The Bradley Manning Verdict Will Create Massive Chilling Effects For Whistleblowers And Journalists

from the shameful dept

Following the Bradley Manning verdict, a number of individuals and organizations have weighed in to highlight just how big the chilling effects of the guilty verdict will be. While being found not guilty of "aiding the enemy" meant that it wasn't the "worst case" scenario, it's still bad. Dan Gillmor does an excellent job laying out the simple facts about how the "unrelenting war" on leaks and whistleblowing will have damaging impact on the press, and by extension, the public.

For those who want to tell the public what the government is doing with our money and in our name, there are new imperatives. Governmental secrecy, surveillance and the systematic silencing of whistleblowers require updated methods for journalists and journalism organizations of all kinds. Americans pursuing this craft have to understand the risks and find countermeasures.

That is not enough. The public needs to awaken to the threat to its own freedoms from the Obama crackdown on leaks and, by extension, journalism and free speech itself. We are, more and more, a society where unaccountable people can commit unspeakable acts with impunity. They are creating a surveillance state that makes not just dissent, but knowledge itself, more and more dangerous. What we know about this is entirely due to leakers and their outlets. Ignorance is only bliss for the unaccountable.

Gillmor also quotes another journalist, Jeremy Scahill, who points out that: "We're in a moment when journalism is being criminalized."

Many in the journalism world are realizing this. Reporters Without Borders put out a statement about how damaging this is for investigative reporters and their sources:

The verdict is warning to all whistleblowers, against whom the Obama administration has been waging an unprecedented offensive that has ignored the public interest in their revelations. It also threatens the future of investigative journalism, which risks finding its sources drying up.

“The information that Manning allegedly passed to WikiLeaks -- used by newspapers such as The New York Times, The Guardian, Der Spiegel and Le Monde in coordination with Julian Assange’s website -- included revelations of grave abuses in the ‘war on terror’ launched by the Bush administration,” Reporters Without Borders said.

Similarly, the Freedom of the Press Foundation is worried about the consequences, specifically over the conviction over the CFAA and how this will impact future cases:

Manning is now the most high profile conviction under President Obama’s crackdown on leakers. As has been well documented, his administration has prosecuted more leakers under the Espionage Act that all other administration’s combined, and has cast a distinct chill over investigative journalism.

The Espionage Act, a draconian statute written in 1917 as a way to punish non-violent opponents of World War I, has unfortunately been used in recent years to equate leakers and whistleblowers with spies and traitors. Facilitating that warped view in Manning's trial, the judge ruled early on that the defense was not allowed to put forth evidence of Manning’s sole intent to inform the American public, or evidence showing that none of the information materially harmed national security.

Today's ruling also opens up a new avenue for charging leakers and whistleblowers—section (a)(1) of the Computer Fraud and Abuse Act, which until now, has never led to a conviction. It’s was crafted in the 1990s by using some of the worst parts of the Espionage Act and adding the phrase “with a computer.”

Michael Calderone, over at the Huffington Post noted that future whistleblowers of government fraud and abuse are likely to think twice now -- which some might argue was the entire point of the overzealous prosecution.

That Manning was convicted of six counts of espionage, out of 19 counts total, highlights the Obama administration's unprecedented use of the Espionage Act to prosecute individuals for leaking information not to foreign governments, but to the media. The Obama administration has invoked the Espionage Act seven times, with the most recent example being in the case of Edward Snowden, a former NSA contractor who shed light on the extent of the U.S. surveillance state with leaks to The Guardian and the Post.

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, said it's a "very scary precedent" that "despite the lack of any evidence that he intended any harm to the United States, Manning faces decades in prison."

If basic whistleblowers are frightened, it's going to make the press's job harder, and it's going to make the government's ability to commit fraud and abuse that much easier.

Meanwhile, the EFF has pointed out the ridiculousness of the CFAA conviction as a part of the ruling against Manning:

the decision today continues a trend of government prosecutions that use familiarity with digital tools and knowledge of computers as a scare tactic and a basis for obtaining grossly disproportionate and unfair punishments, strategies enabled by broad, vague laws like the CFAA and the Espionage Act. Let's call this the “hacker madness” strategy.  Using it, the prosecution portrays actions taken by someone using a computer as more dangerous or scary than they actually are by highlighting the digital tools used to a nontechnical or even technophobic judge.

In the Manning case, the prosecution used Manning’s use of a standard, over 15-year-old Unix program called Wget to collect information, as if it were a dark and nefarious technique. Of course, anyone who has ever called up this utility on a Unix machine, which at this point is likely millions of ordinary Americans, knows that this program is no more scary or spectacular (and far less powerful) than a simple Google search. Yet the court apparently didn’t know this and seemed swayed by it.

You can argue that Manning didn't follow the chain of command to blow the whistle (even though he tried) and that he released documents that he shouldn't have (even if there's no evidence that they did any real harm), but the impact of this ruling, and the eventual sentencing is going to have far-reaching implications, beyond just Manning. The government's overzealous prosecution is going to have serious chilling effects, and has opened up some highly questionable legal theories just because this leak happened "with a computer."

Filed Under: bradley manning, chilling effects, investigative journalism, journalism, whistleblowers

Obama Promise To 'Protect Whistleblowers' Just Disappeared From Change.gov

from the not-the-change-we-were-looking-for dept

The folks from the Sunlight Foundation have noticed that the Change.gov website, which was set up by the Obama transition team after the election in 2008 has suddenly been scrubbed of all of its original content. They noted that the front page had pointed to the White House website for a while, but you could still access a variety of old material and agendas. They were wondering why the administration would suddenly pull all that interesting archival information... and hit upon a clue. A little bit from the "ethics agenda":

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

Yeah. That statement seems a bit embarrassing at the very same time Obama's administration is threatening trade sanctions against anyone who grants asylum to Ed Snowden. Also... at the same time that we get to see how whistleblower Bradley Manning's "full access to courts and due process" will turn out. So far, it's been anything but reasonable, considering that the UN has already condemned Manning's treatment as "cruel and inhuman." And people wonder why Snowden left the country...

Filed Under: barack obama, change.gov, ed snowden, whistleblowers

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

Edward Snowden, Michael Meili, And The United States' Hypocrisy On Whistleblowers

from the oh,-hello-there,-hypocrisy dept

As the Edward Snowden asylum drama marches on, examples of odd behavior by the American government are beginning to weigh down the scales of justice. Most recently, the United States seems to be overly concerned with all that free speech Russia is allowing Snowden, which would be like Switzerland criticizing another country for eating way too much chocolate. Or you may have noticed the not-so-subtle difference in treatment for established DC insiders leaking information versus your ordinary, everyday NSA sub-contractor. Finally, most apropro, the US appears to be willing to strain international relations and possibly violate diplomatic privileges for national leaders in their quest to keep Snowden from reaching anything resembling asylum, despite asylum having been offered by several South American countries.

These actions might be dastardly all on their own, but when you measure them against how the United States has behaved when the shoes were on the other foot, you're left with a dose of hypocrisy that would kill most lab rats. Take, for instance, the case of Michael Christopher Meili, security guard in Switzerland (chocolate!) for UBS, their mega-bank. He revealed some of UBS' shady dealings when it came to the banking documents of Jewish clients during the holocaust.

As a result, not only did Meili lose his job, but he was also under investigation by Swiss authorities for violating Swiss law. Moreover, according to Meili's testimony in a U.S. Senate hearing (available here), after Swiss police took possession of the documents, they told Meili that the Swiss government was treating the documents as "classified," despite the fact that they were UBS documents, and that they "would never be seen by people 'outside Switzerland.'"

Finally, while Meili believed he was exposing an act of destruction that was, or should have been, illegal, the Swiss police told him that they had concluded that UBS had done nothing wrong.

Sound familiar? Person of conscience working for a private organization that has ties to the government exposes wrong-doing, government sweeps in and initiates investigation while also unilaterally declaring classification of said wrong-doing, and then money-shots the affair by declaring all activities legal. Now, perhaps you're wondering why Meili was testifying about this at the US Senate. Well, because he went there to receive asylum, of course.

Unfortunately for Meili, the United States government determined that under no applicable law could Meili qualify for asylum. Fortunately for Meili, the Unites States government then decided to just make up a law specifically for Meili and pass it, ostensibly under the "Because Fuck You" statute in international law. And if you think I'm exaggerating, witness Private Law 105-1:

For the relief of Michel Christopher Meili, Giuseppina Meili, Mirjam Naomi Meili, and Davide Meili.

Yeah, they didn't even attempt to hide what they were doing. Just signed a law that might as well have been called "Private Law 105-1-haha-we-got-this-guy-LOL." Clinton signed the law straight away. Senators lined up to say how heroic Meili was. This in stark contrast to Obama's claim that Snowden must be returned to the US because we have to uphold "the rule of law." More striking still is Senator Charles Grassley, who claimed that because Snowden obviously broke the law, he must come home to be prosecuted at all costs. Want to guess what Grassley's take on Meili was?

The situation we have here with Mr. Meili, albeit everything that he has brought to our attention has worldwide implications, but a person like him acted out of bravery, or maybe the bravery comes after he has acted because he has had to withstand the mental torture of what has gone on since then. But it reminds me of a lot of things that happen in our own Government, and I realize his is a private sector situation, but I like to think that we keep our Federal Government honest when we have people in our Government who, when something is wrong, will be willing to come forward and say what is wrong.

We speak of these people in our Government as whistleblowers. Maybe, originally, that was to denigrate them, but as far as I am concerned the word "whistleblower" is a description of somebody who wants to seek the truth, who wants to make sure that all of the facts and circumstances are known so that a wrong can be corrected.

Now, compare that to the very same Senator Grassley and his comments on Snowden:

"I suppose it gets down to — did he break a law? — I think it's pretty obvious he did," Grassley says. "People in the Justice Department will make that determination and whatever that determination is, I'll have to abide by it, but if he did break a law, it's quite common sense that he be prosecuted."

Grassley also suggested that Snowden, who "sought truth" and "wants to make sure that all of the facts and circumstances are known so that a wrong can be corrected" was clearly "aiding the enemy." I think it'd be really nice if 1997 Senator Grassley could come back and have a long discussion with 2013 Senator Grassley, preferably one involving a pointy stick and much foul language. And perhaps include the rest of the government as well.

Filed Under: charles grassley, ed snowden, hypocrisy, leaks, michael meili, nsa surveillance, whistleblowers

Compare: Clapper 'Unscathed' After Lying About Surveillance; Snowden 'Stateless' & 'Hounded' For Revealing Those Lies

from the shameful dept

Earlier this month, we noted the contrast between Director of National Intelligence James Clapper and former NSA contractor Ed Snowden. Clapper, as you may recall, flat out lied to Congress about US surveillance, then lied about the lying, changed his story three times, and finally admitted it. Snowden, on the other hand, told the public about those lies and provided the proof. The contrast between the two comes into stark contrast today with two different things.

First, we have Snowden holding a press conference from Moscow's Sheremetyevo airport, where he has been effectively confined for weeks -- and will likely remain for some indefinite period. In his statement, he notes that he has been offered asylum, but he has become "stateless" and while he has accepted the offers of asylum, incredible and illegal efforts by the US government have made it so that he is unable to actually travel to the countries that have granted him asylum.

... the government and intelligence services of the United States of America have attempted to make an example of me, a warning to all others who might speak out as I have. I have been made stateless and hounded for my act of political expression. The United States Government has placed me on no-fly lists. It demanded Hong Kong return me outside of the framework of its laws, in direct violation of the principle of non-refoulement – the Law of Nations. It has threatened with sanctions countries who would stand up for my human rights and the UN asylum system. It has even taken the unprecedented step of ordering military allies to ground a Latin American president's plane in search for a political refugee. These dangerous escalations represent a threat not just to the dignity of Latin America, but to the basic rights shared by every person, every nation, to live free from persecution, and to seek and enjoy asylum.

Of course, around the same time Snowden was making that statement, the AP was reporting that Clapper has emerged from this whole thing "unscathed," with no one questioning whether he ought to be fired, or even charged with perjury or contempt of Congress, for both running the questionable intelligence program and then outright lying about the program (and then lying about those lies). The AP report goes even further, noting that Clapper has been flat out wrong in a number of things he's told Congress in recent years, which normally would raise questions about his credibility. But not with Congress, apparently.

Incredibly, his defenders in Congress say that they should give him the benefit of the doubt, because he's so honest:

"This administration views Snowden as the problem, not Gen. Clapper," House Intelligence Committee member Adam Schiff, D-Calif., said of Clapper, a retired Air Force lieutenant general. "He is generally a very straight shooter. I think people are willing to give him the benefit of the doubt that he wasn't trying to mislead the Senate."

It's Clapper's bluntness — in closed hearings, away from the cameras — that will likely be his saving grace, according to former House Intelligence Committee Chairman Pete Hoekstra, a Michigan Republican.

"I never found him to parse his words or answers," Hoekstra said. "You might not agree with him, and you could have a very spirited argument with him. He wouldn't try to hide it. And that's a good thing."

So, apparently, if you spy on people, lie about it, but talk "bluntly" to Congress about those lies and your spying, that's okay. But if you're an NSA contractor who reveals that Clapper is an out and out liar, potentially violating the Constitutional protections of millions of Americans, you need to be hounded around the globe, and blocked from actually leaving an airport in Moscow.

Filed Under: congress, ed snowden, james clapper, lying to congress, nsa, surveillance, whistleblowers

President Obama Calls Ed Snowden A 'Hacker' When He Didn't Hack Anything

from the smearing dept

This is odd. In talking about Ed Snowden, President Obama referred to him as a "hacker." After being asked about what kinds of efforts the administration was making to capture Snowden, the President (thankfully) claimed that they weren't going to go too crazy over it, but chose an odd descriptor for Snowden:

"I'm not going to be scrambling jets to get a 29-year-old hacker," he told reporters during a news conference in Senegal.

Leaving aside the fact that Snowden recently turned 30, calling him a "hacker" seems like a calculated move to try to reframe these leaks as something nefarious where someone "broke in" to get classified info, rather than a whistleblower on the inside, who saw what was going on, the widespread abuses, the lying to the American public and Congress, and decided to do something about it. This attempt at reframing whistleblowing is all too consistent with the administration's practice of declaring war on whistleblowers.

Filed Under: barack obama, ed snowden, edward snowden, hacker, nsa leaks, whistleblowers

DOJ Guidelines: Inappropriate To Prosecute Leaking Gov't Information As 'Theft Of Gov't Property'

from the umm... dept

Well, this is interesting. Last week, of course, it was revealed that the DOJ has charged Ed Snowden for various crimes, including "theft of government property." In fact, Rep. Mike Rogers, the head of the House Intelligence Committee, seems to think this is the key charge, and argues (ridiculously) that the documents "belong to the people of the US" and that Snowden somehow "stole" them by giving the documents to those very same "people of the US."

However, as Declan McCullagh points out, the DOJ's own manual very clearly says that it is "inappropriate" to charge people who take government documents and information with theft of government property, in part because that might lead to unfair prosecution of whistleblowers:

Section 641 of Title 18 prohibits theft or receipt of stolen government information as well as theft of the documents, computer discs, etc., that contain the information. United States v. Fowler, 932 F.2d 306, 309-10 (4th Cir. 1991); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.), cert. denied, 444 U.S. 871 (1979); United States v. DiGilio 538 F.2d 972, 977-78 (3rd Cir. 1976), cert. denied sub nom. Lupo v. United States, 429 U.S. 1038 (1977). But see United States v. Tobias, 836 F.2d 449, 451 (9th Cir.), cert. denied, 485 U.S. 991 (1988). Nevertheless, for the reasons set forth below, the Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.

There are two reasons for the policy. First, it protects "whistle-blowers." Thus, under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft. Second, the policy is designed to protect members of the press from the threat of being prosecuted for theft or receipt of stolen property when, motivated primarily by the interest in public dissemination thereof, they publish information owned by or under the custody of the government after they obtained such information by other than trespassory means.

And yet, the "theft of government property" seems to be central to the government's charges against Snowden, suggesting that, yet again, the administration is really grasping at straws in trying to charge Snowden with anything it can dig up for daring to blow the whistle on the surveillance program.

Filed Under: doj, doj guidelines, ed snowden, edward snowden, espionage, leaks, prosecution, theft of government property, whistleblowers

Edward Snowden Charged With Espionage By US Government

from the and-off-we-go dept

This isn't a huge surprise, but the Washington Post is reporting that US federal prosecutors have filed a sealed criminal complaint against Edward Snowden charging him with espionage under the Espionage Act, along with theft and conversion of government property -- and have asked Hong Kong authorities to detain him. Just this morning, we were discussing the Obama administration's war on whistleblowers, prosecuting six different whistleblowers under the Espionage Act, twice the number of all other presidential administrations combined. Now we're up to number seven apparently. Update: The complaint has been unsealed (also embedded below).

Did Snowden break the law? Possibly -- but charging him with espionage is ridiculous, just as it has been ridiculous in many of these cases. Snowden wasn't doing this to "aid the enemy" but to alert the American public to the things that the administration itself had been publicly misleading to downright untruthful about. His actions have kicked off an important discussion and debate over surveillance society and how far it has gone today. That's not espionage. If he was doing espionage, he would have sold those secrets off to a foreign power and lived a nice life somewhere else. To charge him with espionage is insane.

In terms of process, the Washington Post explains:

By filing a criminal complaint, prosecutors have a legal basis to make the request of the authorities in Hong Kong. Prosecutors now have 60 days to file an indictment, probably also under seal, and can then move to have Snowden extradited from Hong Kong for trial in the United States.

Snowden, however, can fight the U.S. effort to have him extradited in the courts in Hong Kong. Any court battle is likely to reach Hong Kong's highest court and could last many months, lawyers in the United States and Hong Kong said.

It also notes that while the US and Hong Kong have an extradition treaty, there is an exception for "political offenses."

While this certainly was not unexpected, it's still a disappointing move from the administration. The crackdown on whistleblowers does not make the US look strong. It makes our government look weak, petty and vindictive in the face of actual transparency. It's shameful.

Filed Under: barack obama, doj, ed snowden, edward snowden, espionage, extradition, hong kong, nsa, nsa surveillance, whistleblowers

Obama Administration Has Declared War On Whistleblowers, Describes Leaks As 'Aiding The Enemy'

from the going-a-bit-far dept

In 2008, now President Obama ran with the following as a key plank in his campaign:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled as they have been during the Bush administration. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

None of that has happened. Instead, as we've discussed repeatedly, President Obama has been the most aggressive President ever in attacking whistleblowers and bringing the full weight of the law down on them. In fact, in 2012, rather than promote protecting whistleblowers in his campaign, the campaign bragged about how it cracked down on whistleblowers:

President Obama has done more than any other administration to forcefully pursue and address leaks of classified national security information.... The Obama administration has prosecuted twice as many cases under the Espionage Act as all other administrations combined. Under the President, the Justice Department has prosecuted six cases regarding national security leaks. Before he took office, federal prosecutors had used the Espionage Act in only three cases.

The above paragraph is true -- and we've pointed it out in the past as well -- but we thought it was shameful, not something worth bragging about. Furthermore, since he was elected, President Obama has never praised a single federal employee who was a whistleblower. When asked by a reporter from the Huffington Post for an example of President Obama supporting a whistleblower, the White House refused to respond.

Given all of that, it will come as little surprise to read a piece by reporters Marisa Taylor and Jonathan Landay of McClatchy's Washington Bureau, in which they reveal that the White House has a special attack program to deal with whistleblowers called Insider Threat Program (ITP). And, no, contrary to what the administration has claimed, it's not just about "national security" issues. It goes way beyond that:

President Barack Obama’s unprecedented initiative, known as the Insider Threat Program, is sweeping in its reach. It has received scant public attention even though it extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration and the Education and Agriculture departments.

And, as the reporters note, the program may emphasize classified material, but actually goes way beyond that to cover leaks of just about anything. Furthermore, it encourages the ridiculous view that leaks which expose questionable behavior to the public are the same as aiding the enemy.

“Hammer this fact home . . . leaking is tantamount to aiding the enemies of the United States,” says a June 1, 2012, Defense Department strategy for the program that was obtained by McClatchy.

Yes, informing the American public of misdeeds by the US government is considered "aiding the enemies of the United States." The reality, of course, is what they're saying is that they really mean "the current government" when they refer to "the United States," and "the enemies" are the American public.

And, part of the program seems to be to put pressure on anyone to snitch on their colleagues if they suspect potential leakers. Government employees who fail to report colleagues who exhibit "high risk" behaviors may be subject to criminal charges. Basically, snitch on anyone who acts suspiciously, or else... And, of course, it's not just the Defense Department. The Agriculture Department has an online tutorial teaching people how to spot potential whistleblowers, entitled "Treason 101."

As becomes obvious, this massively discourages whistleblowing. It massively discourages anyone raising any alarm about programs that might be out of control, for fear that they might be declared a "high risk" person or even guilty of espionage for trying to blow the whistle. President Obama not only has not supported the "courageous" whistleblowers he praised, he's made it so scary to report any malfeasance that when it eventually does come out, it takes the dramatic form of someone like Edward Snowden, rather than someone willing to go through all the "official channels." It's a complete failure and does little to promote good government.

Filed Under: aiding the enemy, espionage, leaks, whistleblowers

Previous NSA Leakers, Thomas Drake And Mark Klein, Speak Out In Defense Of Ed Snowden

from the confirms-what-they-said dept

As US politicians and pundits push each other aside to tar and feather Ed Snowden for revealing some basic facts about NSA surveillance that the politicians and pundits themselves refused to call out for its clear abuse of basic 4th Amendment principles, two of the most important previous leakers of details of NSA surveillance have spoken out in support of Snowden. Thomas Drake, the former NSA employee who blew the whistle on NSA surveillance abuse (and faced decades in jail on trumped up charges that fell apart in court), has pointed out that Snowden's revelations confirm his own claims from before:

The NSA programs that Snowden has revealed are nothing new: they date back to the days and weeks after 9/11. I had direct exposure to similar programs, such as Stellar Wind, in 2001. In the first week of October, I had an extraordinary conversation with NSA's lead attorney. When I pressed hard about the unconstitutionality of Stellar Wind, he said:

"The White House has approved the program; it's all legal. NSA is the executive agent."

It was made clear to me that the original intent of government was to gain access to all the information it could without regard for constitutional safeguards. "You don't understand," I was told. "We just need the data.

Drake also highlights how he did use the "official" whistleblower channels that many are saying Snowden should have used, and look what happened to him:

I differed as a whistleblower to Snowden only in this respect: in accordance with the Intelligence Community Whistleblower Protection Act, I took my concerns up within the chain of command, to the very highest levels at the NSA, and then to Congress and the Department of Defense. I understand why Snowden has taken his course of action, because he's been following this for years: he's seen what's happened to other whistleblowers like me.

By following protocol, you get flagged – just for raising issues. You're identified as someone they don't like, someone not to be trusted. I was exposed early on because I was a material witness for two 9/11 congressional investigations. In closed testimony, I told them everything I knew – about Stellar Wind, billions of dollars in fraud, waste and abuse, and the critical intelligence, which the NSA had but did not disclose to other agencies, preventing vital action against known threats. If that intelligence had been shared, it may very well have prevented 9/11.

But as I found out later, none of the material evidence I disclosed went into the official record. It became a state secret even to give information of this kind to the 9/11 investigation.

The end result was that his whistleblowing didn't do much, but he got arrested because he accidentally kept an almost entirely meaningless document about meeting participants in his home. And, when he was arrested, for just having the list of meeting attendees, he was smeared for causing "exceptionally grave damage to US national security."

Separately, former AT&T technician, Mark Klein, who revealed that he helped install NSA equipment directly within AT&T's network is speaking out about how Snowden, rather than the telcos, deserve retroactive immunity. The telcos broke the law and had to have Congress go back and retroactively make what they did -- which clearly broke the law at the time -- legal. Klein points out how his revelations were brushed off and ignored, while Snowden's revelations confirm a lot of what he said:

"It was clear that the NSA was looking at everything," Klein said. "It wasn't limited to foreign communications."

On Tuesday, Klein said that for a number of reasons, Snowden's disclosures sparked more public outrage than his own revelations did more than seven years ago.

For one thing, Klein said, Snowden had direct access to a secret court order and details of the program, while Klein pieced together the government's surveillance through internal AT&T documents and in discussions with colleagues who worked on the project.

"The government painted me as a nobody, a technician who was merely speculating," said Klein, who made his disclosures after he accepted a buyout and retired from AT&T in 2004. "Now we have an actual copy of a FISA court order. There it is in black and white. It's undisputable. They can't deny that."

Snowden's revelations just add to a pile of existing evidence. Look at what Drake, Klein and other whistleblowers have said over the past decade, and recognize that Snowden is just confirming the things that have already been stated by previous whistleblowers, but which the pundits and politicians tried to brush off as not happening.

Filed Under: ed snowden, edward snowden, mark klein, nsa, nsa surveillance, thomas drake, whistleblowers, whistleblowing