Chris Hedges et. al Win Another Round On the NDAA

You may remember back in mid May Chris Hedges, Dan Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, Kai Wargalla, Birgetta Jonsdottir and the US Day of Rage won a surprising, nee stunning, ruling from Judge Katherine Forrest in the Southern District of New York. Many of us who litigate felt the plaintiffs would never even be given standing, much less prevail on the merits. But, in a ruling dated May 16, 2012, Forrest gave the plaintiffs not only standing, but the affirmative win by issuing a preliminary injunction.

Late yesterday came even better news for Hedges and friends, the issuance of a permanent injunction. I will say this about Judge Forrest, she is not brief as the first ruling was 68 pages, and todays consumes a whopping 112 pages. Here is the setup, as laid out by Forrest (p. 3-4):

Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs’ activities (about which the Government had known–and indeed about which the Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to § 1021(b)(2). Following the March hearing (and the Court’s May 16 Opinion on the preliminary injunction), the Government fundamentally changed its position.

In its May 25, 2012, motion for reconsideration, the Government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would not subject plaintiffs to military detention under § 1021. The Government did not–and does not–generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the Read more

DOD Gets Awfully Sensitive When They’re Cornered

Just about every outlet that reported on George Little’s whine about Matt Bissonnette’s book yesterday claimed that Little had said there was “classified” information in the book.[all emphasis in this post mine]

CNN: A Pentagon official said Tuesday that a former Navy SEAL who helped kill Osama bin Laden included classified material in his new book and did not follow protocol for pre-publication review.

AP: George Little said that an official review of the book, “No Easy Day,” determined that it reveals what he called “sensitive and classified” information.

ABC: Top Pentagon officials said today that a controversial firsthand accountof the nighttime raid that killed Osama bin Laden written by a former U.S. Navy SEAL reveals classified information and could endanger other special operations servicemen.

Fox: “Sensitive and classified information is contained in the book,” Pentagon spokesman George Little told reporters in Washington. “It is the height of irresponsibility not to have this material checked.”

The reality is far more telling. Little did not commit to saying there was classified information in the book until cornered after repeated questions by the press. The transcript is worth reviewing in more detail since, if this ever gets litigated, Little’s hesitation to claim the book included classified information will become an issue.

In response to the first question on Bissonnette’s book, Little gave what was probably his rehearsed answer to it. He focused on Bissonnette’s failure to do a prepublication review (remember, Bissonnette’s lawyer, Bob Luskin, says such a review was recommended but not required). And when discussing the actual review, Little said there was sensitive information; only later, speaking more generally, did Little say “sensitive and classified.”

George, on the separate issue, on the SEAL book, has the department made a decision yet on whether to take any legal action regarding this and on whether or not there is classified material in the book, and if there — if, indeed, you’ve determined there is, can you tell us what it is and what action may or may not be taken at this point?

MR. LITTLE: Thank you very much, Lita, for that question. We continue to review our options when it comes to legal accountability for what in our estimation is a material breach of nondisclosure agreements that were signed by the author of this book.

With respect to the information that’s contained in the book, people inside the department have read it. And we do have concerns about some of the sensitive information that we believe is contained in it. I’m not going to get out ahead of what the process going forward might be and what options we might decide to pursue, but this is a very serious concern that we have.

When it comes to sensitive special operations missions, such as the operation that took down Osama bin Laden, it is important that those who are involved in such operations take care to protect sensitive and classified information. And if I had been part of the raid team on the ground and I had decided to write a book about it, it wouldn’t have been a tough decision for me to submit the book for pre-publication review. That is common sense. It’s a no-brainer. And it did not happen.

Thus far into the process, the press wasn’t buying Little’s slight of hand. He gets a followup on the sensitive/classified distinction, which he dodges by focusing on pre-publication review again.

Q: Will you — just as a follow-up — you made a distinction between sensitive and classified. So is the determination that it is sensitive information there and not classified? And also, is there any determination on whether the book will be sold on — on bases (off mic)

MR. LITTLE: There’s been no directive from this department to withhold sale of the book from military exchanges. This book is being made widely available in bookstores and online. It is not our typical practice to get into the business of deciding what and what does not go on bookshelves in military exchanges. But that doesn’t mean in any way, shape or form that we don’t have serious concerns about the fact that this process of pre-publication review was not followed.

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DOD to Give Penguin the WikiLeaks Treatment?

As a number of outlets have reported, DOD has written a threatening letter to Matt Bissonnette, the Navy SEAL whose memoir comes out next week.

But I think they’re misunderstanding part of the nature of the threat (though Mark Zaid, a lawyer who has represented a lot of spooks in cases like this one, alludes to it here, which I’ll return to). Here are, in my opinion, the two most important parts of the letter. First, DOD’s General Counsel Jeh Johnson addressed it to Penguin’s General Counsel as the custodian for the pseudonymous writer he makes clear he knows the real identity of elsewhere in the letter.

Mr. “Mark Owen”

c/o Alexander Gigante, Esquire

General Counsel

Penguin Putnam, Inc.

That, by itself, is not a big deal. But it does mean Johnson knows Penguin’s GC will read this letter.

More importantly, here’s how Johnson ended the letter:

I write to formally advise you of your material breach and violation of your agreements, and to inform you that the Department is considering pursuing against you, and all those acting in concert with you, all remedies legally available to us in light of this situation. [my emphasis]

That is, DOD is also considering legal remedies against “those acting in concert” with Bissonnette.

As far as we know, the only people acting in concert with Bissonnette are at Penguin’s imprint of Dutton. Thus, as much as this is a threat to Bissonnette, it’s also a threat to Penguin.

Which would make sense because–as Zaid points out–the government has been trying to push the application of the Espionage Act to those sharing classified information since the AIPAC trial.

Mark Zaid, a lawyer who has represented a variety of former military and intelligence officials in disclosure and leak cases, said the Johnson letter looked like a signal that the Pentagon was “contemplating a test case against the publisher or media for disclosing classified information.”

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Matt Bissonnette’s Information Operation Against a Broken System of Secrecy

“We all knew the deal. We were tools in the toolbox, and when things go well they promote it. They inflate their roles.” –Mark Bissonnette

HuffPo and AP/CBS have an initial description of how Matt Bissonnette’s story of the Osama bin Laden killing differs from the story the Administration has told. While the details are interesting, I expect we can learn as much about how a well-trained SEAL manages InfoOps as we learn about the events of Bissonnette’s life from the book.

As I pointed out yesterday, once DOD got a copy of the book, the publisher announced it would almost double the initial print run and advance the publication date by a week–making it much harder for DOD to pre-empt the unredacted publication by buying up the copies. Bissonnette has also already planned to give at least some of the proceeds of the book to the families of SEALs who have died (something that former CIA officer Ishmael Jones also did), meaning DOD can’t punish him by seizing his earnings.

And now, with just the bits of information already public about the book, Bissonnette has made it very difficult for the government to prosecute him–and certainly not before the election.

The most interesting detail that both HuffPo and AP report is that Osama bin Laden never put up a fight.

“We were less than five steps from getting to the top when I heard suppressed shots. BOP. BOP,” writes Owen. “I couldn’t tell from my position if the rounds hit the target or not. The man disappeared into the dark room.”

Team members took their time entering the room, where they saw the women wailing over Bin Laden, who wore a white sleeveless T-shirt, loose tan pants and a tan tunic, according to the book.

Despite numerous reports that bin Laden had a weapon and resisted when Navy SEALs entered the room, he was unarmed, writes Owen. He had been fatally wounded before they had entered the room.

“Blood and brains spilled out of the side of his skull” and he was still twitching and convulsing, Owen writes. While bin Laden was in his death throes, Owen writes that he and another SEAL “trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.”

While I’m sure there are many details that are of greater tactical sensitivity, this one differs just enough from the previously official version that it makes it toxic to pursue. After all, prosecuting Bissonnette would require acknowledging that Bissonnette violated his non-disclosure agreement, which would in turn requiring admitting to the truth of what he presents in his book. Read more

Dear CIA: Maybe It’s Time to Spring for New PO Boxes?

I’ve suggested since the “names” of the two “trainers” ambushed in Mexico last Friday were released they were likely covers.

Not only are they apparently covers, but one of them was tied to a PO Box whose prior user had already been publicly tied to the CIA’s rendition program.

But an examination of public records suggests that the name used by one of the men may be fictitious, with similarities to others created by the CIA to provide cover for its officers overseas.

Shortly after the shooting, major Mexican news organizations identified one of the U.S. officials as Stan D. Boss, a name associated with a post office box at a Dunn Loring mail facility tied to at least one previous CIA cover identity that was publicly exposed. Records indicate that Boss was issued a Social Security number in Texas in 2004. Beyond that, the records are largely blank, with not even a date of birth associated with the name.

That same Dunn Loring post office is linked to dozens of other names that have similarly scant records and to Social Security numbers issued around the same time. Among the previous holders of post office boxes at that location was an individual named Philip P. Quincannon, who apparently does not exist but who was listed as an officer with at least two aviation companies suspected of involvement in CIA rendition flights after the Sept. 11, 2001, attacks.

Call me crazy, but these narcos are pretty shrewd guys. If they discover Stan Dove Boss has been picking up noted rendition guy Philip P. Quincannon’s mail, they might make certain conclusions about what line of work Stan Dove Boss is in (as if the name weren’t already a dead giveaway). And they might show up with 4 cars full of Federales to try to keep Stan Dove Boss off their turf.

Jeebus. It’s bad enough we’re invading Mexico with our spooks. But we’re sending them in with transparent covers.

If by “Fact Check” You Mean “Spy on MoDo”

A funny thing happened when Judicial Watch tried to catch the White House buttering up Kathryn Bigelow and Mark Boal for the Zero Dark Thirty film. It caught CIA doing so.

More embarrassing still, it caught the CIA asking NYT’s spook reporter, Mark Mazzetti, to find out how much Maureen Dowd (pictured here posing as a blogger covering the Prop 8 trial) would expose the CIA’s own involvement in the movie.

It seems some DOD sources had leaked information to MoDo that exposed the CIA.

It was clear that the White House had outsourced the job of manning up the president’s image to Hollywood when Boal got welcomed to the upper echelons of the White House and the Pentagon and showed up recently — to the surprise of some military officers — at a C.I.A. ceremony celebrating the hero Seals.

“This didn’t come from me…and please delete after you read,” Mazzetti wrote when he forwarded MoDo’s entire column to Marie Harf. “See, nothing to worry about”

Except Harf apparently is less skilled at destroying evidence than Jose Rodriguez, cause there the email is, exposing the collaboration between reporter and reportee.

Things got more interesting when NYT Managing Editor Dean Baquet got involved, after Politico’s Dylan Byers asked for comment. Baquet stuck up for Mazzetti.

“The optics aren’t what they look like,” he went on. “I’ve talked to Mark, I know the cirucmstance, and given what I know, it’s much ado about nothing.”

At which point, I suspect, MoDo went apeshit, given the suggestion Baquet left that she routinely shares her work before publication with her colleagues, allowing them to warn others about what she writes. Cause then NYT’s own flack, Eileen Murphy, wrote Byers to assure him this is not, in fact, “much ado about nothing.”

“Last August, Maureen Dowd asked Mark Mazzetti to help check a fact for her column. In the course of doing so, he sent the entire column to a CIA spokeswoman shortly before her deadline. He did this without the knowledge of Ms. Dowd. This action was a mistake that is not consistent with New York Times standards.”

Consider: this is the best face the Gray Lady can put on this rather cozy relationship with the nation’s spy agency, claiming that Mazzetti’s spying on MoDo for the CIA was a “mistake.”

But what I want to know is this: is this how the NYT conducts fact checks? Or just fact checks of its MoDos and other columnists? “Here, beat writer. I’m writing a column suggesting Obama has a very small penis. Can you ‘fact check’ it and make sure I’ve got the details correct?” And how often do these “fact checks” get sent off as a beat sweetener in the information economy of the beltway?

Publisher’s Shock and Awe

As I mentioned yesterday, the Pentagon has now gotten a copy of Osama bin Laden kill team member Matt Bissonnette’s book, No Easy Day. They’re reviewing it for classified information.

So today, the publisher announced that it has almost doubled its print run–from 300,000 to 575,000–and moved up publication a week.

In response to a crush of media attention, criticism and consumers clamoring to buy the book, the publisher behind the first-hand account of the Navy SEALs raid that killed Osama bin Laden has decided to move up the release date to next Tuesday.

Dutton, the imprint of Penguin that acquired the book in secret, said that “No Easy Day,” which will appear under the pseudonym Mark Owen, will go on sale Sept. 4, a week ahead of the planned date, Sept. 11.

“The publisher now feels it is important to put ‘No Easy Day’ on sale and let the book speak for itself,” Dutton said in a statement.

[snip]

Christine Ball, a spokeswoman for Dutton, also said on Tuesday that the publisher had increased the planned print run to 575,000 hardcover copies from the original total, 300,000.

And while Dutton claims these moves are simply a response to the media attention, I’m guessing they’re primarily designed to make it harder for DOD to affect publication of the book.

Remember what happened to Anthony Shaffer when the Defense Intelligence Agency found sensitive information in his Operation Dark Heart after it had already been printed.

Defense Department officials are negotiating to buy and destroy all 10,000 copies of the first printing of an Afghan war memoir they say contains intelligence secrets, according to two people familiar with the dispute.

[snip]

Release of the book “could reasonably be expected to cause serious damage to national security,” Lt. Gen. Ronald L. Burgess Jr., the D.I.A. director, wrote in an Aug. 6 memorandum. He said reviewers at the Central Intelligence Agency, National Security Agency and United States Special Operations Command had all found classified information in the manuscript.

In that case, DOD paid $47,300 to take 200 passages out of fewer than 10,000 copies.

The upshot was that the Pentagon paid $47,300 in taxpayer money for the 9,500 books that constituted almost the entire first print run of the book and had the volumes destroyed Sept. 20, while the publisher, Thomas Dunne Books, an imprint of St. Martin’s Press, issued a second edition Sept. 24 with roughly 200 words or passages blacked out.

To do the equivalent now–particularly with the doubled print run–would be quite a bit more expensive. And DOD now has just a week to decide what, if anything, they’re going to do about someone completely bypassing their censorship system.

Admiral McRaven: Taxpayers Should Learn about Special Operations from Hollywood Movies

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Most of the coverage of Admiral William McRaven’s letter to the special operations community telling them to shut up has focused on McRaven’s insinuation that the recent flurry of activity stems entirely from a desire for personal or political gain. But I find McRaven’s comments about what forms of publicity about special ops are appropriate just as interesting (thanks to Josh Rogin for linking a copy).

McRaven notes the importance of books on special operations as a learning tool.

Few senior SOF officers have benefited more from reading about the exploits of our legendary heroes than I. My thesis at the Naval Postgraduate School was based on a rigorous examination of the available literature, without which I could never have written my book on “The Theory of Special Operations.”

Most of these books were wonderful accounts of courage, leadership, tough decision making, and martial skill all of which benefited me as I tried to understand of our past and how it could affect missions in the future.

And he suggests that movies “provide public insights into life in special operations … that can’t be garnered anywhere else.”

Movies that portray the heroics of service members are also well worth watching and often provide the public insights into life in special operations or the service that can’t be garnered anywhere else.

Personally, I was motivated to join special operations after watching the movie, “The Green Berets”, starring John Wayne. To this day my Army brethren still wonder where I went wrong…

Countless stories have been told through the medium of film that needed to be told and I am thankful that they were.

Now, I’m grateful that McRaven has criticized OPSEC’s attempt to politicize the Osama bin Laden raid (though it does suggest a double standard). But these comments are rather troubling.

First, note that McRaven’s thesis depends on at least two first person narratives of special ops soldiers–those of Otto Skorzeny and Jonathan Netanyahu (though Netanyahu’s consists of his letters published after his death). So McRaven’s citation of his thesis hardly discredits Matt Bissonnette’s decision to publish his own first person account of his SEAL exploits.

I’m even more troubled by McRaven’s suggestion that we should turn to Hollywood to learn of stories “that need[] to be told.”

One reason he may do so is to legitimize the Administration’s cooperation with the Zero Dark Thirty team. If the Commander of SOCOM suggests Hollywood is the proper venue for special ops stories, it serves to distinguish the Administration’s push for publicity for the Osama bin Laden raid from that of the SEALs. (Though since Bissonnette’s already  shopping his book, I expect McRaven’s position on movies may soon change.)

Of course, in doing so McRaven also suggests that fictional stories are all taxpayers should learn about these “stories that need to be told.” Not just fictional ones, either, but sensational ones. The better to inspire a future head of SOCOM to join the military, just like John Wayne did for McRaven!

Of course, that says taxpayers should only have a false understanding of the wars being fought in their names, which is a profoundly contemptuous view. I have no idea whether Bissonnette’s narrative will be accurate (the Pentagon has gotten a copy and is reading it now, so they may seize it before we get to see). But if it is accurate, why should a Hollywood movie be a more valid telling of the OBL story than the kind of firsthand account McRaven himself has relied upon?

Plus, by endorsing sensational Hollywood narratives, McRaven effectively endorses the kind of special ops hero that would, himself, seek publicity. You can’t have Hollywood serve as the legitimate venue for discussing special operations without feeding the system that would lead a SEAL to want to write his own book and sell the rights to Steven Spielberg. Hollywood created the market for such books; you can’t expect veterans not to feed it.

If the Commander of SOCOM believes the stories of special ops need to be told, then he should declassify them so they can be told in a format that is factual, sober, and complete. This endorsement of Hollywood flicks–while it may serve the Administration’s immediate interests–makes the Administration’s abuse of information asymmetry even worse. It defends not only the Administration getting exclusive control over how to the tell the stories, but suggests it should do so using fictional and sensational means.

The First Rule of the Fight Club…

I’ve been waiting to comment on the news that one of the SEALs that killed Osama bin Laden has a book coming out on September 11.

The publication will undoubtedly be yet another telling episode in our government’s asymmetric treatment of secrecy, but thus far it is too soon to say how. After all, when a SEAL wants to “correct the story,” does he plan to engage in a little JSOC score-settling (I heard rumors the Rangers and the SEALs had competing versions not long after the operation). Will he reveal details that change our understanding of Pakistani knowledge of the operation? Or will he significantly upend the myth Obama’s team has spun about it? All were–and probably still are–possible.

In any case, the book publication will present an interesting challenge for the Obama Administration, which has gone to great lengths to prevent or disincent publication of other books revealing secret information. Nevertheless, the completely arbitrary system for prepublication review seems to encourage people to bypass the system. (This SEAL has already planned to donate much of the proceeds of the book, following a lead set by Ishmael Jones, which takes away one of the tools the government might use against him.)

Finally, there’s the political problem Obama will have. It’ll be hard for the Administration to villainize this SEAL the way it has given others. After all, the SEAL played a key role in half of Obama’s re-election bumper sticker: “Osama bin Laden is dead, GM is alive.” Either he’s a hero for killing OBL, or he’s not, right?

It’s against that background that I read the exposure–first by a Fox News Pentagon reporter, citing “multiple sources,” and then by Craig Whitlock, citing “Pentagon sources”–of the SEAL’s real identity. Given that the Pentagon was sharing (or at least confirming) the SEAL’s identity to the WaPo, then this line from the SOCOM spokesperson is rather ominous.

And Col. Tim Nye, a Special Operations Command spokesman, said the author “put himself in danger” by writing the book.

“This individual came forward. He started the process. Read more

Appeals Court Treats Commissary Gatorade Supplies as a “Clear and Present Danger”

Navy v. Egan–the SCOTUS case Executive Branch officials always point to to claim unlimited powers over classification authority–just got bigger.

Berry v. Conyers extends the national security employment veto over commissary jobs

The original 1988 case pertained to Thomas Egan, who lost his job as a laborer at a naval base when he was denied a security clearance. He appealed his dismissal to the Merit Systems Protection Board, which then had to determine whether it had authority to review the decision to fire him based on the security clearance denial. Ultimately, SCOTUS held that MSPB could not review the decision of the officer who first fired Egan.

The grant or denial of security clearance to a particular employee is a sensitive and inherently discretionary judgment call that is committed by law to the appropriate Executive Branch agency having the necessary expertise in protecting classified information. It is not reasonably possible for an outside, nonexpert body to review the substance of such a judgment, and such review cannot be presumed merely because the statute does not expressly preclude it.

Unlike Egan, the plaintiffs in this case did not have jobs that required they have access to classified information. Nevertheless, plaintiffs Rhonda Conyers (who was an accounting clerk whose “security threat” pertained to personal debt) and Devon Haughton Northover (who worked in a commissary and also charged discrimination) were suspended and demoted, respectively, when the government deemed them a security risk.

In a decision written by Evan Wallach and joined by Alan Lourie, the Federal Circuit held that the Egan precedent,

require[s] that courts refrain from second-guessing Executive Branch agencies’ national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information.

That is, the Federal government can fire you in the name of national security if you have a “sensitive” job, whether or not you actually have access to classified information.

As Timothy Dyk’s dissent notes, the effect of this ruling is to dramatically limit civil service protections for any position the government deems sensitive, both within DOD–where both Conyers and Northover work–and outside it.

Under the majority’s expansive holding, where an employee’s position is designated as a national security position, see 5 C.F.R. § 732.201(a), the Board lacks jurisdiction to review the underlying merits of any removal, suspension, demotion, or other adverse employment action covered by 5 U.S.C. § 7512.

[snip]

As OPM recognizes, under the rule adopted by the majority, “[t]he Board’s review . . . is limited to determining whether [the agency] followed necessary procedures . . . [and] the merits of the national security determinations are not subject to review.”

In doing so, the dissent continues, it would gut protection against whistleblower retaliation and discrimination.

As the Board points out, the principle adopted by the majority not only precludes review of the merits of adverse actions, it would also “preclude Board and judicial review of whistleblower retaliation and a whole host of other constitutional and statutory violations for federal employees subjected to otherwise appealable removals and other adverse actions.” Board Br. at 35. This effect is explicitly conceded by OPM, which agrees that the agency’s “liability for damages for alleged discrimination or retaliation” would not be subject to review. OPM Br. at 25. OPM’s concession is grounded in existing law since the majority expands Egan to cover all “national security” positions, and Egan has been held to foreclose whistleblower, discrimination, and other constitutional claims.

Tracking Gatorade supplies can now represent a “clear and present danger”

There are a couple of particularly troubling details about how Wallach came to his decision. In a footnote trying to sustain the claim that a commissary employee might be a national security threat, Wallach argues that Northover could represent a threat in the commissary by observing how much rehydration products and sunglasses service members were buying.

The Board goes too far by comparing a government position at a military base commissary to one in a “Seven Eleven across the street.”

[snip]

Commissary employees do not merely observe “[g]rocery store stock levels” or other-wise publicly observable information. Resp’ts’ Br. 20. In fact, commissary stock levels of a particular unclassified item – sunglasses, for example, with shatterproof lenses, or rehydration products – might well hint at deployment orders to a particular region for an identifiable unit. Read more