DOJ Moving Ahead With Its Attempt To Prosecute Julian Assange; Subpoenas Chelsea Manning

from the all-the-bad-precedent-it-can-get dept

The DOJ is still moving ahead with its plan to attack free speech protections. More than eight years in the making, the attempted prosecution of Julian Assange for publishing leaked documents forges ahead slowly, threatening every journalist in its path.

Wikileaks isn't the only entity to publish leaked documents or shield their source. Multiple US press entities have done the same thing over the years. It seems the DOJ feels it's ok to go after Assange and Wikileaks because it's not a US newspaper. But once you set foot on a slope this slippery, it's pretty tough to regain your footing -- especially when the Executive Branch has housed people hellbent on eliminating leakers and whistleblowers for most of the last 20 years.

It appears the government wants Chelsea Manning to testify about her relationship with Wikileaks and Julian Assange. The demand Manning received may be deliberately vague, but it's pretty easy to connect the dots, as Charlie Savage does for the New York Times.

The subpoena does not say what prosecutors intend to ask her about. But it was issued in the Eastern District of Virginia and comes after prosecutors inadvertently disclosed in November that Julian Assange, the founder of WikiLeaks, has been charged under seal in that district.

Ms. Manning, who provided a copy of the subpoena to The New York Times, said that her legal team would file a motion on Friday to quash it, arguing that it would violate her constitutional rights to force her to appear. She declined to say whether she would cooperate if that failed.

It would seem like Manning already cooperated when she was being prosecuted. During that hearing, she took full responsibility for her actions and stated Wikileaks/Assange did not direct her actions. But if the DOJ can't get Manning to talk, it apparently has other options.

A former WikiLeaks volunteer who was also personal friends with Manning was subpoenaed last May. But unlike Manning, he did not fight the subpoena. He accepted an immunity deal offered by prosecutors.

It’s the second person in Assange’s broader orbit publicly known to have cooperated with prosecutors in their nearly decade-long pursuit of WikiLeaks.

The former volunteer is David House. House has been subpoenaed twice, according to The Daily Beast's Kevin Poulsen. House was uncooperative with the first, but far more accommodating the second time around, after being granted immunity for testifying.

House spoke briefly with prosecutors and then testified for about 90 minutes in front of the grand jury, he said. “They wanted to know about my meetings with Assange, they wanted to know broadly about what we talked about,” he recalled. Prosecutors seemed particularly interested in the potential for collateral damage in some of Assange’s leaks.

If the DOJ is really going to re-litigate the harms of Manning's leaks, it might want to refresh its memory about the damage they did. A classified Defense Department report said the leaked docs did no serious damage to personnel or American interests. This reiterated findings by the US military dating all the way back to 2013 which said the same thing: no Americans were harmed or killed as a result of the leaks. Unfortunately, the reality we're faced with is this: the DOJ is threatening First Amendment protections over some hurt feelings and embarrassment.

Filed Under: chelsea manning, david house, doj, indictment, journalism, julian assange, leaks, subpoenas
Companies: wikileaks

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

US Government Settles Lawsuit Over Seizure Of Laptop Of Bradley Manning's Friend

from the a-bit-late... dept

The US government's intimidation of anyone even remotely connected to Wikileaks is somewhat insane. The difficulty that former Wikileaks volunteer Jacob Appelbaum has every time he crosses the border is well documented. Two years ago, we noted that Immigrations and Customs Enforcement (ICE) had seized David House's laptop as he re-entered the country from a vacation. House has been a friend and supporter of Bradley Manning, and the feds kept his laptop for 49 days, and only returned it after the ACLU sent a sternly worded letter. House then sued the government. The government's defense was basically "we're the US fucking government and we can do what we want with your laptops at the border" (slight paraphrase). The court, however, didn't quite see it that way, and noted that politically motivated searches and seizures may be unconstitutional, under the First Amendment. This is important, because courts have let DHS/ICE ignore the 4th Amendment at the border, but here the court said that intimidating House and others could violate their 1st Amendment rights to freedom of association.

It's taken some time since then, but the feds have now agreed to settle the case, and more or less given in to all of the demands from House and the ACLU:

In a settlement reached with human rights activist David House, the government has agreed to destroy all data it obtained from his laptop and other electronics when he entered the U.S. after a vacation, the American Civil Liberties Union and the ACLU of Massachusetts announced today. House, who was then working with the Bradley Manning Support Network, an organization created to raise funds for the legal defense of the soldier who has admitted to leaking material to WikiLeaks, charged in a lawsuit that the seizure violated his Fourth Amendment rights by subjecting him to unreasonable search and seizure, and violated his First Amendment right to freedom of association.

More specifically:

Under the terms of the settlement, the government agreed to destroy all remaining data copied from House’s devices. The government will also hand over numerous documents, including reports describing Army CID’s inspection of House’s data as well as the DHS “Lookout” telling agents to stop House as he entered the country. The government further agreed to release reports on DHS agents’ questioning of House, which included inquiries about whether he knew anything about Manning giving classified information to WikiLeaks.

Some will argue that this is all way too late -- after all, the feds had that data for years, and the basic intimidation impact is still in place. However, hopefully this stops Homeland Security and ICE from continuing these kinds of politically motivated attacks.

Filed Under: 1st amendment, 4th amendment, bradley manning, constitution, david house, dhs, ice, laptops, seizing laptops

Court Suggests Politically Motivated Border Searches May Be Unconstitutional

from the that-would-be-big-news dept

The federal government has long held that you have no Constitutional rights at the border, and that they can search your laptop at the border without following the 4th Amendment. Unfortunately, courts have agreed with this position across the board. However, some situations can get a little trickier. What about if they're taking your laptop away and searching it (and holding it) offsite (i.e., over the border)? Well, one court has said that's okay if there's reasonable suspicion, but the specific boundaries of what's legal are still pretty fuzzy. The government, more or less, holds that anything goes. However, last year, David House, a friend of Bradley Manning, sued the government for taking his laptop away when he crossed the border from Mexico. They held the laptop for 49 days, only returning it after the ACLU sent them a threatening letter.

As House notes, he believes the seizure of his laptop was entirely political, and not related to any suspicion or threat that House caused. He also notes that the laptop contained a bunch of confidential information about the efforts to support Manning in his legal fight against the government. The US government responded by basically saying, "hey, look, we're the federal government and we can do what we want, so leave us alone." Specifically, the US government continues to insist that searching a laptop is no different than searching your luggage. Of course, as we've noted, that's ridiculous:

• You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include. With a suitcase, you specifically choose what to include.
• The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.

So far, it appears that the court is not buying the government's argument and is allowing the case to move forward, suggesting that if the search is politically motivated, it might violate the person's rights.

Although the agents may not need to have any particularized suspicion for the initial search and seizure at the border for the purpose of the Fourth Amendment analysis, it does not necessarily follow that the agents, as is alleged in the complaint, may seize personal electronic devices containing expressive materials, target someone for their political association and seize his electronic devices and review the information pertinent to that association and its members and supporters simply because the initial search occurred at the border.

The court also makes it clear that while border searches may not violate the 4th Amendment, if they are politically motivated, it's possible that there could be a 1st Amendment issue, which could make things interesting. Specifically, the court notes that since none of the government's interest had anything to do with border patrol this might actually be a 1st Amendment violation:

As discussed above, the agents questioned House solely about his association with Manning, his work for the Support Network, whether he had any connections to WikiLeaks, and whether he had contact with anyone from WikiLeaks during his trip to Mexico.... None of their questions concerned border control, customs, trade, immigration, or terrorism....

[....]

The Defendants’ assertion that concluding that House has alleged a plausible First Amendment claim would be somehow inconsistent with the Court’s finding that the initial search and seizure was routine under the Fourth Amendment analysis ignores the difference in legal standards that apply to Fourth Amendment and First Amendment claims. See Tabbaa, 509 F.3d at 102 n. 4 (noting that “distinguishing between incidental and substantial burdens under the First Amendment requires a different analysis, applying different legal standards, than distinguishing what is and is not routine in the Fourth Amendment border context”). That the initial search and seizure occurred at the border does not strip House of his First Amendment rights, particularly given the allegations in the complaint that he was targeted specifically because of his association with the Support Network and the search of his laptop resulted in the disclosure of the organizations, members, supporters donors as well as internal organization communications that House alleges will deter further participation in and support of the organization. Accordingly, the Defendants’ motion to dismiss House’s First Amendment claim is DENIED.

This stage of the case is just the court rejecting the feds attempt to get the case dismissed, but certainly the language explaining why that motion was denied is extremely encouraging.

Filed Under: border searches, bradley manning, david house, first amendment, fourth amendment, free speech
Companies: wikileaks

Feds Say They Can Search Bradley Manning's Friend's Laptop Because They Can

from the leave-us-alone dept

Back in May, we noted that Homeland Security's ICE group had taken David House's laptop and had kept it for 49 days because he's friends with Bradley Manning, who is accused of leaking the State Department cables to Wikileaks. House was traveling back to the US from a vacation in Mexico and Homeland Security has long held that it can take your laptops at the border for any reason whatsoever. House (with the help of the ACLU) sued the government over this. Not surprisingly, the Justice Department is defending the actions of ICE, basically using the "we did it because we can, so shut up" argument.

There is no basis for the Court to conclude that searches of laptops or other electronic devices at the border should be subjected to a different standard than that for other closed containers. Nor is there a basis for the Court to conclude that Plaintiff’s First Amendment rights were violated by the routine search and detention of his devices at the border.

This is, at best, disingenuous and, at worst, dishonest. There is a tremendous "basis" for a court to conclude that searches of electronic devices differ than searches of a closed container. That's because, as we've discussed at length before, what's in your laptop and what's in a container at the border are entirely different:

• You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include. With a suitcase, you specifically choose what to include.
• The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.

More to the point: the reason why ICE is supposed to be stationed at the border is to stop those who should not be in the country and to prevent items that should not be in the country from getting it. It is abundantly clear that taking House's laptop furthered neither of those goals, but instead it was done solely in an attempt to further an unrelated legal claim by the government (the case against Manning). It seems crazy to me that the courts do not seem to take into consideration the purpose of a border search in determining whether or not they are appropriate. This border search had nothing to do with the border and everything to do with the feds using a questionable opportunity to seize data that it could not otherwise get access to via legal means. If House's laptop were really crucial to the case, then the Justice Department should have gotten a warrant to view it, rather than use this loophole at the border. The fact that they did not get a warrant shows pretty clearly that they knew outside of the border situation, they had no right to look at the contents of House's hard drive.

On a separate note, the reason given for having to keep House's laptop for so long? Because the laptop ran both Linux and Windows and the tech geniuses at Homeland Security had trouble understanding how to deal with that.

Filed Under: 4th amendment, bradley manning, david house, free speech, laptops, privacy, seizures

Friend Of Bradley Manning Sues Homeland Security For Seizing His Laptop

from the land-of-the-free dept

Connecting two separate stories we've been covering here, it appears that the ICE group of Homeland Security seized the computer equipment of David House -- a friend and supporter of Bradley Manning -- as he flew back into the country last fall. As you may recall, DHS/ICE have been pushing hard for the right to seize and search laptops at the border for any reason (or no reason at all). Courts have mostly said this is okay, with a few exceptions. In this case, DHS didn't return the equipment for 49 days, and that was only after House had the ACLU send a "strongly-worded letter" demanding the return of the equipment. Again, while the courts have generally deemed such searches to be okay, the ACLU appears to think that this particular search is a perfect example of why these searches are massively overreaching -- so it has teamed up with House to sue DHS and the US government.

It certainly could make for an interesting case and an interesting challenge to DHS's claims that it can ignore the 4th Amendment at the border. The ACLU seems to be suggesting that since the seizures of his devices had nothing to do with customs, immigration or terrorism, but were politically motivated, then they violate both the 1st Amendment and the 4th Amendment. It definitely makes for an compelling argument, but I'd guess the courts will (yet again) defer to the US government on this one and say it was okay.

Filed Under: 4th amendment, bradley manning, david house, free speech, laptops, privacy, seizures