisted repeatedly that he's in favor of transparency and whistleblowing -- has a blindspot on this matter. In his mind, he's built up an artificial separation between whistleblowing that is good and that which he doesn't like. If he doesn't like it, it somehow puts national security at risk. Yet the details of the Drake case, in particular, suggest that this is not about national security at all, but it's a pure whistleblower situation. Drake's revelations may have embarrassed the feds, but that's not supposed to be illegal.

Filed Under: free speech, nsa, thomas drake, warrantless wiretapping, whistleblowing

Appeals Court Says It's Possible To Challenge Warrantless Wiretap Law Without Proving It Was Used On You

from the huge-news dept

Here's some big news. You may recall a few years ago that the courts more or less said that the ACLU had no standing to file a lawsuit over the government's warrantless wiretapping program, because they weren't the people being spied on. Of course, that left people in quite the catch-22 situation. The wiretapping was entirely secret, and no one could sue unless it was known that they were being wiretapped. So how could you possibly question the legality of the program? The only case that was able to move forward was the one where the government accidentally revealed it was wiretapping, but otherwise the wiretapping program has continued. In fact, to deal with this, Congress even passed a law that explicitly stated that warrantless wiretapping was okay (and also granting telcos retroactive immunity for helping out prior to the law being passed).

Of course, with the passage of the new law, the FISA Amendments Act, there was a new issue to sue over, and the ACLU and some others brought a new suit, challenging the specific law. The lower court, again, said that the ACLU had no standing, but the 2nd Circuit appeals court has now reversed that ruling and sent it back to the lower court, saying that the ACLU and the others have made a strong case that they should be able to challenge the constitutionality of the law:

plaintiffs have good reason to believe that their communications in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor – i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographical areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.” The plaintiffs’ assessment that these individuals are likely targets of [FISA Amendments Act] surveillance is reasonable, and the government has not disputed that assertion.

As the report linked above notes, it's expected that the US government will do its usual "state secrets!" claim to try to get away from having to actually defend how this law meets the requirements of the 4th Amendment. Hopefully the courts will actually stand up to the government for once on such a claim.

Filed Under: 4th amendment, appeal, warrantless wiretapping
Companies: aclu

Feds Appealing Ruling That Said Warrantless Wiretapping Was Illegal; Will This Backfire?

from the thought-they'd-let-it-drop dept

A year ago, a lot of folks were quite surprised when a court ruled that the federal government had violated wiretapping laws with its warrantless wiretapping campaign. The government had fought hard against the lawsuit at every turn, and went to ridiculous lengths to stall and even ignore the judge. The whole case revolved around the one situation in which the government revealed that it was wiretapping some people without the required warrant. Previous lawsuits over the program had been dropped, because without specific evidence from someone being spied on, no one actually had standing to sue. Yes, this is a bit Kafkaesque when you think about it. Basically, so long as the government keeps its illegal spying activity secret from those it's spying on, no one can take legal action to stop it.

However, in this one case, the government accidentally sent the proof to some lawyers, but then tried to pretend that the document was still "secret" and claimed "national security" reasons for why the proof could not be shown in court. The whole thing was yet another silly game of coverup. So it was big news last March when the government lost the case.

However, soon after that ruling, people started pointing out that the government might not appeal the case, because it could just "accept" the ruling, pay whatever fines, and then just go on doing what it was doing, since no one else could sue and there was nothing else to stop them. This thinking was given even more weight when the judge finally announced the awards to those who were spied on, and it amounted to pocket change.

So consider us surprised that the federal government has indicated it plans to appeal the ruling. It's entirely possible that it's only appealing on very specific and narrow grounds, but it does seem like an odd decision, and it makes me wonder if the government might not regret it if it ends up losing the appeal, and getting a more serious punishment.

Filed Under: legality, warrantless wiretapping

Why Do We Need Warrantless Wiretapping If Not A Single Wiretap Warrant Request Gets Rejected?

from the oversight? dept

While the government continues to defend its warrantless wiretapping program -- despite it being found illegal and prone to serious privacy violations -- the latest report on official wiretaps that did receive a warrant shows not only that they were way up in 2009, but that not a single request for a warrant to wiretap was turned down. Not a single one. Now, admittedly, these are different types of wiretaps: by the police, mostly for drug cases, rather than the feds for terrorism cases. But it does suggest that the judicial system is pretty open to approving wiretap requests, and still makes us wonder why the government keeps insisting that actually getting a warrant -- as is required by the law -- is too much to ask in many cases.

Filed Under: warrantless wiretapping, wiretaps

Court Says President Bush Violated Wiretapping Laws With Warrantless Wiretap

from the wow dept

In a huge ruling, a court has said that the US government violated wiretapping laws in eavesdropping on phone calls without a warrant.

If you haven't been following the fight over the legality of warrantless wiretapping, this case, involving lawyers working with the Al-Haramain Islamic Foundation, is extremely important. When it was revealed that the Bush administration was wiretapping phonecalls without a warrant, lawsuits were filed -- but the "problem" was that the parties (such as the ACLU) that filed the lawsuits didn't have "standing" because they had no evidence that they, personally, were impacted by the warrantless wiretapping. This created a ridiculous Catch-22 situation. As long as the government hid its illegal activities and never said who it spied on, it could spy on anyone illegally. No one could bring a lawsuit, since there was no proof that they had been impacted by the illegal spying.

Then the feds screwed up. They accidentally sent the evidence of wiretapping some lawyers for the Al-Haramain group to those lawyers. Suddenly there was evidence. But, of course, the government tried to cover it up. For a while it claimed that even though it had revealed that it had illegally spied on these lawyers, and everyone knew it, since those documents were classified, everyone had to pretend that it was still a secret and no one knew about it. This resulted in a series of positively ridiculous hoops that lawyers had to jump through to bring the case, without actually using the document.

Thankfully, even as the Obama administration continued to support the Bush's administration's position that this lawsuit should not move forward, the courts disagreed and allowed the case to move forward although the document in question wasn't allowed to be used.

However, the judge, who was clearly annoyed by the administration's stalling tactics, said that even without the document, there was enough evidence that the federal government violated wiretapping laws:

"Plaintiffs must, and have, put forward enough evidence to establish a prima facie case that they were subjected to warrantless electronic surveillance," U.S. District Judge Vaughn Walker ruled, in a landmark decision. Even without the classified document, the judge said he believed the lawyers "were subjected to unlawful electronic surveillance" (.pdf) in violation of the Foreign Terror Surveillance Act, which requires warrants in terror investigations.

Beyond that, the judge called the administration's method of dealing with the case as "argumentative acrobatics," and even suggested that those suing could ask for monetary damages.

This is a huge victory against illegal government surveillance. There is simply no excuse for the government to violate its own laws, especially when it comes to infringing on the privacy rights of American citizens. There is a well-established process for obtaining legal wiretap warrants. There is no excuse for going around that process, other than that the government knows it's doing something wrong. Thankfully, the judge recognized that in this case.

Filed Under: judgements, warrantless wiretapping

Judge Dismisses Lawsuit Over Warrantless Wiretapping, Appeal Planned

from the to-be-expected,-but... dept

This comes as no surprise, but is still somewhat disturbing. A lawsuit the EFF was involved in over the federal government's warrantless wiretapping program has been dismissed by the court because it "was not a 'particularized injury' but instead a 'generalized grievance.'" This same issue has been raised before. If the government illegally spies on people, how can you prove it? You can't go to court unless you prove that you were harmed by the action, but as long as the government keeps it secret then you can't know. That's why the one case where the gov't accidentally revealed some info is so important. But, still, in this other case, the EFF plans to appeal noting the ridiculousness of the situation:

"The alarming upshot of the court's decision is that so long as the government spies on all Americans, the courts have no power to review or halt such mass surveillance even when it is flatly illegal and unconstitutional," said EFF Senior Staff Attorney Kevin Bankston

Filed Under: legality, warrantless wiretapping

Bush Administration Was Afraid It Would Have To Admit Telcos Helped With Warrantless Wiretaps To Get Immunity

from the why-would-they-want-immunity-otherwise dept

With the EFF finally successful in getting the federal gov't to hand over some lobbying documents involved in the process of granting telcos total immunity in lawsuits over warrantless wiretapping, the press is starting to go through the documents. Wired digs in and finds that the Bush administration was worried it would have to admit that the telcos had actually broken the law in order to get immunity -- but were able to route around that by having the Attorney General "submit a certification to the district court that the carrier defendant either did not provide the assistance as alleged, or did so in connection with a counter-terrorism program authorized by the president and pursuant to written assurances of legality." In other words, by doing a "this" OR "that," they could claim some sort of plausible deniability for the gullible.

Of course, the whole thing is silly. Why would the telcos need immunity if they hadn't broken the law? The only reason to push for immunity was because they obviously had broken the law. The entire push for immunity was never really about protecting the telcos, but about protecting the federal government from having to admit that it clearly broke the law as stated concerning oversight of wiretaps.

The other interesting element in the Wired report is that the Bush administration was worried that future administrations would reverse the immunity -- something it doesn't seem to have to worry about considering that the Obama administration has happily continued to hold the same position on warrantless wiretaps. However, the administration was unable to get anything put in the bill that would prevent future administrations from changing the immunity -- so, perhaps there's still some hope.

Filed Under: bush administration, obama administration, telco immunity, telcos, warrantless wiretapping

Administration Finally Releasing Some Info On Telco Immunity Lobbying

from the quite-a-fight dept

After many attempts to block or delay the release of info on who lobbied the federal government last year for telco immunity in lawsuits involving the fed's warrantless wiretapping program, the government has finally agreed to hand over some of the information requested. Of course, since the administration had already won a longer delay, and only some of the info is being revealed, I'm guessing that there isn't much surprising in what's being released -- though it makes you wonder why the administration went to such lengths to hide it.

Filed Under: lobbying, obama, state secrets, warrantless wiretapping
Companies: eff

Obama Administration Uses 'State Secrets' Clause To Try To Block All Warrantless Wiretapping Cases

from the transparency-is-dead dept

Despite new rules from the Obama administration that are supposed to reduce the use of "state secrets" claims to avoid revealing certain information, the first use of such a claim out of the administration since change the rules is to (once again) try to stop lawsuits involving warrantless wiretapping efforts by the federal government that began under the Bush administration. Again, this is disappointing. It remains difficult for me to see how anyone can justify a warrantless wiretapping program. I have no problem with a wiretapping program that has judicial oversight, but how can anyone defend a system that had no oversight at all?

Filed Under: obama, state secrets, warrantless wiretapping