Snowden Explains How The Espionage Act Unfairly Stacks The Deck Against Reality Winner

from the snowden-supports-reality dept

There's been plenty of talk about the rapid arrest of Reality Winner (and, yes, people are still baffled that a real person is named this) and the fact that the tracking dots on printers may have helped track her down (along with the fact that she was one of only a few people who had recently touched that document). Fewer seem to have focused on the details in the leak, about how the Russians quite likely hacked e-voting vendors to a much deeper level than suspected. That seems like really important information for the public to understand -- especially for those of us who have been screaming from the mountaintops for years about the lack of security in e-voting machines.

In short: this certainly feels like a completely justifiable leak to better inform the public of something important, and done in a way that is unlikely to harm any national security efforts or assets. It seems to fit right in with the whistleblowing tradition of other leakers. And, yet, Reality Winner is charged under the Espionage Act. And, as we've also discussed for years, the Espionage Act explicitly blocks people from using the public interest or whistleblowing as a defense. Such information is simply inadmissable.

As Ed Snowden has now pointed out in response to the charges against Winner, this remains a huge threat to a free press.

Winner is accused of serving as a journalistic source for a leading American news outlet about a matter of critical public importance. For this act, she has been charged with violating the Espionage Act—a World War I era law meant for spies—which explicitly forbids the jury from hearing why the defendant acted, and bars them from deciding whether the outcome was to the public's benefit. This often-condemned law provides no space to distinguish the extraordinary disclosure of inappropriately classified information in the public interest—whistleblowing—from the malicious disclosure of secrets to foreign governments by those motivated by a specific intent to harm to their countrymen.

The prosecution of any journalistic source without due consideration by the jury as to the harm or benefit of the journalistic activity is a fundamental threat to the free press. As long as a law like this remains on the books in a country that values fair trials, it must be resisted.

Indeed. There are many arguments that this aspect of the Espionage Act is unconstitutional -- but that hasn't been tested in court, and it may never get tested in court. Even if it does, you never know how judges might rule. But it does seem quite problematic that a law that is explicitly designed to deal with literal spies sending information privately to our enemies is now regularly applied against whistleblowers releasing information for the public's benefit.

Filed Under: ed snowden, espionage act, free press, free speech, leakers, reality winner, whistleblowers

The Proper Channels For Whistleblowers Are Still A Joke

from the like-a-big,-dysfunctional-family...-fighting-over-a-will dept

This administration has made it clear whistleblowing isn't tolerated. It has prosecuted more whistleblowers than all other administrations combined. It's even planning a "Welcome Home" prosecution for the nation's most famous whistleblower -- Edward Snowden -- should he ever decide to return to the US.

Officials, of course, claim to love whistleblowing. That seems to be the main objection raised to Snowden's activities: "If only he'd gone through the proper channels, we wouldn't be seeking to jail him the moment he returns to American soil (or the soil of any country with a favorable extradition policy)."

But there are no official channels -- or, at least, no channels whistleblowers feel safe using.

Foreign Policy has the story of another NSA whistleblower the agency has chosen to make miserable rather than investigate the source of her complaints. It started with an FBI raid of her house -- something she found out via a phone call from an FBI agent already in her house. From there, it got worse.

“They suspended my clearances without giving me any reason,” she remembers. She wasn’t allowed at work, and for two years, the NSA made her “call every day like a criminal, checking in every morning before 8.” Khorasani went to the agency only for interrogations, she says: eight or nine sessions that ran at least five hours each. She was asked about her family, her travel, and her contacts.

This was all triggered by a meeting she set up with Thomas Drake -- another famous whistleblower prosecuted by this administration -- about how to follow through with a complaint about what she felt was an unfair reassignment. According to Drake, it was already too late.

“He said, ‘You’ve got the bull’s-eyes on you. You’re done,’” Khorasani recalls.

As the article points out, her story is one of several. The agency -- and the administration -- have made no meaningful distinction between whistleblowing and insider threats. They treat both in the same way, even if one is an integral part of government accountability. Anything the agency considers to be a threat, it handles with swift severity.

Individuals can find their clearances yanked, something that is signalled to other NSA employees with a red security badge, rather than the normal blue one. Employees are encouraged to report anything questionable about other employees to supervisors. Some employees aren't even employees. They're plants put in place to encourage incriminating statements or actions.

This isn't doing the NSA -- and dozens of other government agencies -- any favors. Talented people are leaving because they don't want to work in this environment. Potential employees are looking elsewhere for work. And still others are being forced out of a job because they aren't willing to simply shut up when they see something that bothers them.

The DOJ is no different. It's no fan of whistleblowers either. Unfortunately for it, it's not a national security agency so it can't maintain quite as much control over disclosures by whistleblowers. That's why it's been fighting legislators over whistleblower protection proposals. Marcy Wheeler has highlighted some of its objections to Senator Grassley's legislation, raised in recent testimony in front of a Congressional committee.

First off, it apparently feels too many of the proper channels are out of its direct control.

[A]s Attorney General Loretta Lynch revealed, DOJ is worried that permitting FBI Agents to report crimes or waste through their chain of command would risk exposing intelligence programs.

"What I would say is that as we work through this issue, please know that, again, any concerns that the Department raises are not out of a disagreement with the point of view of the protection of whistleblowers but again, just making sure that the FBI’s intelligence are also protected at the same time."

I suspect (though am looking for guidance) that the problem may be that the bill permits whistleblowers to go to any member of Congress, rather than just ones on the Intelligence Committees. It’s also possible that DOJ worries whistleblowers will be able to go to someone senior to them, but not read into a given program.

It's also likely concerned that whistleblowers will expose a number of questionable activities.

Still, coming from an agency that doesn’t adequately report things like its National Security Letter usage to Congress, which has changed its reporting to the Intelligence Oversight Board so as to exempt more activities, and can’t even count its usage of other intelligence programs, it seems like a tremendous problem that DOJ doesn’t want FBI whistleblowers to have protection because it might expose what FBI is doing on intelligence.

The FBI must be severely damaged at this point, or have too many secrets it would hate to see fall into the hands of legislators not connected to its mostly-captive audience in the Intelligence Committee. Grassley noted one of the agency's objections to additional whistleblower protections is that there's so damn much about the agency employees would complain about.

One of the issues that your department has raised is that allowing FBI employees to report wrong-doing to their chain of command could lead to too many complaints. You know? What’s wrong with too many complaints? … Seems to me you’d invite every wrong doing to get reported to somebody so it could get corrected.

If there's any agency that is sorely in need of some periodic deep housecleaning, it's the FBI.

This is the FBI! Not only a bureau that has tremendous power over people, but also one with a well-documented history of abuse. It should be the first entity that has whistleblower protection, not the last!

This is why there aren't more whistleblowers. The "proper channels" at the NSA will most likely net a whistleblower a search of their house and belongings en route to a forced resignation. Meanwhile, the FBI, with the DOJ's backing, is trying to narrow the reporting channels so it can -- like its NATSEC big brother -- eliminate unhappy employees before they can do any damage.

Filed Under: insider threats, leakers, nsa, proper channels, whistleblowers, white house

After Leading The Attack On Investigative Journalism, President Obama Whines About A Lack Of Investigative Journalism

from the really-now? dept

On Monday, President Obama gave a speech about journalism in Washington DC, in which he bemoaned the state of investigative journalism today, suggesting that the lack of good investigative journalism is partly to blame for the mess that is this year's Presidential election season:

A job well done is about more than just handing someone a microphone. It is to probe and to question, and to dig deeper, and to demand more. The electorate would be better served if that happened. It would be better served if billions of dollars in free media came with serious accountability, especially when politicians issue unworkable plans or make promises they can’t keep. (Applause.) And there are reporters here who know they can't keep them. I know that's a shocking concept that politicians would do that. But without a press that asks tough questions, voters take them at their word. When people put their faith in someone who can’t possibly deliver on his or her promises, that only breeds more cynicism.

There's plenty in the speech that I certainly agree with. The state of media coverage that has moved towards shallow entertainment and he said/she said journalism is sad. And it's good that the President called out that kind of stuff as well:

I think the electorate would be better served if we spent less time focused on the he said/she said back-and-forth of our politics. Because while fairness is the hallmark of good journalism, false equivalency all too often these days can be a fatal flaw. If I say that the world is round and someone else says it's flat, that's worth reporting, but you might also want to report on a bunch of scientific evidence that seems to support the notion that the world is round. And that shouldn’t be buried in paragraph five or six of the article.

He also highlighted some strong investigative reporting from the past and claims he's dismayed that we're seeing less of that today:

Whether it was exposing the horrors of lynching, to busting the oil trusts, to uncovering Watergate, your work has always been essential to that endeavor, and that work has never been easy. And let's face it, in today’s unprecedented change in your industry, the job has gotten tougher.

But he leaves out his own administration's actions as a big part of why the job of reporting has "gotten tougher." While he came into office promising "the most transparent administration in history" and one of his first official actions as President was to tell the entire federal government to default to revealing information in response to Freedom of Information Act (FOIA) requests, as we've detailed over and over again, the administration has actually been one of the most opaque, setting records for denying FOIA requests, and making it nearly impossible to get any information out of the government without a lawsuit.

Former NY Times Executive Editor, Jill Abramson, who's worked in journalism in DC for decades, noted that the Obama administration was the most secretive, by far.

"I would say it is the most secretive White House that I have ever been involved in covering, and that includes — I spent 22 years of my career in Washington and covered presidents from President Reagan on up through now, and I was Washington bureau chief of the Times during George W. Bush's first term," Abramson told Al Jazeera America in an interview that will air on Sunday.

And part of her complaint was not just in how the administration refuses to reveal anything, but also in how vindictive the White House was against reporters and sources.

The AP's Washington chief of bureau, Sally Buzbee, said the Obama administration's efforts to control information extend even to agencies not directly involved in intelligence gathering. Some sources, she said, have reportedly been warned they could be fired for even talking to a reporter.

"Day-to-day intimidation of sources is also extremely chilling," she said.

Buzbee said she's frequently asked if the Obama administration, when it comes to transparency, is worse than the administration of President George W. Bush.

"Bush was not fantastic," she said. She added, "The (Obama) administration is significantly worse than previous administrations."

And then, of course, there are the criminal lawsuits. The Obama administration has used the Espionage Act against more journalists and leakers than every other President in history combined... and doubled. And, as of two years ago, he had put media leakers in jail for nearly 50 times as long as all other administrations combined.

That is not supporting investigative reporting. That is threatening and intimidating journalists and their sources. Creating true chilling effects and scaring people away from doing the very work that the President insists the media should be practicing.

Way back in 2011, I saw Daniel Ellsberg speak, and he speculated that a key reason why President Obama was so incredibly hostile to a free and open press was because he was embarrassed by his own actions that they were investigating. Ellsberg pointed out that the previous president, George W. Bush was known for widely abusing the power of his position, but he seemed proud of doing so. President Obama, on the other hand, got elected with promises of moving away from such abuses and restoring civil liberties. But that didn't happen. Things went in the other direction under his watch and his command. So you could understand why the President remains less than keen about leaks and the media digging into things like mass surveillance of Americans, or secret drone bombing campaigns.

It's a shame that the President feels the need to berate reporters over failing to do real investigative reporting, when a big part of the issue is his own administration's concerted effort to make that much more difficult.

Filed Under: espionage act, foia, investigative reporting, journalism, leakers, president obama, transparency, whistleblowing

Two Overlooked Aspects Of Those Leaks About NSA Spying On French Presidents

from the reasons-to-be-cheerful dept

There's been quite a lot of excitement in the press about the latest leaks that the NSA has been spying on not just one French President, but (at least) three of them. As Mike pointed out, this isn't such a big deal, because it is precisely the kind of thing that you would expect the NSA to do -- as opposed to spying on the entire US public, which isn't. There is, though, an aspect that most people have overlooked: the fact that these NSA leaks don't appear to originate from Snowden's stash.

Of course, Mr Crypto himself, Bruce Schneier, did spot it, and pointed out it could be one of his "other" US intelligence community leakers, listed a couple of months ago, or even a completely new one. As that post shows, there are now a few people around that are leaking secret documents, and that's a pretty significant trend, since you might expect enhanced security measures taken in the wake of Snowden's leaks would have discouraged or caught anyone who attempted to follow suit.

That's not the only thing that's interesting about the French documents. As Fabio Chiusi points out in a blog post (original in Italian), they are the latest in a recent series of very rich leaks that include the Sony archives; the Saudi cables; the TPP transparency chapter; and -- not mentioned by Chiusi -- 17 chapters from TISA.

What all those collections have in common is the fact that they came from WikiLeaks. As Chiusi rightly emphasizes, after a period when WikiLeaks seemed to have lost its ability to release important material -- and thus its relevance -- the organization is beginning to hit its stride again. Coupled with the fact that there are half-a-dozen or so people who are leaking intelligence materials, that development offers hope that things are really beginning to look up on the transparency front.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: ed snowden, leakers, leaks, nsa, other leakers, surveillance
Companies: wikileaks

Compare And Contrast Prosecution And Sentences Of David Petraeus With Government Whistleblowers

from the high-court,-low-court dept

Former CIA director David Petraeus received his sentence yesterday for the sweetheart plea deal he struck with the Justice Department after he was discovered to have leaked highly classified information to his biographer and lover Paula Broadwell. As was widely anticipated, the celebrated general received no jail time and instead got only two-years probation plus a $100,000 fine. (As journalist Marcy Wheeler has pointed out, that's less than Petraeus receives for giving one speech.)

The gross hypocrisy in this case knows no bounds. At the same time as Petraeus got off virtually scot-free, the Justice Department has been bringing the hammer down upon other leakers who talk to journalists—sometimes for disclosing information much less sensitive than Petraeus did. It's worth remembering Petraeus' leak was not your run-of-the-mill classified information; it represented some of the most compartmentalized secrets in government. Here's how the original indictment described the eight black books Petraeus handed over to Paula Broadwell:

The books "collectively contained classified information regarding the identifies of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings… and discussions with the president of the United States."

While Petraeus' supporters claim none of this information was ever released to the public after he leaked it to Broadwell, that does not matter in leak cases. You can just ask former CIA officer John Kiriakou, who disclosed the names of two supposedly undercover CIA officers to a researcher. The names were never published, but Kiriakou still got thirty months in jail. 

Let's also not forget that David Petraeus lied to FBI officials when they questioned him about his leak. For a reason the Justice Department never explained, he wasn't charged for lying at all. As the New York Times pointed out today, "Lying to federal agents is a felony that carries a sentence of up to five years in prison. The Justice Department has used that charge against terrorists, corrupt politicians and low-level drug dealers." Just apparently not former CIA directors.

Petraeus' deal comes just days after federal prosecutors recommended another sentence to a convicted leaker who worked for the same Central Intelligence Agency—Jeffrey Sterling. In Sterling's case the prosecutors are calling for twenty-four years of prison time. Sterling was convicted of leaking information to Pulitzer Prize-winning reporter James Risen about a botched CIA mission that occurred almost two decades ago. The lawyer for former State Department official Stephen Kim, currently in jail for leaking innocuous information to Fox News' James Rosen, has also objected to the "profound double standard" in Petraeus' case versus Kim's.

To be fair, the rank-and-file at the FBI and Justice Department seem to recognize how egregious the hypocrisy surrounding Petraeus' case is: while Attorney General Eric Holder himself signed off on the lenient deal, he reportedly did so over strenuous objections from FBI and DOJ officials.

Ultimately, no one should be charged under the Espionage Act for leaking information to journalists, but if the government is going to bring charges against low-level officials, it has a responsibility to do so against high-ranking generals as well. And actually, the Justice Department's reasoning behind not seeking a trial for Petraeus is quite telling for just how unjust the Espionage Act is. As the New York Times reported:

[W]ithout a deal, the Justice Department would have faced the prospect of going to trial against a decorated war hero over a disclosure of secrets that President Obama himself said did not harm national security. Plus, a trial would require the government to reveal some of the classified information.

The Justice Department's fear about an embarrassing trial is one the most egregious aspects of Espionage Act prosecutions against leakers and whistleblowers: defendants can be found guilty even if there was no damage to national security at all. It's not one of the elements of the crime, so prosecutors don't have to prove it. By forgoing a trial because they are afraid of graymail, the government is also basically saying to future leakers "if you're going to leak classified information, make sure it's something really classified." 

It's possible that Petraeus' deal was so egregious that this could be good news for other leakers. The Daily Beast's Kevin Mauer argued as much earlier today:

Petraeus's relatively light punishment will likely have lasting ramifications on future leak cases, national security lawyers said. They argue the government is cutting its own throat by offering him a more lenient sentence in the wake of harsher penalties to other leakers and creating a double standard that can be exploited by defense attorneys in future cases.

However, given the government's unrelenting pursuit of Sterling, there is little chance of this having a lasting effect. Unfortunately, the Petraeus case will go down in history as one of the most blatant examples of the inherent unfairness of leak trials and the two-tiered system of justice that whistleblowers often face. 

Reposted from the Freedom of the Press Foundation

Filed Under: criminal justice, david petraeus, high court, leakers, leaking, low court, sentences, whistleblowing

Welcome To The New League Of Leakers -- Courtesy Of Edward Snowden

from the courage-is-contagious dept

Whistleblowers are hardly a new phenomenon -- Wikipedia lists dozens of the more famous ones, going back to the 18th century. There have also been important government whistleblowers before -- people like Daniel Ellsberg, William Binney, Thomas Drake and John Kiriakou. Chelsea Manning's leak was on a huge scale, and garnered enormous media attention. And yet there is no doubt that it is Edward Snowden who has really changed the whistleblowing world most dramatically.

Because of what he leaked, and the way he leaked it -- the fact that he has evaded arrest, and is still free, even if living a somewhat circumscribed existence in Russia -- Snowden has ignited debates at multiple levels. As well as the obvious ones about surveillance, privacy, power and democracy, there's another one around whistleblowing itself, which has already had important knock-on effects. Evidence of that comes in an interesting post by Bruce Schneier, where he tots up the likely number of leakers that have recently started to provide information about the US intelligence community. Alongside Manning and Snowden, he thinks there are probably five more:

Leaker #3: The person who leaked secret documents to Jake Appelbaum, Laura Poitras and others in Germany: the Angela Merkel surveillance story, the TAO catalog, the X-KEYSCORE rules.

...

Leaker #4: "A source in the intelligence community," according to the Intercept, who leaked information about the Terrorist Screening Database, the "second leaker" from the movie Citizen Four

...

Leaker #5: Someone who is leaking CIA documents.

...

Leaker #6: The person who leaked secret information about WTO spying to The Intercept and the New Zealand Herald

...

Leaker #7: The person who just leaked secret information about the U.S. drone program to The Intercept and Speigel.

Schneier's post gives links for all those stories, as well as his reasons for thinking they are likely to be separate people (although he notes numbers 3 and 7 might be the same person.) As he concludes:

Way back in June 2013, Glenn Greenwald said that "courage is contagious." He seems to be correct.

It's almost as if people taking extremely high risks to leak important information about dubious activities by the US intelligence community has become normal. That's really pretty remarkable, and show just how big Snowden's impact has been.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: ed snowden, leakers, leaking, whistleblower, whistleblowers, whistleblowing

FBI Abruptly Walks Out On Senate Briefing After Being Asked How 'Insider Threat' Program Avoids Whistleblowers

from the because-the-whole-program-is-about-whistleblowers dept

While we've been disappointed that Senator Chuck Grassley appears to have a bit of a double standard with his staunch support for whistleblowers when it comes to Ed Snowden, it is true that he has fought for real whistleblower protections for quite some time. Lately, he's been quite concerned that the White House's "Insider Threat Program" (ITP) is really just a cover to crack down on whistleblowers. As we've noted, despite early promises from the Obama administration to support and protect whistleblowers, the administration has led the largest crackdown against whistleblowers, and the ITP suggests that the attack on whistleblowers is a calculated response. The program documentation argues that any leak can be seen as "aiding the enemy" and encourages government employees to snitch on each other if they appear too concerned about government wrong-doing. Despite all his high minded talk of supporting whistleblowers, President Obama has used the Espionage Act against whistleblowers twice as many times as all other Presidents combined. Also, he has never -- not once -- praised someone for blowing the whistle in the federal government.

Given all of that, Senator Grassley expressed some concern about this Insider Threat Program and how it distinguished whistleblowers from actual threats. He asked the FBI for copies of its training manual on the program, which it refused to give him. Instead, it said it could better answer any questions at a hearing. However, as Grassley explains, when questioned about this just 10 minutes into the hearing, the FBI abruptly got up and left:

Meanwhile, the FBI fiercely resists any efforts at Congressional oversight, especially on whistleblower matters. For example, four months ago I sent a letter to the FBI requesting its training materials on the Insider Threat Program. This program was announced by the Obama Administration in October 2011. It was intended to train federal employees to watch out for insider threats among their colleagues. Public news reports indicated that this program might not do enough to distinguish between true insider threats and legitimate whistleblowers. I relayed these concerns in my letter. I also asked for copies of the training materials. I said I wanted to examine whether they adequately distinguished between insider threats and whistleblowers.

In response, an FBI legislative affairs official told my staff that a briefing might be the best way to answer my questions. It was scheduled for last week. Staff for both Chairman Leahy and I attended, and the FBI brought the head of their Insider Threat Program. Yet the FBI didn’t bring the Insider Threat training materials as we had requested. However, the head of the Insider Threat Program told the staff that there was no need to worry about whistleblower communications. He said whistleblowers had to register in order to be protected, and the Insider Threat Program would know to just avoid those people.

Now I have never heard of whistleblowers being required to “register” in order to be protected. The idea of such a requirement should be pretty alarming to all Americans. Sometimes confidentiality is the best protection a whistleblower has. Unfortunately, neither my staff nor Chairman Leahy’s staff was able to learn more, because only about ten minutes into the briefing, the FBI abruptly walked out. FBI officials simply refused to discuss any whistleblower implications in its Insider Threat Program and left the room. These are clearly not the actions of an agency that is genuinely open to whistleblowers or whistleblower protection.

And yes, it's equally troubling that the FBI insists that as long as someone "registers" as a whistleblower, the FBI will suddenly, magically agree to stop investigating them as a "threat." We already know that's almost certainly bullshit. The stories of Thomas Drake and John Kiriakou are both clear examples of whistleblowers, who then had the DOJ search through basically everything they'd ever done to try to concoct some sort of Espionage Act case against them. In both cases, the eventual charges were totally ridiculous and unrelated to the whistleblowing they had done, but clearly the only reason they had been investigated was because of their status as whistleblowers. Drake was charged with having a classified document, which was just a meeting agenda and was both improperly classified and then declassified soon after. Kiriakou was charged with revealing the name of a CIA operative to a reporter, where the person in question was already widely known to journalists as working for the CIA.

Meanwhile, while Grassley still hasn't come out in support of Snowden as a whistleblower, he does seem reasonably concerned that James Clapper's plans to stop the next Snowden will have severe consequences for whistleblowers:

Director of National Intelligence James Clapper seems to have talked about such procedures when he appeared before the Senate Armed Services Committee on February 11, 2014. In his testimony, he said:

We are going to proliferate deployment of auditing and monitoring capabilities to enhance our insider threat detection. We’re going to need to change our security clearance process to a system of continuous evaluation. . . . What we need is . . . a system of continuous evaluation, where . . . we have a way of monitoring their behavior, both their electronic behavior on the job as well as off the job, to see if there is a potential clearance issue. . . .

Director Clapper’s testimony gives me major pause. It sounds as though this type of monitoring would likely capture the activity of whistleblowers communicating with Congress.

As Marcy Wheeler notes in her post (linked above, which called my attention to all this), by declaring war on whistleblowers, the administration is almost guaranteeing that many fewer will use "official channels" to blow the whistle. That just makes them targets with the likelihood of getting no results. Instead, all this does is incentivize people to go the Chelsea Manning/Ed Snowden route of going directly to journalists to make sure the stories get out.

Filed Under: chuck grassley, ed snowden, fbi, insider threat program, leakers, whistleblower protections, whistleblowers

Feds Took Reporter's Notes During Unrelated Search, After They Spotted Documents She Had Obtained Via FOIA

from the weak-excuses dept

Remember how the feds said they were going to be more careful about respecting freedom of the press and such? Not that anyone really expected that to happen, but late last week there was a scary report about how DHS officials and Maryland police were sent to do a search of Paul Flanagan's house to make sure he had no guns -- since he's been legally prohibited from owning a gun due to previous legal issues. But, while in the house, the officials apparently searched Flanagan's wife's documents and seized a bunch. That's a problem because his wife, Audrey Hudson, is a journalist and they took a bunch of her private notes, many of which revealed journalistic sources.

Hudson claims that the search concerning her husband was nothing more than a ruse to uncover details of government sources she had quoted in a recent article about Air Marshals. While not definitive, there appear to be an awful lot of coincidences that lead to the seizure of her documents. First, one of the people on the "search" was with the Coast Guard Investigative Services, and the Federal Air Marshals are a part of the Coast Guard. Admittedly, Hudson's husband, Flanagan, works for the Coast Guard. However, the investigator who did the search asked Hudson if she had authored that particular article, so he was well aware of it going in. Furthermore, the search warrant was just about guns, so it seems odd that they'd go searching her computer. On top of that, the "excuse" given by the Coast Guard after all of this is incredibly flimsy:

"In the course of a joint Federal & Maryland State Police investigation, a lawful search warrant was served on August 6, 2013 in Shadyside, MD. The Coast Guard Investigative Service (CGIS) was asked to participate since the search involved a Coast Guard employee. During the course of the search, the CGIS agent discovered government documents labeled FOUO - For Official Use Only (FOUO) and LES - Law Enforcement Sensitive. The files that contained these documents were cataloged on the search warrant inventory and taken from the premises. The documents were reviewed with the source agency and determined to be obtained properly through the Freedom of Information Act. The CG employee was notified that the documents were cleared and the CG employee picked them up after signing for the documents."

Basically, for no clear reason, they decided that even though they were looking for guns, they would start rifling through her documents, and then seize them, even though they had been obtained through perfectly legal means. It is entirely possible that this was all coincidental, but it certainly would seem to create some fairly significantly chilling effects, yet again, for reporters.

Filed Under: audrey hudson, coast guard, dhs, foia, leakers, reporters, search, whistleblowers

Federal Official Declares That Anyone Who Speaks Out Against Lie Detector Tests Should Be Criminally Investigated

from the insanity dept

The Obama administration's war on whistleblowers was already fairly crazy, what with its official designation of "leakers" as "aiding the enemy," but now apparently it's extending even further. Federal agents have now launched criminal investigations into some instructors who claim they can teach you to beat a lie detector test, all done under the mandate of the war against whistleblowers.

Federal agents have launched a criminal investigation of instructors who claim they can teach job applicants how to pass lie detector tests as part of the Obama administration’s unprecedented crackdown on security violators and leakers.

The criminal inquiry, which hasn’t been acknowledged publicly, is aimed at discouraging criminals and spies from infiltrating the U.S. government by using the polygraph-beating techniques, which are said to include controlled breathing, muscle tensing, tongue biting and mental arithmetic.

Methods for how to beat lie detector tests have been around for ages, and they are unreliable to begin with — so much so that many experts and groups have expressed doubt about polygraphs or disavowed them entirely. The National Research Council, the National Academy of Sciences, the Congress Office of Technology Assessment, the American Psychological Association, the Supreme Court — the list of doubters goes on and on, and any discussion of the question inevitably covers the ways people intentionally trick the test, to the point that these methods are practically common knowledge. Even Mythbusters has tested whether or not you can beat the polygraph, as has Penn & Teller: Bullshit! in an episode where they taught volunteers how to beat a test on camera. I wonder if these shows should now be investigated as well?

Either way, it seems like a huge stretch to claim that merely teaching potential methods for beating a lie detector should be considered a crime. At the very least, that seems to test the bounds of the First Amendment. One of the instructors targeted has already plead guilty, but to "obstructing an agency proceeding and wire fraud," while the feds are pushing for two years in jail for the other one. While some of the details are under seal, it appears that federal agents basically set up a "sting" operation, in which they induced the two people to teach them how to trick a polygraph, and in the process "admitted" to the instructors certain crimes that they were involved in. This sounds a like borderline entrapment. In fact, the report notes that the people who "sought out" the information from the two men who were investigated generally just wanted books or videos -- not the "one on one" lessons the feds set up.

The impact of all of this is creating serious chilling effects just on those who oppose the use of polygraphs in general:

Some opponents of polygraph testing, including a Wisconsin police chief, said they were concerned that the federal government also might be secretly investigating them, not for helping criminals to lie but for being critical of the government’s polygraph programs. In his speech to the American Association of Police Polygraphists, Schwartz said he thought that those who “protest the loudest and the longest” against polygraph testing “are the ones that I believe we need to focus our attention on.”

The "Schwartz" quoted there is John Schwartz, a Customs and Border Patrol official who is involved in the investigations. So, yeah, that's a federal government agent specifically claiming that he wants to focus his criminal investigatory power on those who speak out against polygraph testing. If I were to take a polygraph test right now it would note that I'm telling the truth when I say that sounds a hell of a lot like a police state, where federal agents publicly declare that they're going to use their criminal investigation powers to target people who oppose a program they support. Talk about chilling effects and a massive First Amendment violation.

To have a federal official, with investigatory power, whose already involved in existing investigations flat out say that he wants to target those who speak out, is incredible. That's not the way our government is supposed to work.

Filed Under: beat a lie detector, criminal investigations, federal employees, investigations, leakers, lie detectors, polygraphs