DOJ Unconcerned About The Constitution, Obtained AP Reporters' Phone Records

from the freedom-of-the-press?-ha!-what's-that? dept

We've talked quite a bit about how the federal government has been pretty aggressively shattering any remnants of the 4th amendment, and while there are some parts of the 1st amendment that are still respected, our government doesn't always seem so keen on that one either. Apparently, they've decided to kill two birds with one stone recently, in obtaining a broad collection of phone records concerning Associated Press journalists, which is almost certainly in violation of the law. The AP only just found out about this on Friday, despite the data already being obtained, and covering more than 20 separate phone lines (including work, home and mobile phones) for multiple AP journalists -- and a period covering approximately two months in early 2012. The AP has sent a quite reasonably angry letter to Attorney General Holder about this collection.

There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.

That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.

The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen

The AP also (again, quite reasonably) notes that this appears to be a "serious interference with AP's constitutional rights to gather and report the news" and demand that the government destroy all copies of the data it received.

This really is an incredibly broad move by the government. Especially when it comes to reporters, the government has generally respected the right for reporters to keep their sources private, even if this administration has been known to threaten reporters if they won't reveal sources. In case you're wondering the law here is pretty clear about the limitations on getting this kind of info.

There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General's authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

I'm sure that Eric Holder will try to tapdance around this one as well, but the claims here are very serious. On the positive side, perhaps this will finally help the press wake up to the continued expansion of the federal government's surveillance operations and their general disdain for the constitution if it helps them go after whoever they want. The press likes to go nuts when some startup accidentally leaks some data or tracks what people are doing online, but routinely ignores how the government seems to feel entitled to any bit of private data about anyone, often without a warrant. Perhaps having the press have their records taken will wake some of them up to the fact that it impacts them as well (perhaps even more than others).

Filed Under: 1st amendment, 4th amendment, confidentiality, doj, eric holder, reporters, sources
Companies: associated press

Eric Holder Answers Question About Kim Dotcom Prosecution

from the blah-blah-blah dept

Attorney General Eric Holder was in New Zealand for a meeting of Attorneys General from the US, New Zealand, Canada, Australia and the UK. Radio New Zealand got to meet up with Holder and after asking him about the meeting proceeded to ask him about the Megaupload case (mp3), which the interviewer noted was of great interest to New Zealanders.

Holder, in his usual fashion, answers with generalities that don't actually answer the questions being asked. He gives his standard "intellectual property theft = bad!" speech:

Well I don't want to comment on a case that is pending. But I will say, more generally, that we are very concerned about the theft of intellectual property. It's something that we take very seriously, both in the United States, and I think our allies do as well. With regard that case, we've been cooperating with the New Zealand authorities. And I will just rely on the pleadings we have filed in court to talk about that.

First of all, we've pointed this out before, but you would think that the supreme "lawyer" for the government would know the damn law. There is no "intellectual property theft." That's a made up term by copyright maximalists. There is such a thing as copyright infringement, which is what he means. He should use the actual term. Otherwise it does make him look like a pawn of Hollywood.... Which leads right into the next question. The interviewer notes that Kim Dotcom has been saying that the case is all about the DOJ "heeding the beck and call of Hollywood moguls." Holder immediately responds:

Well, that's not true. I don't want to comment on that case other than to say that it was brought on the basis of the facts and the basis of the law and it's consistent with the enforcement priorities that this administration has had.

Well, yes, the enforcement priorities that have heavily been pushed for by Hollywood.

The interviewer notes the various screwups in the case, and Holder doesn't bite, saying that there's been good collaboration and they expect everything to turn out fine in the end. The next question is about how serious Holder is about pursuing extradition, and Holder makes it sound like no big deal:

We have made an extradition request. We have an existing treaty between the US and New Zealand that has been used a great many times throughout the years. And I don't see how any individual would not be subject to that treaty.

Uh.... that's a bullshit answer. Because the problem with the extradition issue is not whether or not Dotcom is subject to it, but whether or not the issues in the case are subject to it. The DOJ had to bolt on some questionable conspiracy claims to make this work, since mere copyright infringement is not an extraditable offense. Holder also responded to a question about New Zealand's attempt to spy more on citizens and residents by saying he doesn't see how that violates civil liberties. When questioned on that, he throws out some random statement about cooperation to stop terrorism, and again says that spying on people doesn't need to violate civil liberties.

Filed Under: copyright, copyright infringement, eric holder, extradition, kim dotcom, new zealand
Companies: megaupload

Eric Holder, The American Library Association And Wikipedia Are America's Worst Porn Enablers

from the thinking-of-the-children-is-tough-when-your-brain's-shut-off dept

As has been pointed out before, the Internet is for porn (when not being used for bogus lawsuits). Unfortunately, the Internet was thoroughly dissed by Morality in Media's "Dirty Dozen" list, which names and shames the 12 filthiest "enablers" of our nation's "porn pandemic."

The top name on the list is a bit of a surprise: Eric Holder. Certainly, Holder is less than beloved here at Techdirt. (Here's a few dozen reasons why.) But to date, we've never really found him to be some sort of Bob Guccione Jr., wandering the Dept. of Justice spreading the Good News about porn.

Here's why Holder is public enemy no. 1, according to Morality in Media.

Mr. Holder refuses to enforce existing federal obscenity laws against hardcore adult pornography, despite the fact that these laws have been upheld by the U.S. Supreme Court and effectively enforced by previous attorneys general.

Hmm. Maybe it's because he's got bigger fish to fry, what with Kim Dotcom still wandering around New Zealand shooting his mouth off (and opening new storage lockers), domestic spying and possible domestic drone attacks to keep under his hat, FOIA requests to ignore and the prosecution of Aaron Swartz to answer for.

Federal obscenity laws are randomly enforced. Previous attorneys general may have made an effort if enough noise surrounded the case, but by and large, porn continues unabated.

Here are the other 11 of the "Dirty Dozen:"

Comcast

Comcast gets named out front, but the dropdown text names every major cable/DSL provider, each of which provides premium and PPV porn.

Facebook

Considering Facebook won't even let you post a naked breast anywhere (even in breast cancer/breast feeding discussions), it's somewhat laughable to think Big Social is a porn fan's paradise. Morality in Media says:

The world’s most popular social networking site has become a top place to trade pornography, which we have reported on numerous occasions. According to reports, even child pornography is regularly shared on Facebook and women and children are trafficked on the site.

Oh, never mind. It's completely laughable. It's like Craiglist, only with a UI that won't make your eyes bleed! (Oddly enough, Human Traffic Central does not make the list.)

Google Play

Unlike Apple's walled garden of fully-clothed delights, Google's app store is rather laxly policed. As MiM points out, porn is everywhere ("in every category"). Android also enjoys a larger marketshare than IOS. COINCIDENCE?

LodgeNet

SpanktroVision.

Hilton Hotels

Porn pushers as well, apparently. Hooked up with SkyLodgeNet and timing its porn ads so they're the first thing you see when you turn it on... at least according to MiM's research.

Twitter

Twitter doesn't police tweets containing external links, so the service may as well just be the hype man outside an adult bookstore, pressing Tweets into the hands of every passerby.

Twitter has become the new ‘micro-porn’ service with tens of thousands of porn tweets an hour. Of course, there is no way to keep this from children.

Of course. Children are unregulated entities who raise themselves by foraging for food and following porn-y Twitter feeds. If only they had parents...

American Library Association

Oh, look. Big Lend is hooking your innocent little children up to porn IVs disguised as publicly accessible computers. And when it's not doing it directly, it's allowing your children to peek over the shoulder of that skeevy-looking dude browsing porn in public. For shame. If only the ALA would shut up about this "First Amendment" and keep its computers locked up tighter than an AOL portal with NetNanny running over the top.

Wikipedia

Useful tool or PORN LOCKER? You be the judge. (Or don't. It looks as though MiM has that position locked up...) Because Wikipedia won't proactively monitor content uploaded to Wikicommons, it is now awash in all kinds of pornography, ranging from the merely titillating to the hideously obscene to the kiddie. (Again, according to the "researchers" at Morality Central.)

Cosmo Magazine

I, for one, cannot be bothered to defend Cosmo's "good" name. It certainly can't be bothered to defend anyone outside its target demographic.

This staple of the supermarket checkout line may be as pornographic as Playboy magazine, but without the pictures.

So... just like the Playboy app currently being sold at iTunes?

This publication has steadily declined from a somewhat inspirational women’s magazine to a verbally pornographic “how-to” sex guide, further desensitizing young women and girls to the pornified culture around them.

One thing's for sure: "pornified" is a way underused term. (Also: porntacular, pornstravaganza, porned up, pornundated.)

Barnes & Noble

Well, good thing it's on its way out, then. MiM found nearly "two dozen" porn mags for sale at one store it randomly checked. (Give it another month or two, MiM! You may not be able to find the store at all! Smooches, Amazon.)

Dept. of Defense

O. M. G.

Servicemen "read" porn.

MiM says the DoD has a "porn problem" and acts like this is a new thing, instead of something that's been going for as long as young, warm-blooded males have been sent miles away from their loved ones for months at a time, often while being shot at frequently. Of course they had porn. And still do. Next, MiM will be adding the federal prison system to this list and acting shocked that incarcerated males would be in possession of pornography.

Morality in Media wants your help to "target, expose and shame" entities like the American Library Association, the Department of Defense and, um, Cosmo. It even gives you a pre-written petition to sign and, oddly enough, the opportunity to share this on Face[porn]book. But this whole list reeks of extrapolation and desperation, as if actual pornographers were nowhere to be found. Instead, we are given the opportunity to approach porn at an oblique angle and shame entities and services that have plenty of positive aspects. (Not included: Eric Holder, LodgeNet.) It takes a special sort of mindset to look at libraries and Wikipedia and see nothing but gaping pornholes.

Filed Under: eric holder, libraries, porn, porn enablers, wikipedia
Companies: american library association, morality in media, wikipedia

Aaron Swartz's Partner Accuses DOJ Of Lying, Seizing Evidence Without A Warrant & Withholding Exculpatory Evidence

from the good-prosecutorial-discretion? dept

Yesterday we wrote about Attorney General Eric Holder's ridiculous claims defending the prosecution of Aaron Swartz. We noted two key things that were ridiculous. First, Holder insisted that Swartz was only facing a few months in jail (he implied 5 months, tops) and scolded the media for claiming it was 35 years. As we noted it was the US Attorneys' own press release that trumpeted the 35 years. More importantly, the few months in prison was only if he agreed to plead guilty. If he continued to profess his innocence (something you would do if you believed you were innocent), the US Attorneys claimed they were going to push for seven years. The other ridiculous point that Holder made was that it was "good prosecutorial discretion" to offer just a few months in the plea bargain, because that somehow showed them recognizing the "context" of the crime.

In response, Swartz's girlfriend, Taren Stinebrickner-Kauffman has put out a very strong statement, slamming Holder's claims. Not only does she highlight the threat of seven years in prison, but she goes much further, to allege clear prosecutorial misconduct by the US Attorney's office, including seizing and holding evidence without a warrant, lying to the judge and then withholding exculpatory evidence from Swartz's lawyers. These are three really serious charges that I haven't seen much discussion about previously:

"Eric Holder and the Department of Justice are clearly trying to mislead the Senate and the public. Holder claims that Aaron was only facing months in prison while Heymann and Ortiz were actively pursuing a penalty of 7 years if the case went to trial. If you believe you're innocent, you should not be coerced into accepting a plea bargain that marks you as a felon for life, just because prosecutors want to boast about taking a scalp. The discrepancy between the plea deal and the amount of prison time prosecutors said they would pursue at trial violates the DOJ's own guidelines in this regard. Holder is trying to engage in revisionist history at the same time he claims that the strict sentences pursued by prosecutors were a 'good use of prosecutorial discretion.'

What's worse, this isn't just about sentencing. Steve Heymann engaged in serious prosecutorial misconduct on multiple occasions. Public documents show that he instructed the Secret Service to seize and hold evidence without a warrant, violating the Fourth Amendment. He then lied to the judge about that fact in written briefs. And he withheld exculpatory evidence from Aaron's lawyers for over a year, despite both a legal and ethical obligation to turn it over. If this constitutes appropriate behavior from the perspective of the Department of Justice, then we live in a police state.

The Department of Justice is not interested in admitting their errors, even when an out of control US Attorney's office has cost this country one of our best and brightest. The DOJ is only interested in covering their asses."

It's too bad that Holder wasn't quizzed about those specific points as well. The fact that he was able to mischaracterize the actions by the US Attorney's office in how they went after Swartz is really unfortunate.

Filed Under: aaron swartz, carmen ortiz, doj, eric holder, prosecutorial discretion, steve heymann, taren stinebrickner-kauffman

Holder: DOJ Used Discretion In Bullying Swartz, Press Lacked Discretion In Quoting Facts

from the convenient dept

Fresh off of explaining why the President can use drones to kill Americans on American soil, Attorney General Eric Holder apparently feels emboldened to say just about anything to justify ridiculous government actions. The latest? Defending the Aaron Swartz prosecution at a Congressional hearing called by Sen. John Cornyn, who has already expressed his concerns over the prosecution. As you might expect, Holder stuck with the official line that what the DOJ did in the Swartz case was perfectly reasonable. The key to his argument, as we've been hearing from others who defended the government's actions: the DOJ never intended to put Swartz in jail for 35 years. Also, apparently it was unfair of the media to use that 35 year number.

As I've talked to the people who have looked into this matter, these news reports about what he was actually facing is not consistent with what the interaction was between the government and Mr. Swartz. A plea offer was made to him of 3 months, before the indictment. This case could have been resolved with a plea of 3 months. After the indictment, an offer was made and he could plead and serve 4 months. Even after that, a plea offer was made, of a range of zero to 6 months, that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never any intention for him to go to jail for a period longer than 3, 4, potentially 5 month range.

These claims are not only misleading, but also total and complete bullshit. First off, if you never intended for him to spend more than 6 months in jail, and you're upset at the "media" for using the 35 year number... why is it that the DOJ's own press release on the arrest played up the 35 years:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

I'm sorry, but you don't get to push that number around in your own damn press release and then whine and complain about how "unfair" it is that the media uses the number you gave them.

Separately, concerning the insistence that they never wanted him to spend more than 6 months in jail, they leave out the fact that this was only if Swartz agreed to plead guilty to multiple felonies. According to various reports, the DOJ, via Assistant US Attorney Steve Heymann made it clear that if Swartz did not agree to the plea, then he would seek somewhere around seven years in jail.

Cornyn goes on to ask about why the DOJ pursued the case even after the supposed "victim," JSTOR said it didn't want to have anything to do with the case. Cornyn specifically asks if it makes sense to threaten someone with 35 years in prison when the victim doesn't even seem to feel harmed by the situation. Holder than tries to spin this around and, incredibly, argue that the fact that they didn't pursue the full 35 years is an example of good prosecutorial discretion. Seriously.

Cornyn: The subscription service didn't support the prosecution. Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3 or 4 month prison sentence?

Holder: Well I think that's a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, 0 to 6 was consistent with that conduct.

In other words, the only thing Holder is really saying here is that there was perfectly reasonable prosecutorial discretion if and only if Swartz agreed to a plea bargain in which he plead guilty to all felony charges against him. Basically, it's a "good use of prosecutorial discretion" to bully someone into pleading guilty to a crime they don't believe they've committed, and as long as they accept that, go to jail, and be okay with being labelled a felon for life, then there's no problem.

How do we let these people into positions of power?

Filed Under: aaron swartz, bullying, doj, eric holder, facts, john cornyn, press release, prosecution, prosecutorial discretion

Eric Holder On Domestic Drone Strikes: Eh, Could Happen

from the i-just-pooped-myself dept

The questions about drones keep coming. Much of the focus has been on the legality of their use overseas, or else the manner in which domestic law enforcement uses them here at home. Glyn Moody even recently wrote about how the World Wildlife Fund wants to use them to tackle those who would poach endangered species throughout the world. Some folks in government have a problem with all this, in particular the coupling of the President's power to kill Americans if the government deems them as terrorists with the use of flying metal death machines raining carnage from the sky.

Like Rand Paul, for instance, who recently sent a letter to John Brennan, nominated as director of the CIA, asking him to clarify how the administration would view their power to authorize lethal force. Eric Holder, Attorney General, took the time to respond to Paul, and included this gem.

Holder said it was possible, "I suppose," to imagine an "extraordinary circumstance in which it would be necessary and appropriate" under U.S. law for the president to authorize the military to "use lethal force" within the United States. However, Holder said the question was "entirely hypothetical" and "unlikely to occur."

You know, I'm typically one of those people who hates placing issues into absolute stances. For any situation, there are almost always outliers that need to be considered, so using words like "never", "impossible", and so on are usually the wrong approach...except when it comes to fire-bombing domestic targets from the sky in a country filled with law enforcement. This is one of those easy situations where we need to be able to get together as Americans and say, no, we don't think it's a great idea for our own military drones to be used domestically. The potential for collateral damage has previously been documented and should make this question easy on its face.

The study by Stanford Law School and New York University's School of Law calls for a re-evaluation of the practice, saying the number of "high-level" targets killed as a percentage of total casualties is extremely low -- about 2%.

And that doesn't even begin to broach the subject of the constitutionality question. The rules for using lethal force in American domestic law enforcement are extremely specific and they're designed to protect LEOs and civilians in immediate harm that cannot otherwise be contained. To suggest that drones could strike domestically is to suggest that due process can be thrown completely out the window. As Senator Paul noted in his response to Holder:

"The U.S. attorney general's refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening. It is an affront to the constitutional due process rights of all Americans," Paul said.

Brennan, for his part, managed to, himself, say that the administration has "no intention" of using drone strikes on Americans in the United States...when there's a full moon or on weekends or something. Okay, so I added that last part, but why are we qualifying this at all? While Brennan also said that the CIA wouldn't have the authority to use drones domestically, it's not like there aren't those clamoring for more and more use of drones by the domestic alphabet agencies. Are we really okay with this?

Filed Under: domestic killings, drone strikes, eric holder, presidential assassination, presidential authority

Senator John Cornyn Asks Eric Holder To Explain DOJ Prosecution Of Aaron Swartz

from the this-is-getting-bigger... dept

While we've seen some politicians in Congress speak out about the prosecution against Aaron Swartz, for the most part, it had been the "usual crew" of folks who had formed the core of the anti-SOPA alliance -- Reps. Lofgren, Issa and Polis. That's great, but it also made it unfortunately easy for some to dismiss their complaints. However, it appears that this may be getting bigger. Senator John Cornyn has jumped in and sent a letter to Attorney General Eric Holder asking for an explanation of the prosecution against Aaron Swartz. He specifically asks a number of interesting questions:

First, on what basis did the U.S. Attorney for the District of Massachusetts conclude that her office’s conduct was “appropriate?” Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

Third, what role, if any, did the Department’s prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.

Fourth, why did the U.S. Attorney’s office file the superseding indictment?

Fifth, when the U.S. Attorney’s office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz’s alleged conduct and its impact upon victims?

Sixth, was it the intention of the U.S. Attorney and/or her subordinates to “make an example” of Mr. Swartz? Please explain.

Finally, the U.S. Attorney has blamed the “severe punishments authorized by Congress” for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give U.S. Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?

Interesting questions all around. As Emptywheel notes, that second question is a bit of a new one. People have talked about the earlier investigations of Aaron, as well as his activism, but little attention has been paid to his widespread use of FOIA. However, Aaron did file a lot of FOIA requests, using the same platform, MuckRock, that we've used here at Techdirt. In fact, MuckRock put up a post about Aaron's use of that service including the fact that Aaron and MuckRock were currently in the middle of appealing the results of a FOIA request concerning domain seizures -- a story that potentially could implicate the DOJ.

I am sure that we'll get the usual bland denials and non-answers from Holder, but it is significant to see Senators like Cornyn suddenly take an interest in this particular issue.

Filed Under: aaron swartz, doj, eric holder, foia, john cornyn, prosecution

DOJ Railroads CIA Torture Whistleblower Into Reduced Guilty Plea

from the shameful dept

Back in April, we wrote about how the Obama administration, for the astounding sixth time, had used the Espionage Act -- which is supposed to be used against spies -- to bring criminal charges against a former government employee-turned-whistleblower. All other Presidents prior to Obama put together had used the Espionage Act in this manner three times. Yes, the Obama administration has doubled all previous such uses. Last year, lots of attention was paid to the case of Thomas Drake, which ended in a weak plea bargain, after much of the government's case fell apart. This year, the attention was on this latest case, against former CIA agent, John Kiriakou, who blew the whistle on how the CIA tortured people via waterboarding.

In a sane society, such whistleblowing would receive a hero's welcome, and the people involved in torture would be in jail. President Obama has said that waterboarding is torture, as has Attorney General Eric Holder, who runs the DOJ. Given that, combined with Obama's repeated insistence that his administration must encourage whistleblowing, you would think that the administration, led by the DOJ, would celebrate a CIA agent who exposes such practices, and seek to punish those who carried them out.

Instead, we have the reverse. This morning, Kiriakou plead guilty, though to a much lesser charge -- that of "revealing an undercover operative's identity." Similar to the Drake case, they found narrow grounds for a guilty plea. The plea document and the associated "statement of facts" are embedded below for your horror. They tell... uh... a very one-sided view of the story, leaving out all the pesky little details about torture. Kiriakou was more or less forced into taking the deal after a judge had ridiculously ruled that you didn't have to intend to harm the US to be guilty under the Espionage Act. How is it possibly espionage against a country if you don't intend to harm that country?

The whole proceeding (and all of these other cases) have seriously called into question the Obama administration's supposed support of whistleblowers. It's clear that was a horrible joke played on the public when Obama insisted he wanted to encourage whistleblowing. Before these latest events, Bloomberg had an absolutely scathing story and editorial about the administrations abuse of power under the Espionage Act to beat down any whistleblowers.

As the Government Accountability Project notes, the tragedy in all of this is that Kiriakou goes to jail, while the actual torturer, remains free. They note that this plea lets the case be over, and makes sure that Kiriakou will be out of jail in 2.5 years -- and will get to see his children grow up. But the whole claim of "outing" is ridiculous:

"Outing" is quotes because the charge is not that Kiriakou's actions resulted in a public disclosure of the name, but that through a Kevin Bacon-style chain of causation, GITMO torture victims learned the name of one of their possible torturers. Regardless, how does outing a torturer hurt the national security of the U.S.? It's like arguing that outing a Nazi guarding a concentration camp would hurt the national security of Germany.

They further note that the CIA agent "outed," Thomas Fletcher, was widely known to reporters well before Kiriakou mentioned his name to reporters. As GAP notes:

An effectively-forced plea from John Kiriakou will be the tragic bookend to the torture narrative: Kiriakou will be going to jail, while Fletcher happily enjoys retirement in Vienna VA, safe with protection from "the most transparent administration in history."

Oh, and not just that, but:

The only person to be criminal prosecuted, and now likely jailed, as a result of the Bush-era torture regime is John Kiriakou, who refused to participate in torture, helped expose the program, and said on national television that torture was wrong.

Shameful. Oh, and as an aside to folks here who have spent time following the Megaupload case, the guy who headed up this case for the DOJ, Neil MacBride... is the same guy who's heading up the Megaupload prosecution.

Filed Under: barack obama, doj, eric holder, espionage act, john kiriakou, thomas fletcher, torture, waterboarding, whistleblowing

Justice Department Calls Megaupload Case A Success; Hands Out Cash To Cops To Do More Bogus Takedowns

from the shameful dept

Back in 2010, we wrote about Attorney General Eric Holder talking up how excited he was to create a special "IP Task Force" within the Justice Department. It was, effectively, an admission that he was happy to play Hollywood's business model protection officer on the public dime. Since then, of course, the DOJ has been involved in a fairly stunning set of disastrous attempts to "enforce" IP law -- including seizing and censoring two separate sites for over a year without real due process or evidence. Then there's the questionable attempt to deport a UK student for creating a web forum.

And, of course, the master of all screwups, the Megaupload case. Given all the info that's been released so far, you'd think that the DOJ would have a slam dunk against Megaupload -- but instead, the case has been a complete disaster for the DOJ, as every week we seem to hear about another error made in going after the company. Given how poorly the DOJ has come out in that case so far, you would think that Attorney General Holder wouldn't be highlighting it as a key example of a "success story" for his role as Hollywood's favorite inside man.

And yet... in a speech in which he talks about handing out cash to local police forces to become local versions of Hollywood's private police force, he uses Megaupload as a shining example of the success of this "Intellectual Property Theft Enforcement Program." Of course, you'd think that the top lawyer in the country would know better than to falsely call infringement theft, but apparently Holder's very good at taking Hollywood's talking points without bothering to understand the actual law. Otherwise, he wouldn't have had to "give up" in the Rojadirecta and Dajaz1 cases, after it became abundantly clear that the DOJ was about to lose big time, and could face serious problems for its actions. Instead... he just cheers on the various abuses and failings in the Megaupload case as if they were successful:

In this year alone, we have prosecuted a number of significant IP cases. For example, in January – in one of the largest criminal copyright cases in U.S. history – the Department indicted two corporations and seven individuals with operating an international organized criminal enterprise responsible for massive worldwide online piracy of numerous types of copyrighted works, through Megaupload.com and other related sites.

Indicted, yes. But pretty much everything after the indictment has been an unmitigated disaster. There was the illegal raid on Kim Dotcom's home, which used the wrong documentation. There was the illegal taking of evidence out of New Zealand without permission. There was the illegally obtained intelligence info on Dotcom's location. There was the ridiculous SWAT-ification of the raid team, which New Zealand officials now admit was both overkill and a mistake. Basically, pretty much every action by the DOJ in the case has been a disaster. And this is what Holder is cheering on as he hands out money for local cops to do more of the same? Really?

Filed Under: eric holder, ip enforcement, justice department, law enforcement, takedowns
Companies: megaupload

Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog

from the answers-were-not-satisfactory dept

Back in December, right after it came out that the Justice Department had seized and censored a hip hop blog for over a year and then gave it back, effectively admitting that there was no legal basis for the censorship, Rep. Zoe Lofgren asked Attorney General Eric Holder about what happened in the case. After making a joke that his daughters might know more about it than he did, he promised to get back to Lofgren with a more complete answer once he was more familiar with the situation.

Turns out he never responded to her questions.

Of course, since then the secret proceedings in the case (which Dajaz1 was not even allowed to know about, or even have their lawyer speak to the judge) have been unsealed. Those revealed that the ICE Agent in charge of the case, Andrew Reynolds, had basically sat around doing nothing for over a year, waiting for the RIAA to finally provide the evidence that Dajaz1 had broken the law. That evidence was obviously never produced, which is why Dajaz1 eventually got its domain back.

There was another oversight hearing yesterday, and Zoe Lofgren quizzed Holder again, noting that not only did he not respond to her questions, but also highlighting the unsealed documents, which show that the original affidavit was misleading.
Holder first responds that he "believes" the seizures were legal, because the court signed off on them. Lofgren immediately challenges that, noting the incorrect or misleading information in the affidavit, and asking if he believes it's okay to censor a site for over a year and not allow the site to even be heard by the court in all that time. At that point, he at least admits that if the affidavit was "misleading" that "that would not be an appropriate basis for action on behalf of the government." He also notes that seizure is a powerful tool that needs to be used "judiciously." And then notes that if what Lofgren descrbied was accurate "that would be of great concern."

Of course, none of that comments on what actually happened here -- and it's not like this is the first time he's heard of this. Remember, he was directly asked about it last year, and had promised to look into the details. Furthermore, after the hearing, Lofgren put out a statement saying that not only did she not hear back from him after her questions last year, but "prior to this hearing my staff told his staff to tell him the question I was going to be asking so he could be prepared to answer." Clearly, he was not prepared to answer.

As Lofgren notes, "I didn't think it was a very impressive answer, and to suppress free speech for a year with secret proceedings and no probable cause is a problem. It's not the way America is supposed to be."

Filed Under: censorship, doj, eric holder, seizure, zoe lofgren
Companies: dajaz1