Four Years Is Long Enough: The DOJ Should End Its Grand Jury Investigation Into Wikileaks

from the file-charges-or-drop-it dept

For many years, it's been widely known, if not officially confirmed, that the DOJ had a grand jury investigation going on against Julian Assange and Wikileaks. As far back as early 2011, it was already quite clear that they didn't have enough evidence to actually make a case against him. They were so desperate that they tortured Chelsea Manning and offered her a plea deal if she would lie, and claim, falsely, that Assange "conspired" with her. Last fall, we noted that some in the DOJ were finally admitting that they had no case, but as of the end of April, the investigation was still happening.

A very long list of human rights and press freedom groups have now sent a letter to Attorney General Eric Holder, asking him to end the criminal investigation and admit that nothing criminal was done by Assange or Wikileaks in relation to publishing classified information leaked to it by Manning (and, potentially, others).

In a recent meeting with media representatives, you promised that “as long as I am attorney general, no reporter who is doing his job is going to go to jail.” Yet, the continued criminal investigation and other persecution of WikiLeaks and Mr. Assange puts them at serious risk. Well-respected legal scholars across the political spectrum have stated that a prosecution of WikiLeaks or Mr. Assange for publishing classified material or interacting with sources could criminalize the newsgathering process and put all editors and journalists at risk of prosecution.

There is growing international recognition that new media organisations are creating new channels for political debate and play a crucial role in maintaining transparency and democratic forms of government. The US Government made freedom of expression on the Internet one of the priorities of its foreign policy; this commitment must not be limited to the international arena. Thus, we are concerned that actions against Wikileaks undermine the commitment of the US Government to freedom of speech

It's doubtful that this will do any good, but it's important to keep highlighting issues like this, and how the administration has failed, badly, to live up to its promises. Unfortunately, rather than actually doing the right thing, all too often, the administration seems to decide to double down on its strategy.

Filed Under: bradley manning, chelsea manning, doj, eric holder, free press, free speech, grand jury, human rights, journalism, julian assange, wikileaks

DOJ Is Still Investigating Wikileaks

from the that's-a-hell-of-a-long-investigation dept

It's no secret that many in the US government would love to find a way to charge Wikileaks and Julian Assange with criminal activities for reporting on leaks. However, as many have pointed out, doing so would create a firestorm, because it's difficult to see how what Wikileaks did is any different than what any news publication would do in publishing leaked documents. The attack on press freedom would be a major problem. Still, the Justice Department has spent years trying to come up with any way possible to charge Assange with a crime. They even tortured Chelsea Manning and then offered her a deal if she lied and claimed that she "conspired" with Assange to release the State Department cables. That didn't work. Even as the DOJ couldn't produce any evidence that Manning and Assange conspired, the Defense Department insisted it had to be true. Last year, however, there were finally reports that the DOJ was just about ready to admit that it had no legal case against Assange, with officials effectively admitting that it would be tantamount to suing a newspaper.

But... apparently the DOJ's investigation still isn't over. As Marcy Wheeler noted, a FOIA request by EPIC concerning the DOJ's investigation into Wikileaks supporters has been rejected, because the DOJ's investigation of Wikileaks is still not closed. In fact, the judge notes that there are "at least two investigations" still going on -- the one on Wikileaks itself, and Chelsea Manning's appeal. On the Wikileaks investigation:

The second type of enforcement proceeding, generally, is the DOJ’s civilian criminal/national security investigation(s) into the unauthorized disclosure of classified information that was published on the WikiLeaks website. The investigation of the unauthorized disclosure is a multi-subject investigation and is still active and ongoing. While there have been developments in the investigation over the last year, the investigation generally remains at the investigative stage. It is this second category of enforcement proceeding that is actually more central to defendants’ Exemption 7(A) withholdings in this case.

So, despite basically admitting last year that there is no case, the government has not yet given up that it can find something to pin on Assange and "there have been developments in the investigation over the last year." This is an investigation that has been going on for about four years already. It would appear that at least some folks at the DOJ are still obsessed with finding some way to charge Assange with some crime, just because.

Filed Under: bradley manning, chelsea manning, doj, grand jury, investigations, julian assange
Companies: wikileaks

From Snowden To Manning... To Ben Franklin And Sam Adams? A History Of Leakers Of Secret Gov't Documents

from the there's-a-line dept

We're taking a little break for the holidays, but will be posting a couple of less timely stories to keep things interesting...

For all the talk from some about how terrible and "anti-American" Ed Snowden and Chelsea Manning are for distributing secret government documents that revealed misbehavior on the part of the government, the Digsby blog highlights a historical parallel that I hadn't heard about before: the Hutchinson Letters Affair, in which Benjamin Franklin essentially played the role of Snowden and Manning.

The short version is that Franklin obtained -- through means unknown -- a packet of letters written by Massachusetts Lieutenant Governor Thomas Hutchinson and Andrew Oliver to Thomas Whately, the assistant to UK Prime Minister George Grenville, concerning how to deal with the increasingly angry colonists in the late 1760s. This was at the time that colonists -- especially in Massachusetts -- were increasingly angry about moves by the UK to raise taxes and remove their rights. Hutchinson more or less suggested accelerating the process.

In the letters, Hutchinson made some damning comments about colonial rights. Even more provocative, Hutchinson recommended that popular government be taken away from the colonists “by degrees”, and that there should be “abridgement of what are called English liberties”. Specifically, he argued that all colonial government posts should be made independent of the provincial assemblies. Finally, he urged his superiors to send more troops to Boston to keep American rebels under control.

Upon obtaining these (while in London), Franklin realized that they were somewhat explosive, and he quickly sent copies to some friends in the US, starting with Thomas Cushing (apparently no known relation to our own Tim Cushing), and told him to share them with others, but to not have them published. However, after Cushing and Sam Adams saw them, they figured out how to get them out:

The letters arrived in Massachusetts in March 1773, and came into the hands of Samuel Adams, then serving as the clerk of the Massachusetts assembly. By Franklin's instructions, only a select few people, including the Massachusetts Committee of Correspondence, were to see the letters. Alarmed at what they read, Cushing wrote Franklin, asking if the restrictions on their circulation could be eased. In a response received by Cushing in early June, Franklin reiterated that they were not to be copied or published, but could be shown to anyone.

A longtime opponent of Hutchinson's, Samuel Adams narrowly followed Franklin's request, but managed to orchestrate a propaganda campaign against Hutchinson without immediately disclosing the letters. He informed the assembly of the existence of the letters, after which it designated a committee to analyze them. Strategic leaks suggestive of their content made their way into the press and political discussions, causing Hutchinson much discomfort. The assembly eventually concluded, according to John Hancock, that in the letters Hutchinson sought to "overthrow the Constitution of this Government, and to introduce arbitrary Power into the Province", and called for the removal of Hutchinson and Oliver.[ Hutchinson complained that Adams and the opposition were misrepresenting what he had written, and that nothing he had written in them on the subject of Parliamentary supremacy went beyond other statements he had made. The letters were finally published in the Boston Gazette in mid-June 1773, causing a political firestorm in Massachusetts and raising significant questions in England.

There was apparently then a huge hullabaloo over who leaked the letters, even leading to a duel in England, before Franklin stepped up and admitted to "leaking" the letters, and then defended that action, by noting that the letters were written by "public officials for the purpose of influencing public policy," and thus implying that it was reasonable for the public to know about them. In other words, the same basic reasons behind what Manning and Snowden did. Franklin did get punished for all of this, but it was nothing compared to the fates of Snowden and Manning. As Harry Blutstein writes in the link above:

On January 29, 1774, Franklin was hauled up before the Privy Council to explain why he had leaked letters in the ‘Hutchinson Affair’. He was accused of thievery and dishonor, called the “prime mover” of Boston’s insurgents and charged with being a “true incendiary”. Throughout the hearing, Franklin maintained a dignified silence. For his disloyalty to the Crown, he Privy Council held off sending Franklin the gallows or even sentencing him to an afternoon in the stocks. Instead, Solicitor General Alexander Wedderburn was satisfied with the tongue-lashing he meted out to Franklin and the next day the Board of Trade dismissed Franklin from his post as Deputy Postmaster General of the North America colonies.

Had the Espionage Act been in place in Great Britain in 1774, Franklin would not have been around to lead the War of Independence, nor would he have been around to raise vital funds to support the rebellion and we would not have seen his signature on the Declaration of Independence or the United States Constitution.

Perhaps those who are slamming Snowden and Manning as "traitors" ought to learn a little history about some of our most famous and respected founding fathers.

Filed Under: benjamin franklin, bradley manning, chelsea manning, ed snowden, history, hutchinson letters, sam adams

John McCain Says That Keith Alexander Should Be Fired... For All The Wrong Reasons

from the what-about-prosecuted dept

Senator John McCain, who is certainly considered more "hawkish" on national intelligence and thus a lot more likely to support the NSA, made some interesting statements in a recent interview with the German paper Der Spiegel, including saying that President Obama should fire Keith Alexander. While that might surprise you, the reality is that he does so for all the wrong reasons -- mainly, he doesn't blame Alexander for illegal spying. He blames Alexander for letting word get out that we were spying on "friends."

SPIEGEL: Are the intelligence services out of control?

McCain: There has not been sufficient congressional oversight, and there has been an absolutely disgraceful sharing of information that never should have taken place. For many years, we had an absolute provision that any classified information, which was going to be shared, is based on need-to-know information. I was a Navy pilot and had Top Secret clearance because I was in a squadron that in case of war with Russia would carry nuclear weapons. But that did not mean that I was privy to everything to do with all of our war plans in case of a nuclear war.

SPIEGEL: That means that you only knew what you absolutely had to know.

McCain: Yes. Then along came 9/11 and we said, "Oh, one of the reasons why we didn't know about 9/11 is that we didn't do enough information sharing." So now we have a private in the Army with access to most secret cables.

SPIEGEL: You mean Private First Class Bradley Manning, now Chelsea, who leaked thousands of secret documents to Wikileaks.

McCain: And now we have a contractor employee, not a government employee, who has access to information which is, when revealed, most damaging to the standing prestige of the United States and our relations with some of our best friends. Why did Edward Snowden have that information? And what are we doing as far as screening people who have access to this information? It's outrageous, and someone ought to be held accountable.

SPIEGEL: Who must be held accountable?

McCain: The head of the NSA, the president of the United States, the Congressional Intelligence Committees, all of these contractors we pay that were responsible for performing the background checks. There should be a wholesale housecleaning.

SPIEGEL: Should Keith Alexander, head of the NSA, resign?

McCain: Of course, they should resign or be fired. We no longer hold anybody accountable in Washington. The Commandant of the Marine Corps fired a couple of generals because of failure of security at a base in Afghanistan. Tell me who has been fired for anything that's gone bad in this town.

Notice that it's not because of the spying that Alexander should be fired... but rather because people like Manning and Snowden were able to leak documents.

And, yes, elsewhere in the interview, McCain does complain about the extent of the NSA's spying... but not on ordinary Americans. No, the only thing that seems to upset him about it is when it impacts our relationships with "friends" in foreign governments. Look at this key quote:

SPIEGEL: In your opinion, how should intelligence services define the lines that must not be crossed?

McCain: The limit should be the potential damage to relations with that country. In other words, is it worth the collateral damage that could result in those techniques being revealed? What would be the reaction of our friends to it?

Notice absolutely no mention of things like people's rights to privacy? Notice absolutely no mention of concern for citizens either in the US or elsewhere? Nope. His only concern is when the spying might "damage relations" with a friendly country. Incredible.

Elsewhere in the interview, McCain scoffs at the idea that Germany might offer Snowden asylum, saying "we're too good friends" for Germany to do such a horrible thing. He also insists that he knows Snowden revealed everything to the Russians, despite no evidence to support this. He says that if you don't believe Snowden revealed everything to the Russians, "then you believe that pigs can fly." Furthermore, he calls Snowden a "defector," which is simply factually inaccurate. Snowden was forced into the Russians' hands by the US's clumsy approach to trying to stop him.

The only thing that seems to offend McCain is (1) that we let "low level" people like Manning and Snowden have access to secrets and (2) that we might offend a few "high level" friends. It's the complaint of an ultimate insider, who only cares about friends in high places and has absolutely no concern whatsoever for the common people he hasn't been in touch with in decades.

Filed Under: angela merkel, bradley manning, chelsea manning, ed snowden, germany, john mccain, keith alexander, surveillance

The Real 'Danger' Of Snowden And Manning: The US Can't Get Away With Its Powerful Hypocrisy Anymore

from the end-of-hypocrisy dept

We were among those who noted that the recent stories about the NSA spying on politicians in Brazil, France, Mexico, Germany and elsewhere seemed more like political theater than anything else. After all, spying on foreign politicians, even allies, is what countries do. So the supposed "outrage" seemed somewhat silly. It really felt like the kind of thing that politicians felt they had to do following the revelations, because everyone expected them to do so. Any actual outrage was likely tempered by the fact that their own intelligence agencies basically were trying to do the same damn thing to everyone else (and some of them have probably succeeded).

However, Henry Farrell and Martha Finnemore have an astoundingly good article for Foreign Affairs called The End of Hypocrisy which makes a point so obvious, so clear and so almost certainly right that almost everyone has ignored it until now. Much of the article is technically behind a paywall, but hopefully the link above gets you past it (Farrell seems to be handing out links that go through the paywall on Twitter like candy on Halloween, so if you still can't get in, just ask). The basic premise is this: the leaks from the likes of Ed Snowden and Chelsea Manning are hardly earth shattering in terms of what they reveal. As plenty of people have noted, most of what they've released has been widely suspected, if not known by many. While the specifics really do matter for those aiming to get a handle on what the US (and others) are doing, and to stop the really egregious behavior, the idea that any of these revelations really harmed active intelligence gathering appears to be little more than smoke and mirrors. As the article notes, even with all the rhetoric about "harm" caused by these leaks, officials have "often struggled to explain exactly why these leaks pose such an enormous threat."

What Farrell and Finnemore note, instead, is that the really powerful and devastating impact of these leaks is not directly on the intelligence community, but rather on the US's use of hypocrisy as a policy tool. Again, many will point out, it is no secret that the US can and often is horribly hypocritical in the policies it demands of others, compared to the policies it enforces on itself. Plenty of people (including, at times, us) have called out those hypocrisies. Instead, what the article notes, is that for quite some time, the US has actually been able to effectively use this hypocrisy as a policy tool to great effect.

In short: many of the US government's global policies really only hung together so long as everyone pretended the US wasn't hypocritical. And that's worked for decades.

The deeper threat that leakers such as Manning and Snowden pose is more subtle than a direct assault on U.S. national security: they undermine Washington’s ability to act hypocritically and get away with it. Their danger lies not in the new information that they reveal but in the documented confirmation they provide of what the United States is actually doing and why. When these deeds turn out to clash with the government’s public rhetoric, as they so often do, it becomes harder for U.S. allies to overlook Washington’s covert behavior and easier for U.S. adversaries to justify their own.

Few U.S. officials think of their ability to act hypocritically as a key strategic resource. Indeed, one of the reasons American hypocrisy is so effective is that it stems from sincerity: most U.S. politicians do not recognize just how two-faced their country is. Yet as the United States finds itself less able to deny the gaps between its actions and its words, it will face increasingly difficult choices -- and may ultimately be compelled to start practicing what it preaches.

The real threat then to all of this activity is that that form of political hypocrisy is no longer possible, because (1) the public in other countries won't accept it any more leading to (2) politicians having to point out the hypocrisy and (inevitably) (3) other global powers taking advantage of that now public hypocrisy to further their own interests.

As the article points out, the hypocrisy is often not overt, or even consciously done (though, clearly, in some cases, it is). But, quite frequently, it's done by those who feel they must do these things "in the best interests of the country," even as they'll scream and yell and condemn any other nation that does the same.

But, the reality is that so much of our foreign policy for the past century has been premised on this framework of getting away with being hypocritical, and leaks like Manning's and especially Snowden's threaten in a very real way to undermine that framework. And, when the entire premise of your foreign policy framework is built on this shell game of hypocrisy, that can be a really serious problem. Not for any of the reasons those fretting about Snowden's leaks tell you, of course, but if the US can't base its foreign policy decisions on its own hypocrisy, it might have to start acting honestly, and that's not how things have worked in decades.

The article details how this system of US hypocrisy, with every other country turning a blind eye, worked in part because the incentives worked perfectly. Other countries often were beneficiaries of such hypocrisy:

Given how much they benefit from the global public goods Washington provides, they have little interest in calling the hegemon on its bad behavior. Public criticism risks pushing the U.S. government toward self-interested positions that would undermine the larger world order. Moreover, the United States can punish those who point out the inconsistency in its actions by downgrading trade relations or through other forms of direct retaliation. Allies thus usually air their concerns in private. Adversaries may point fingers, but few can convincingly occupy the moral high ground. Complaints by China and Russia hardly inspire admiration for their purer policies.

Furthermore, it points out, the fact that the US has been able to get away with this for so long has just perpetuated the issue. US politicians probably don't feel like they're being hypocritical, as discussed above, but part of it is pure complacency. They've gotten away with it so many times in so many ways for so many years, that it's become the way things are done. And these leaks may undermine all of that.

So, now what?

Farrell and Finnemore suggest there are two likely paths, both of which will make the country less hypocritical, but not necessarily in a good way. As they warn, the "easiest" course of action, would be to just drop the hypocritical language. That is, stop arguing about trying to spread freedom and democracy around the globe, and just flat out admit that the US government does what it does entirely based on what it believes is best for the country. Russia and China often do exactly that. Of course, while this may be the easier path (and, undoubtedly one that some politicians will pursue), it has serious problems, in part because it makes it significantly more difficult to actually accomplish those goals. It's basically ceding any moral high ground that the US has had. And while some people will laugh at the idea that the US ever really had a moral high ground, it's quite naive to ignore the power that "high ground" position has had at times to impact changes around the globe, even if the true reasons were self-interest. As they warn, this approach could lead to serious problems as "the bonds of trade and cooperation that Washington has spent decades building could unravel."

The much more difficult approach, but the one that likely has the most long-term positive impact is to get rid of the hypocrisy in the other way: that is, rather than dropping the language of freedom and openness, of democracy and liberty, to actually embrace those principles. That is, to make the moral high ground an actual thing, rather than a foundation built on lies.

A better alternative would be for Washington to pivot in the opposite direction, acting in ways more compatible with its rhetoric. This approach would also be costly and imperfect, for in international politics, ideals and interests will often clash. But the U.S. government can certainly afford to roll back some of its hypocritical behavior without compromising national security. A double standard on torture, a near indifference to casualties among non-American civilians, the gross expansion of the surveillance state -- none of these is crucial to the country’s well-being, and in some cases, they undermine it. Although the current administration has curtailed some of the abuses of its predecessors, it still has a long way to go.

If we were to actually move in that direction, many of us believe it would be a powerful and wonderful thing. Imagine a United States that actually lived up to the ideals we claim to live by? If that was the end result -- and again, the likelihood of this happening may be incredibly slim -- then the efforts of Manning and Snowden will be much more powerful and important than either of them likely imagined. Of course, if the US were to drop the hypocrisy and focus on its ideals, it might stop persecuting both of them for their actions as well.

Either way, the article is incredibly powerful in reframing much of what is happening, and there's much more in there that's worth reading than I covered here. It appears that Farrell is planning to continue to explore this concept and how it relates to what's happening in the news every day, and I imagine it will be worth paying attention to.

Filed Under: bradley manning, chelsea manning, ed snowden, henry farrell, hypocrisy, martha finnemore, us government

The Press Lumps Ed Snowden And Chelsea Manning In With Mass Murderers, Actual Spies

from the all-the-same dept

Many in the press still seem to have difficulty recognizing that a whistleblower, even one disliked by the government, isn't somehow an automatic pariah to society. Instead, they like to lump them in with actual law breakers. Here are two recent examples. First up is the Washingtonian, who seems to think that Ed Snowden and Chelsea Manning should be viewed in the same light as actual spies -- people who famously chose to sell secrets to our enemies or to help those enemies against the US. Lumping Manning and Snowden in with Julius and Ethel Rosenberg, Benedict Arnold, Aldrich Ames, John Walker Lindh and others suggests a profound misunderstanding of what Snowden and Manning did: releasing evidence of significant wrongdoing by the US government to the press. You would think if anyone could understand it, it should be the press. Still, I can understand how some confused people still want to argue that there's at least a continuum between some of those folks and Manning and Snowden -- even if I disagree wholeheartedly -- simply because of the releasing of classified information. I think it's very different to give that info to the press, which is then able to go through it and report on the stories (as both Snowden and Manning did) than giving it to a foreign power, but some people don't seem to get that distinction.

Either way, even if you think the above chart is okay, the following one is simply outrageous. As pointed out by the ACLU's Jameel Jaffer, Time Magazine has put together a graphic comparing Snowden and Manning to mass murderers Nidal Hasan and Aaron Alexis. Yes, the argument they're making is that these are all examples of "missed signals in our government-clearance system." And we've certainly discussed how terrible the process is for getting top secret clearance these days. But, even so, lumping those four together is crazy. There's nothing about what Manning or Snowden did that should have set off alarm bells during the clearance process. They were people who loved America and then realized that the government was secretly doing things that they believed to be fundamentally anti-American, and they set out to try to fix that by alerting the public. That's pretty damn different than going someplace and shooting it up.

These are both subtle ways in which the press is trying to smear Snowden and Manning, by lumping them in with crimes of which they are not guilty.

Filed Under: bradley manning, chelsea manning, ed snowden, espionage, journalism, leaks, murder, spies, whistleblowers

Feds Abused Anti-Terrorism Database To Track Chelsea Manning Supporter, Seize His Computer

from the subject-detained-in-notorious-border-town-of-Chicago,-IL dept

We've written a number of times about the so-called Constitution-free zone that extends 100 miles inward from the borders of the United States, a place where the Border Patrol, along with the DHS and ICE, exercise the "right" to search electronic devices without a warrant. (The government has also baffingly argued that not searching your laptop doesn't provide enough of a civil liberties benefit to outweigh the potential security "gain.")

As is the case with most unconstitutional acts performed by government agencies, the justification is "terrorism." Keeping our borders secure apparently means allowing federal agents to delve as deeply as they want into electronics that cross the border, even if it's someone who just went to Mexico on vacation. Presumably, David House wasn't a threat to national security when he left for Mexico, but by the time he landed at Chicago's O'Hare Airport, he was.

House worked with the Bradley Manning Support Network and this was all the "evidence" ICE needed to alert DHS agents that House would be returning from Mexico through Chicago -- and the wide-open policy on electronic searches was all the agents needed to seize and search House's phone and laptop.

House was stopped at Chicago’s O'Hare International Airport coming back from vacation in November 2010. At the time, he was working with the Bradley Manning Support Network, which was raising funds for the legal defense of the soldier who has since plead guilty to providing classified documents to WikiLeaks. DHS agents detained House, interrogated him about his political activities and beliefs, and then seized his laptop computer, mobile phone, camera, and USB drive. The agents returned House’s phone after inspecting it, but the government kept the rest of his devices for seven weeks while agents searched his files for evidence. Even after the government returned House’s physical devices, it continued to actively investigate copies of his files for nearly six more months.

The ACLU filed suit on House's behalf, claiming he was targeted for political reasons, leading to his First and Fourth Amendment rights being violated. The government tried to dismiss the suit in 2012, claiming its agents don't need reasonable suspicion or a warrant to search electronic devices at the border. The judge smacked that down, granting that the DHS has certain powers which preclude reasonable suspicion or warrants, but that those powers are still limited and that its politically-motivated actions violated House's First Amendment rights. A settlement was reached with the government, which agreed to destroy the data it gathered from its search of House's electronics and release documents related to the search.

Here's what the ACLU has discovered from the released documents:

The settlement documents reveal that an agent with Homeland Security Investigations (HSI)—an Immigration and Customs Enforcement (ICE) subdivision that is now the second largest law enforcement agency in the United States—entered a “lookout” into a government database called TECS (see the document here), effectively notifying government agents throughout the country that House was wanted for questioning in connection with the Department of Justice’s investigation into Manning and WikiLeaks. As a result of the lookout, which was linked to the Advance Passenger Information System, HSI later received an automated notification that House would be traveling outside the country and that he would return through O’Hare on November 3, 2010.

The records also show that HSI was acting in cooperation with—and perhaps at the request of—the Department of Justice, the Department of State, and the Army’s Criminal Investigative Division, not to protect our borders but to further a domestic investigation of the WikiLeaks disclosures. House’s connection to Manning through the Bradley Manning Support Network made him a target of that investigation. The government then used its access to airline passenger information to learn when and where David House, and others, would be traveling across our border (see the document here), and laid in wait to seize his computer and other electronic devices.

Much like the GCHQ's abuse of terrorism laws to intimidate David Miranda, the US abused its terrorism laws to pursue a vindictive domestic investigation. In addition to misusing its powers to intimidate House, the government also violated its own electronic search policies, which state that device searches should generally be completed within 30 days. House's devices were held for seven weeks and his data was investigated for the next seven months.

House may have received a settlement from the government and the presiding judge may have suggested that politically-motivated searches are unconstitutional, but this won't do much to change our current border policies on electronic devices. As the ACLU points out, federal agents are performing nearly 5,000 of these searches a year, and with the vague definition of "border" including a 100-mile band around the country and any other inland entry point where someone might return from a foreign country, the power remains almost limitless and completely unrelated to keeping our borders secure.

House's experience shows just how many tools the US government has at its disposal to intimidate whistleblowers and their associates (no matter how poorly defined). Fortunately, the ACLU scored a rare win against government-ordained abuse, but our federal agencies have frequently shown that the legality of their actions is usually only a minor concern -- something they'd rather deal with after the fact than consider ahead of time, especially when attempting to shut someone up.

Filed Under: anti-terrorism, border searches, bradley manning, chelsea manning, computers, david house, dhs, ice, seized, tecs

AP Claims Copyright Over Manning's Request For Pardon

from the really-now? dept

The Associated Press, which does not have the greatest history when it comes to respecting fair use, has posted a copy of the letter that Chelsea Manning sent to President Obama, requesting a pardon. If you haven't read the letter, it's worth reading. Here's a snippet:

In our zeal to kill the enemy, we internally debated the definition of torture. We held individuals at Guantanamo for years without due process. We inexplicably turned a blind eye to torture and executions by the Iraqi government. And we stomached countless other acts in the name of our war on terror.

Patriotism is often the cry extolled when morally questionable acts are advocated by those in power. When these cries of patriotism drown out any logically based dissension, it is usually the American soldier that is given the order to carry out some ill-conceived mission.

Our nation has had similar dark moments for the virtues of democracy - the Trail of Tears, the Dred Scott decision, McCarthyism, and the Japanese-American internment camps - to mention a few. I am confident that many of the actions since 9/11 will one day be viewed in a similar light.

But what struck me is that the AP page, which is nothing more than a reprint of Manning's letter with a single sentence explaining what it is at the top, contains a massively overbearing copyright notice right beneath the letter, which is an extreme form of copyfraud:

© 2013 THE ASSOCIATED PRESS. ALL RIGHTS RESERVED. THIS MATERIAL MAY NOT BE PUBLISHED, BROADCAST, REWRITTEN OR REDISTRIBUTED. Learn more about our PRIVACY POLICY and TERMS OF USE.

Nearly all of that is bullshit. The copyright on the letter does not belong to the AP. And, yes, the work can be published, broadcast, rewritten or redistributed within the confines of fair use. It's a shame that the AP is so aggressive on copyrights that it's even claiming someone else's work as its own -- in a case where the AP itself is certainly relying on fair use for the right to publish the letter in the first place.

Filed Under: bradley manning, chelsea manning, copyright, pardon

People Who Got Shorter Sentences Than Bradley Manning: Spies Selling Secrets To Russians & Active Terrorists

from the disproportionate dept

By now, of course, you've heard that Bradley Manning received a sentence of 35 years, and lots of people are arguing over whether or not this is reasonable. In fact, we've even seen some people arguing that he got off easy. Okay, well, let's explore that line of reasoning. Over at the Huffington Post, there's a good article looking at the sentences that eight actual spies received from the US. These are people who actively sold or tried to sell key US secrets to enemies, such as the Russians, as opposed to revealing wrongdoing to the public via the press. Guess what? The actual spies got off with lighter sentences.

Take, for example, the case of David Henry Barnett, a CIA agent who directly sold secrets to the Russians, including but not limited to outing around 30 active CIA agents to the KGB. Oh, and at the urging of the KGB, he also tried to get a job on Capitol Hill in order to get access to more secrets. He was eventually caught and charged with espionage in 1980... and received an 18 year sentence. Got that? Directly sell the identity of CIA agents to the KGB and you get about half the time that Manning got, not for revealing the identity of any intelligence agents, but basically for embarrassing the State Department and the military. That doesn't seem right.

Okay. And how about people, including Americans, who actively tried to hurt America? Remember, Manning made it quite clear his goal was to help America. But that's not true for these five people who joined the Taliban or teamed up with terrorists working on plans to attack America. Those people actively wanted to harm America. And they got shorter sentences.

David Hicks: An Australian national who was captured fighting alongside the Taliban and sent to Guantanamo Bay prison in 2002, Hicks plead guilty to material support for terrorism in a Gitmo military commission in 2007 and was sentenced to seven years confinement. That sentence was reduced to nine months given time already served.

John Walker Lindh: Lindh was convicted of a slew of terrorism and conspiracy charges in 2003 for fighting with the Taliban against the U.S. invasion of Afghanistan. He was sentenced to 20 years in prison.

Or, for a different type of comparison, how about how other countries have treated leakers of key government information? Once again, we discover people who appear to have revealed much more damaging information... and got off with much lighter sentences.

Had he been born in Denmark, he might have gotten four months for disclosing information a Danish court found highly damaging to national security. That’s the penalty Danish Defense Intelligence analyst Frank Grevil received in 2005 for disclosing threat assessments concerning Iraq’s possession of weapons of mass destruction.

Or, had he been British, he could have been released after serving seven weeks of a six month sentence, as was David Shayler, the former MI5 member who gave a newspaper 28 security and intelligence files on a variety of topics, including on Libyan links with the IRA, Soviet funding of the Communist party of Great Britain, agents’ names and other highly sensitive information.

Or, given his military status, he might have received a sentence of 12 months in jail – the penalty a British judge gave to Navy petty officer Steven Hayden in 1998 for selling significant security and intelligence information to a newspaper concerning a plot by Saddam Hussein to launch anthrax attacks in the UK. That sentence was the heaviest awarded to any of the eight Britons convicted of disclosing sensitive information since the current Official Secrets Act was passed in 1989.

In fact, the article notes that, after looking at the laws of 20 European countries, they discovered that while all have criminal penalties for disclosing classified national security info, most have a top penalty of just a few years in jail, so long as the person leaked the information, rather than delivering it directly to a foreign state. In the UK and Great Britain, for example, the longest time allowed under law is two years in prison. France is the most aggressive punisher, where leakers can face up to 7 years in jail.

Now, compare that to the truth about Bradley Manning. There's no evidence he put anyone in danger. Nothing he leaked was "top secret" (even though he had top secret clearance). His intent was clear from the beginning and it was not to aid our enemies or to harm America. Yet guess who gets the longer sentence?

Given all of these comparisons, it's difficult to see how the sentence that Manning received is anywhere even close to proportionate or reasonable. It seems fairly obvious: Bradley Manning was not punished so harshly for harming the US. He was punished for embarrassing the government. That's not how things are supposed to happen in an open and free society.

Filed Under: bradley manning, leaks, prison, punishment, sentences, sentencing, spies, terrorists

The Good News On The Manning Verdict? He Could Be Eligible For Parole In A Little Over Eight Years

from the using-the-term-"good-news"-very-loosely dept

Now that we know how long Manning has been sentenced to serve, the question turns to when he'll be released. Worst case scenario is 32 years, with credit for three years of time served. It's obvious he won't serve the entire sentence, but what's the earliest possible date Manning could be paroled?

There will be a lot of analysis covering this over the next few days, but it will be hard to find anything more incisive and informationive than this post by bmaz at emptywheel. His best case scenario is 8.3 years, but figures Manning will more likely serve 10 years unless the espionage counts get knocked out on appeal.

The whole post is thorough and well worth reading. The key takeaway is that Manning's status as a military prisoner means at least one thing will actually work out in his favor.

So, what about Bradley Manning’s potential release date? This is where there is a HUGE difference in the UCMJ process from civilian process. As many know, the United States government has abolished “parole” for federal prison sentences. Instead, and this is now common in many states too, federal prisoners must serve at least 85% of their imposed sentence, and only then are eligible for supervised release for the remaining time. Under the UCMJ, however, there is still an active and healthy parole system that is far more flexible and favorable to a defendant, especially one like Bradley Manning, who is sentenced to a long term.

So, there's that bit of a bright side. There are a near-literal ton of considerations that factor into bmaz's calculation and if you have any interest at all in the inner workings of the military prison system or enjoy watching someone who really knows their stuff think out loud, go and read this piece. If he's correct, Manning may end up with some life left to live and his defensive team's pleas aimed at preventing the whistleblower from having to exchange his youth for his "crimes" won't have been completely in vain. Bmaz sums it up this way:

In light of the fact Judge Lind has imposed a term of 35 years, Mr. Manning, considering the time he has already served, could potentially be eligible for release in as little as 9 years from now. As painful as it is to admit, this sentence, and Bradley Manning’s prospects could have very easily looked far worse.

Going in, there was no way Manning would walk away unscathed, even if a great many of us believe his only "crime" was causing headaches for the powers that be. And it must be noted (and never forgotten) that the wrongdoers Manning exposed aren't serving any time at all.

Filed Under: bradley manning, parole