Former CIA Director May Face Charges Under Espionage Act, Showing How Ridiculous Espionage Act Is

from the will-it-happen? dept

In a surprising development, the New York Times reported late Friday that the FBI and Justice Department have recommended felony charges against ex-CIA director David Petraeus for leaking classified information to his former biographer and mistress Paula Broadwell. While the Times does not specify, the most likely law prosecutors would charge Petraeus under is the same as Edward Snowden and many other leakers: the 1917 Espionage Act.

It remains to be seen whether Petraeus will actually be indicted (given how high-ranking government officials so often escape punishment), and the decision now sits on Attorney General Eric Holder's desk. But this is a fascinating and important case for several reasons.

First, all of Petreaus's powerful D.C. friends and allies are about to be shocked to find out how seriously unjust the Espionage Act is—a fact that has been all too real for many low-level whistleblowers for years.

By all accounts, Petraeus's leak caused no damage to US national security. "So why is he being charged," his powerful friends will surely ask. Well, that does not matter under the Espionage Act. Even if your leak caused no national security damage at all, you can still be charged, and you can't argue otherwise as a defense at trial. If that sounds like it can't be true, ask former State Department official Stephen Kim, who is now serving a prison sentence for leaking to Fox News reporter James Rosen. The judge in his case ruled that prosecutors did not have to prove his leak harmed national security in order to be found guilty.

It doesn't matter what Petraeus's motive for leaking was either. While most felonies require mens rea (an intentional state of mind) for a crime to have occurred, under the Espionage Act this is not required. It doesn't matter that Petraeus is not an actual spy. It also doesn't matter if Petraeus leaked the information by accident, or whether he leaked it to better inform the public, or even whether he leaked it to stop a terrorist attack. It's still technically a crime, and his motive for leaking cannot be brought up at trial as a defense.

This may seem grossly unfair (and it is!), but remember, as prosecutors themselves apparently have been arguing in private about Petraeus's case: "lower-ranking officials had been prosecuted for far less." Under the Obama administration, more sources of reporters have been prosecuted under the Espionage Act than all other administrations combined, and many have been sentenced to jail for leaks that should have never risen to the level of a criminal indictment.

Ultimately, no one should be charged with espionage when they didn't commit espionage, but if prosecutors are going to use the heinous Espionage Act to charge leakers, they should at least do it fairly and across the board—no matter one's rank in the military or position in the government. So in one sense, this development is a welcome one.

For years, the Espionage Act prosecutions have only been for low-level officials, while the heads of federal agencies leak with impunity. For example, current CIA director John Brennan, former CIA director Leon Panetta, and former CIA general counsel John Rizzo are just three of many high-ranking government officials who have gotten off with little to no punishment despite the fact we know they've leaked information to the media that the government considers classified.

So hopefully Eric Holder does the right thing and indicts Petreaus like he has so many others with far fewer powerful connections. As Petraeus himself once said after CIA whistleblower John Kiriakou was convicted for leaking: "There are indeed consequences for those who believe they are above the laws." 

But if Petraeus does get indicted, perhaps we should start a new campaign: "Save David Petreaus! Repeal the Espionage Act!"

Republished from Freedom of the Press Foundation

Filed Under: cia, david petraeus, doj, espionage act, fbi, leaks

Obama Administration Has Put Media Leakers In Jail For Nearly 50 Times As Long As All Other Administrations In History

from the ouch dept

We've been among those who have pointed out that the "most transparent administration in history," the Obama administration, has prosecuted media leakers more than all other Presidents in history combined (eight prosecutions in this administration, compared to three total in all previous administrations). Gabe Rottman, over at the ACLU, decided to dig into another stat: how much time has the Obama administration been able to lock up media leakers in jail compared to all other administrations. The answer? The Obama administration has put folks who leaked info to the media in jail for 526 months as compared to 24 months for all other Presidents combined. Admittedly, 420 of those months went to Chelsea Manning, but even if you take that out, we're still talking 106 months for other leakers in cases from this one administration vs. 24 months for all other administrations.

It once again has to make you wonder why the Obama Administration is so focused on punishing anyone who leaks information to the media (even as it likes to "unofficially" leak information all the time). In the end, I keep going back to the speculation I heard from Daniel Ellsberg nearly four years ago (which is also where I first heard the stat about the number of Obama prosecutions against leakers -- at that time, it was just five prosecutions, rather than eight).

Ellsberg's theory was that while President Bush abused the power of the Presidency in the surveillance realm, he was actually proud of it. And while people were upset about secrets leaking, they didn't find it embarrassing. President Obama, on the other hand, came into office claiming to be different -- arguing against those kinds of abuses and promising changes and protections for civil rights. Instead, it appears that the process started under President Bush continued and expanded under President Obama and -- Ellsberg speculated years ago -- the President is somewhat embarrassed by this, leading him and his administration to react negatively to the leaks. Not because of any legitimate security concern, but to try to silence those who seek to reveal that the administration and the President have not come close to living up to their ideals but rather went the other way entirely.

Putting those who leaked info to the media in jail for 526 months -- nearly 44 years -- says a lot about the way the administration truly views whistleblowing, and it's not a saying anything good.

Filed Under: chelsea manning, espionage act, free speech, leak prosecutions, leaks, obama administration, reporting, transparency, whistleblowing

Whistleblowers Should Be Allowed A 'Public Accountability' Defense

from the great-ideas dept

We've written numerous times about how one of the major problems of the Espionage Act, which the Obama Administration has used more than twice as many times as all previous administrations combined, is terrible in part because there is no whistleblowing defense. In fact, any and all evidence of the public interest in revealing the information is inadmissible as evidence. Instead, the Act just focuses on whether or not information was released. For hopefully obvious reasons, this has tremendous (and dangerous) implications for free speech and whistleblowing (something President Obama claims to strongly support).

However, Harvard Law professor/Berkman Center guru, Yochai Benkler, has proposed creating a special Public Accountability defense for national security leakers and whistleblowers, which he outlines in a recently published paper. The proposal is well worth reading. As Benkler notes, there is evidence that the most recent round of leaks are important for democracy, because they are challenging the legitimacy of intelligence community and government policies.

If legitimacy crisis, rather than technological change, is the primary driver of the increase since 2002 of the particular class of leaks that is most important in a democracy, then the present prosecutorial deviation from a long tradition of using informal rather than criminal sanctions represents a substantial threat to democracy. In particular, it threatens public accountability for violations of human and civil rights, abuses of emergency powers, and unchecked expansion of the national security establishment itself. Seen in that light, aggressive prosecutions are merely a symptom of the self-same post-9/11 national security overreach that instigated the legitimacy crisis: they manifest the government’s need to shield its controversial actions from public scrutiny and debate.

The deep degree of secrecy and lack of accountability means that these leaks are incredibly important in actually making sure that these government efforts are, in fact, aligned with democratic values:

Secrecy insulates self-reinforcing internal organizational dynamics from external correction. In countering this tendency, not all leaks are of the same fabric. “War story”-type leaks that make an administration look good or are aimed to shape public opinion in favor of an already-adopted strategy or to manipulate support for one agency over another, trial balloons, and so forth, are legion. While these offer the public color and texture from inside the government and are valuable to the press, they do not offer a productive counterweight to internal systemic failures and errors. Some leaks, however, provide a critical mechanism for piercing the national security system’s echo-chamber, countering self-reinforcing information cascades, groupthink, and cognitive biases that necessarily pervade any closed communications system. It is this type of leak, which exposes and challenges core systemic behaviors, that has increased in this past decade, as it did in the early 1970s. These leaks are primarily driven by conscience, and demand accountability for systemic error, incompetence, or malfeasance. Their critical checking function derives from the fact that conscience is uncorrelated with well-behaved organizational processes. Like an electric fuse, accountability leaks, as we might call them, blow when the internal dynamics of the system reach the breaking point of an individual with knowledge, but without authority. They are therefore hard to predict, and function like surprise inspections that keep a system honest. By doing so, these leaks serve both democracy and security.

To deal with this, Benkler says that Congress should act and clearly create that "Public Accountability" defense.

Aggressive prosecution of national security whistleblowers and accountability leaks threatens to undermine the checking function that whistleblowing provides. To address this threat, I propose that Congress adopt a new Public Accountability Defense as a general criminal defense, on the model of the necessity defense. The defense would be available to individuals who violate a law on the reasonable belief that by doing so they will expose to public scrutiny substantial violations of law or substantial systemic error, incompetence, or malfeasance even where it falls short of formal illegality. It is most important to the leakers themselves, but would also be available to journalists and others who participate in disseminating the leaked information. It would provide a defense not only against specific criminal provisions protecting classified materials, but also against any charge brought for actions arising out of the same set of facts involved in the leak.

The full paper goes into much more details and is well worth the read. It makes it clear that this is not the only, or even the best, way to protect whistleblowers. In fact, more direct whistleblower protections could be quite valuable. But, in general, adding this public accountability defense, similar to a "necessity" defense, both makes sense and would be a useful tool for many people who have good reasons for what they're doing when it comes to leaking information.

Filed Under: chelsea manning, ed snowden, espionage act, leaks, public accountability, public accountability defense, whistleblowing, yochai benkler

John Kerry Should 'Man Up' And Admit He's Wrong About Snowden

from the nothing-wrong-with-admitting-you-were-wrong dept

In two separate TV interviews, Secretary of State John Kerry made some ridiculous arguments about how Ed Snowden should "man up" and come back to the US. This was in response to Snowden's claims that the only reason he's in Russia is the US State Department pulling his passport -- an argument that no one in the US government has ever denied. Given the chance to respond to this, Kerry effectively changed the subject, saying that Snowden can and should come home to face charges. Here was his statement on NBC's Today show:

QUESTION: Well, Mr. Secretary, what about it? Does he have a point? He’s basically saying but for the U.S. State Department revoking his passport, he wouldn’t be in Russia at all.

SECRETARY KERRY: Well, for a supposedly smart guy, that’s a pretty dumb answer, frankly. Look, I’m not going to get into the – who he was, what he was. Let me just say this: If Mr. Snowden wants to come back to the United States today, we’ll have him on a flight today. We’d be delighted for him to come back. And he should come back, and that’s what a patriot would do. A patriot would not run away and look for refuge in Russia or Cuba or some other country. A patriot would stand up in the United States and make his case to the American people. But he’s refused to do that to this date, at least.

The fact is that he can come home, but he’s a fugitive from justice, which is why he’s not being permitted to fly around the world. It’s that simple and he knows it.

QUESTION: Have you softened your stance at all with regard to his alleged conduct here? I noticed earlier this year you said that there were disclosures about the NSA made because of Snowden that you yourself were not aware of that constituted NSA overreach. Does that change the calculus at all for you?

SECRETARY KERRY: That’s entirely up to the justice system. Let him come back and make his case. The fact is that he should – if he cares so much about America and he believes in America, he should trust in the American system of justice. But to be hiding in Russia, an authoritarian country, and to have just admitted that he was really trying to get to Cuba, I mean, what does that tell you, really? I think he’s confused. I think it’s very sad.

But this is a man who has done great damage to his country, violated his oath which he took when he became an employee, and yes, in fact, stole an enormous amount of information and released it to the public, to the detriment of his country.

Then, in an interview with CBS he effectively said the same thing, including the ridiculous "man up" statement, which is perhaps even stronger than his silly "that's what a patriot would do" statement above:

QUESTION: Mr. Secretary, let me ask you about Edward Snowden. He has now given an interview in which he says he was trained by the United States as a spy. How damaging is this disclosure?

SECRETARY KERRY: Well, it’s not – it’s the same disclosure that everybody’s known. He very cleverly wraps it into his language about: I was a technical person; I didn’t go out there and work with humans, with other people; I wasn’t working and interacting with human beings. Basically, what he was doing is computer stuff, and that’s exactly what he says. So he wraps it into this larger language.

The bottom line is this is a man who has betrayed his country, who is sitting in Russia, an authoritarian country, where he has taken refuge. He should man up and come back to the United States if he has a complaint about what’s the matter with American surveillance, come back here and stand in our system of justice and make his case. But instead he is just sitting there taking potshots at his country, violating his oath that he took when he took on the job he took, and betraying, I think, the fundamental agreement that he entered into when he became an employee. And the fact is he has damaged his country very significantly in many, many ways. He has hurt operational security. He has told terrorists what they can now do to be able to avoid detection. And I find it sad and disgraceful.

I'm not even going to touch "what he was doing is computer stuff" quote, because that just kind of speaks for itself, doesn't it?

But of course, for all this "manly" (actually: sexist and misogynistic) talk, Secretary Kerry is being dishonest and disingenuous. As we've detailed a few times now, Snowden has been charged under the Espionage Act and, as such, he is not allowed to present a "public interest" or "whistleblowing" defense. His motive isn't even allowed to be used in the case at all. So all this talk about "making his case" is ridiculous. Snowden knows damn well that "our system of justice" on issues like this is inherently unfair and biased. Kevin Gosztola has highlighted examples of others who stayed and "made their case" under Espionage Act charges, showing how they were railroaded by a system that is not fair and does not allow them to actually present their case.

Similarly, as one of Snowden's legal advisors, Ben Wizner of the ACLU, points out, no matter what Kerry claims above, Snowden isn't dumb:

“He isn’t blind,” Wizner said. “Snowden saw what happened to other people who faced prosecution under the Espionage Act, and he saw the state of the law, which would not have allowed him to either to challenge the government’s improper withholding of this information in the first place, or to hold up the enormous public value of these disclosures. All that would have been irrelevant.”

So if we're going to use ridiculous misogynistic phrases like "man up," can we at least ask if Secretary Kerry will "man up" and admit that his claims about what Snowden would face back home were not even close to accurate? Or do real "men" like Secretary Kerry think it's appropriate to aggressively lie and mislead the American public? If so, perhaps it's time for someone to "woman up" instead. Though, as Glenn Greenwald points out, Kerry appears to be arguing that a female whistleblower in Snowden's shoes "wouldn't have the same obligation to return home." Or, perhaps (just perhaps) none of this has anything to do with manliness, and folks in the government could stop the macho aggressive bullshit and actually deal with the reality: Snowden blew the whistle on a program that all three branches of government have now admitted were illegal (and potentially unconstitutional). If someone has to "face the music," shouldn't it be the US government?

Filed Under: ed snowden, espionage act, john kerry, man up

Sen. Schumer Is Completely Wrong; Snowden Would Be Barred From Arguing His Case At Trial

from the you'd-think-congress-would-know-the-law dept

It seems every week a new member of Congress goes on a Sunday talk show and incorrectly states that if Edward Snowden came back to the United States to stand trial, he would be able to tell his side of the story to a jury and argue he is a whistleblower. This is factually not true, and it's time for members of the media to start pushing back at those who suggest it is.

This week it was Senator Chuck Schumer on ABC's "This Week." Here's what Schumer said, according to the New York Times:

Mr. Schumer said...[Snowden] should return to stand trial and face the consequences of his actions. Such a trial, the senator said, could be enlightening for the country.

...

He said it was unclear how much the broad metadata gleaned by the National Security Agency had helped the fight against terrorists; how much damage Mr. Snowden had, in fact, done to intelligence efforts; and precisely how the data were used.

“All of this could come out in a trial; it would be beneficial for the country to have the discussion,” Mr. Schumer said. “So, running away, being helped by Russia and China, is not in the tradition of a true civil disobedience practitioner.”

In reality, none of that information would be heard by a jury, if prior Espionage Act cases against leakers are any guide. Judges have ruled evidence of showing intent to inform the public, benefits of the leaks, and lack of damage to national security is inadmissible. We made this point just two weeks ago, but it seems worth repeating since it seems as though members of Congress opining on Snowden's legal options do not know how the law works. Here are how four of the most recent Espionage Act leak cases have turned out:

• John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.

• In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)
• In the Espionage Act case against NSA whistleblower Thomas Drake (which later fell apart), the government filed two separate motions to make sure the words "whistleblowing" or "overclassification" would never be uttered at trial.

• In Chelsea Manning's trial this past summer, Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

At this point, it's time for the media to start pushing back on government officials suggesting Snowden should tell his story to a jury, when caselaw says he would be barred from doing so. The New York Times is aware of this fact, as they mentioned it in another article published Sunday about the chances of Snowden receiving clemency. But in their story about Schumer's comments, they let his false statement go uncorrected.

It's also time for Congress to start debating the merits of using the Espionage Act on the sources of journalists. If Sen. Schumer thinks that Snowden should be able to tell all of the above information to a jury, we look forward to his amicus brief in a potential Snowden trial arguing that a whistleblower defense should be admissible. In the mean time, he and other members of Congress concerned about whistleblowers getting a fair trial should push for reform or repeal of the Espionage Act.

Republished from Freedom of the Press Foundation

Filed Under: chuck schumer, ed snowden, espionage act, whistleblowing

If Snowden Returned To US For Trial, All Whistleblower Evidence Would Likely Be Inadmissible

from the pernicious-law dept

There seems to be a new talking point from government officials since a federal judge ruled NSA surveillance is likely unconstitutional last week: if Edward Snowden thinks he's a whistleblower, he should come back and stand trial.

National Security Advisor Susan Rice said on 60 Minutes Sunday, “We believe he should come back, he should be sent back, and he should have his day in court.” Former CIA deputy director Mike Morell made similar statements this weekend, as did Rep. Mike Rogers (while also making outright false claims about Snowden at the same time). Even NSA reform advocate Sen. Mark Udall said, "He ought to stand on his own two feet. He ought to make his case. Come home, make the case that somehow there was a higher purpose here.”

These statements belie a fundamental misunderstanding about how Espionage Act prosecutions work.

If Edward Snowden comes back to the US to face trial, it is likely he will not be able to tell a jury why he did what he did, and what happened because of his actions. Contrary to common sense, there is no public interest exception to the Espionage Act. Prosecutors in recent cases have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant—and are therefore inadmissible in court.

This is why rarely, if ever, whistleblowers go to trial when they’re charged under the Espionage Act, and why the law—a relic from World War I—is so pernicious. John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.

In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)

The same scenario just played out in the Chelsea Manning trial this summer. Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

If the same holds true in Snowden’s case, the administration will be able to exclude almost all knowledge beneficial to his case from a jury until he’s already been found guilty of felonies that will have him facing decades, if not life, in jail.

This would mean Snowden could not be able to tell the jury that his intent was to inform the American public about the government’s secret interpretations of laws used to justify spying on millions of citizens without their knowledge, as opposed to selling secrets to hostile countries for their advantage.

If the prosecution had their way, Snowden would also not be able to explain to a jury that his leaks sparked more than two dozen bills in Congress, and half a dozen lawsuits, all designed to rein in unconstitutional surveillance. He wouldn’t be allowed to explain how his leaks caught an official lying to Congress, that they’ve led to a White House review panel recommending forty-six reforms for US intelligence agencies, or that they've led to an unprecedented review of government secrecy. He wouldn't be able to talk about the sea change in the public's perception of privacy since his leaks, or the fact that a majority of the public considers him a whistleblower.

He might not even be able to bring up the fact that a US judge ruled that surveillance he exposed was ruled to likely be unconstitutional.

The jury would also not be able to hear how there’s been no demonstrable harm to the United States since much of this information has been published. And if the prosecution was able to prove there was some harm to the US, Snowden wouldn’t be able to explain that the enormous public benefits of these disclosures far outweighed any perceived harm.

Every American should be outraged that leakers and whistleblowers are being prosecuted under an espionage statute without ever having to show they meant to harm the U.S. or that any harm actually occurred. Given there are two dozen bills calling for the reform of the NSA in the wake of Snowden's revelations, there should also be reform of the Espionage Act, so it cannot be used by the government as a sword to protect itself from accountability.

Cross posted with permission, from Freedom of the Press Foundation

Filed Under: ed snowden, espionage act, evidence, trial, whistleblowing

DOJ Finally Realizing That It Has Absolutely No Case Against Julian Assange

from the that-took-years-too-long dept

For years the Justice Department has been working with a grand jury to try to find something... anything... to charge Julian Assange with a crime for releasing the State Department cables apparently received from Chelsea Manning. The whole case against Manning was more of an attempt to find something with which to go after Assange. Nearly three years ago we wrote about how investigators kept trying to link Assange to Manning, because to prove there was a crime, they needed to show that Assange did a lot more than just receive and publish the documents. Investigators and Wikileaks haters kept insisting that Assange must have been the mastermind who encourage Manning to do the leak, but the evidence turned up nothing. The DOJ even offered Manning a plea deal if he would effectively lie and implicate Assange, saying they "conspired." Manning, despite being tortured refused to cooperate.

Three more years have passed since then and the DOJ seems to finally be coming to terms with the fact that Assange didn't break the law and there's nothing they can charge him with, even under their ridiculously broad interpretations of the Espionage Act. It seems that the DOJ has finally realized what many of us said from the very beginning: if you charge Assange, by default, you're saying that journalists can be charged with reporting on leaked documents:

“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 Guardian, according to the officials, who spoke on condition of anonymity to discuss internal deliberations.

Still, somewhere in the range of four years has been totally wasted on this effort, which was defined by its singular mission to get Assange at all costs. I'm almost surprised that enough people within the DOJ have realized that "NY Times problem," because we've seen more than a few defenders of the surveillance state twist themselves into all sorts of contortions to pretend that Wikileaks is different from the NY Times in a way that makes one operation journalistic and the other, not. So, while I'm disappointed that a ton of taxpayer money must have been spent on this years-long wild goose chase, I'm at least happy that they didn't feel the need to bring charges just to "show something."

Of course, nothing official has been stated -- and the DOJ might never actually make any public statement on this. The folks associated with Wikileaks are (understandably) skeptical about whether or not the US is really dropping the issue, and say that they won't trust the US government until an official statement is made (even then, I imagine they'd be fairly cautious). So, you can take some of this with whatever sized grain of salt you prefer. However, at least for now, it appears that the US will avoid trying to put on a show trial of Assange.

Filed Under: doj, espionage act, julian assange, wikileaks

Bradley Manning Gets Punished Twice Because He Accessed Information 'With A Computer'

from the hysterical-hackers dept

Update: The original EFF post on which the below post was initially based has been retracted. While there are still significant problems with both the CFAA and the Espionage Act, and, early on, the US did attempt to effectively double charge Manning, those problems were effectively reduced/minimized during the course of the trial, such that, by the end, he wasn't getting punished twice for the same thing. We regret if there was anything misleading posted here and retract the post as well.

We've talked plenty about the CFAA -- the Computer Fraud and Abuse Act -- which has a variety of significant problems and is in need of significant reform. The biggest issue is that this law, which was written back in the mid-1980s and doesn't match at all with today's internet, really just seems to add an extra layer of punishment on other crimes if they were done "on a computer." In fact, as the folks over at the EFF are noting, among the convictions against Bradley Manning, there was the first ever conviction under a particular section of the CFAA: section (a)(1), which more or less takes the Espionage Act and adds more punishment if the "espionage" you do is via a computer:

In fact, as the Judiciary Committee Report on the 1996 amendment to the CFAA makes clear, Congress explicitly based (a)(1) of the CFAA off 793(e) of the Espionage Act. “The bill would bring the protection for classified national defense or foreign relations information maintained on computers in line with our other espionage laws,” the report says. The original CFAA, written in 1984 was modeled on another part of the Espionage Act, section 794, which has never been used in leak cases. But Congress wanted it tailored after 793(e), a statute that in recent years has been used to prosecute a record number of leakers. (Compare the text here and here.)

The statutes are so similar, in fact, it’s hard to tell them apart even when reading the Judiciary Committee’s explanation about how they differ:

Although there is considerable overlap between 18 U.S.C. 793(e) and section 1030(a)(1), as amended by the NII Protection Act, the two statutes would not reach exactly the same conduct. Section 1030(a)(1) would target those persons who deliberately break into a computer to obtain properly classified Government secrets then try to peddle those secrets to others, including foreign governments. In other words, unlike existing espionage laws prohibiting the theft and peddling of Government secrets to foreign agents, section 1030(a)(1) would require proof that the individual knowingly used a computer without authority, or in excess of authority, for the purpose of obtaining classified information. In this sense then, it is the use of the computer which is being proscribed, not the unauthorized possession of, access to, or control over the classified information itself.

Did you get all that? The Judiciary Committee basically copy-pasted the Espionage Act into the CFAA, but forbid "use of the computer" rather than accessing the documents. So there you have it: they specifically wanted to make the isolated act of using a computer a separate crime.

The implications of this are somewhat ridiculous. It basically allows the government to charge someone twice for the same thing, if they used a computer as part of the process of accessing those documents. That's what's happened with Manning. In short: accessing the information is a crime under the Espionage Act and using a computer to do it is a second crime under the CFAA. Even if you think that leaking information to the press is a form of espionage (and we think even that's ridiculous), the idea that you get charged with a second felony just because a computer was used is absolutely ridiculous. It's just yet another example of the overcriminalized world we live in today -- especially when it comes to technology.

Filed Under: bradley manning, cfaa, computers, espionage act, overcriminalization

Bradley Manning Found Not Guilty Of Aiding The Enemy But Convicted On Other Charges

from the a-bit-of-good-news dept

So, the details aren't out yet, but the headline message is: Bradley Manning has been found "not guilty" of "aiding the enemy" but has been convicted on other charges, including violating the Espionage Act -- which seems a bit crazy, because what he was doing wasn't espionage in any sense of the word. The conviction on those charges is unfortunate, but not a huge surprise. All told, he was found guilty on 19 counts, including four that he'd already pled guilty to. The big question had really been all about the aiding the enemy claim. Either way, he's still facing a potential sentence of about 100 years in jail, though the next stage of this process will be over his sentencing. We'll have more later as the details come out.

Filed Under: aiding the enemy, bradley manning, convicted, espionage act

Architect Of Obama's War On Whistleblowers: 'It's Good To Hang An Admiral Once In A While As An Example'

from the governing-through-fear dept

Over the last few years, we've covered President Obama's war on whistleblowers, including the fact that he's used the Espionage Act against whistleblowers more than every other President combined, which is really quite incredible when you think about it. The NY Times has tried to dig around and figure out why the Obama administration is so harsh on whistleblowers and comes up with a few different sources. The first one, the Times reporter actually buries pretty far down in the story: Senator Dianne Feinstein from California:

At a closed hearing in December 2009, members of the Senate Select Committee on Intelligence, led by Dianne Feinstein, Democrat of California, scolded Mr. Holder, Mr. Blair and the F.B.I. director, Robert S. Mueller, saying they had not adequately protected national security secrets.

“A tipping point was reached in 2009,” said one knowledgeable Senate aide, who spoke on the condition of anonymity because he is not an official spokesman. “There was an official change of policy.”

Mr. Blair said, “We had to do 50 push-ups and promise to do better.”

Of course, as we've pointed out a few times, Feinstein, ridiculously, seems much more concerned about leaks than the government abuses and lawbreaking that those leaks reveal. That's quite incredible when you think about it.

The second source -- also underplayed by the article -- is officials in the intelligence community itself, who the President and his top advisors seem somewhat in awe of, and rarely seem willing to push back on what they have to say:

In tracing the origins of this effort, present and former government officials said the focus on leaks began at the administration’s highest levels and was driven by pressure from the intelligence agencies....

Basically, the long term intelligence insiders were sick of leaks -- such as the revealing of their warrantless wiretapping -- meaning that they actually have to answer to the public for overreaching into everyone's private lives. Given the combination of those intelligence agencies and Feinstein (who has always parroted whatever the intelligence agencies have to say), President Obama put his first Director of National Intelligence on the job of "solving" this issue of whistleblowers. And Blair apparently took to it with fervor, believing that the best thing to do would be to "make some examples" by hanging people:

Soon after President Obama appointed him director of national intelligence in 2009, Dennis C. Blair called for a tally of the number of government officials or employees who had been prosecuted for leaking national security secrets. He was dismayed by what he found.

In the previous four years, the record showed, 153 cases had been referred to the Justice Department. Not one had led to an indictment.

That scorecard “was pretty shocking to all of us,” Mr. Blair said. So in a series of phone calls and meetings, he and Attorney General Eric H. Holder Jr. fashioned a more aggressive strategy to punish anyone who leaked national security information that endangered intelligence-gathering methods and sources.

“My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others,” said Mr. Blair, who left the administration in 2010. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.”

While he's not literally talking about hanging someone, just the idea that they set out, purposefully, to "make examples" out of whistleblowers, is what lead to these kinds of massive overreaches and the chilling effects found today. The administration may think that's a good thing, because it keeps their secrets secret -- but it's also what's allowed massive abuses within the government to flourish with no one willing to blow the whistle.

The next culprit outlined (and mentioned above) is Attorney General Eric Holder, who teamed up with Blair to craft a program that was focused on going after anyone they could very aggressively:

Mr. Holder’s “attitude, the same as mine, was to speed up the process and make it more effective,” Mr. Blair said. “So, yes, that would mean more aggressive prosecution.”

The Justice Department imposed a tight deadline to decide whether to open criminal inquiries into leaks, shortening to just three weeks a review process that had often dragged on for months. Leaks considered unworthy of prosecution were marked for administrative inquiries. Underscoring the administration’s determination, Robert M. Bryant, Mr. Blair’s national counterintelligence executive, was put in charge of stanching leaks.

So, rather than get the whole story, understand what's going on, the DOJ has a three-week deadline before moving forward with criminal investigations on whistleblowing.

The final person to blame for all of this: the President himself. As noted above, he seems to accept everything the intelligence guys tell him without question. And that leads to absolutely moronic claims like the following:

The White House has kept a careful distance from the Justice Department prosecutions, but President Obama seemed unwavering in his support for them. When government transparency advocates told him in March 2011 that chasing whistle-blowers was sullying his record, the president disagreed, saying some disclosures had been very damaging to national security.

The Times reporter doesn't dig into this, but that meeting from March 2011 was first written about in Jane Mayer's amazing New Yorker article about the ridiculous prosecution against whistleblower Thomas Drake. That was a case where Drake legitimately blew the whistle on fraud and abuse within the NSA -- and it was only in searching for who was behind a different leak, that investigators found a completely pointless document on his home computer, including details of some meeting schedules. The document was marked unclassified, but prosecutors said that Drake should have known it was actually classified (even though the document was declassified months later).

That was clearly an extreme case of going after a whistleblower for being a whistleblower -- and yet when confronted on this, the President strongly pushed back against it and seemed to buy completely into the bogus claims his intelligence people were telling him about Drake. From the Mayer piece:

On March 28th, Obama held a meeting in the White House with five advocates for greater transparency in government. During the discussion, the President drew a sharp distinction between whistle-blowers who exclusively reveal wrongdoing and those who jeopardize national security. The importance of maintaining secrecy about the impending raid on Osama bin Laden’s compound was likely on Obama’s mind. The White House has been particularly bedevilled by the ongoing release of classified documents by WikiLeaks, the group led by Julian Assange. Last year, WikiLeaks began releasing a vast trove of sensitive government documents allegedly leaked by a U.S. soldier, Bradley Manning; the documents included references to a courier for bin Laden who had moved his family to Abbottabad—the town where bin Laden was hiding out. Manning has been charged with “aiding the enemy.”

Danielle Brian, the executive director of the Project on Government Oversight, attended the meeting, and said that Obama’s tone was generally supportive of transparency. But when the subject of national-security leaks came up, Brian said, “the President shifted in his seat and leaned forward. He said this may be where we have some differences. He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops.” Though Brian was impressed with Obama’s over-all stance on transparency, she felt that he might be misinformed about some of the current leak cases. She warned Obama that prosecuting whistle-blowers would undermine his legacy. Brian had been told by the White House to avoid any “ask”s on specific issues, but she told the President that, according to his own logic, Drake was exactly the kind of whistle-blower who deserved protection.

Of course, Brian was exactly right -- Thomas Drake was exactly the kind of whistleblower President Obama claims he wants more of: the kind who reveal government wrongdoing in the form of financial shenanigans. And yet, he never seemed to recognize or acknowledge that Drake never revealed anything that jeopardized national security. Given how the various intelligence bosses -- from Blair to Keith Alexander to James Clapper (and their various predecessors who are now making tons of money working for private defense contractors bilking billions from the government on these issues) -- seem to have decided that they need to "hang" a few leakers, President Obama's failure to recognize that they've been using his support for this to hang true whistleblowers, rather than anyone who's harmed national security, means he needs to take the blame for this massive failure within his own administration.

Brian was completely correct in her statements. These actions -- and the latest Snowden revelations of a President who seems to cave to the intelligence agencies at every chance -- really do a massive amount of harm to his legacy. But, tragically, the President appears to have a huge blindspot on that, not realizing how damning his war on whistleblowers has become.

Filed Under: barack obama, chilling effects, dennis blair, dianne feinstein, ed snowden, eric holder, espionage act, james clapper, keith alexander, leaks, whistleblowers