1st Amendment Justice Delayed is Justice Denied for Col. Morris Davis

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Bg32jNgCYAApToACol. Morris Davis is, at least for my money, an American hero. He served and fought not only for his country, but for the Constitution he swore to protect. The subject of what happened to him at the hands of the very government he defended deserves a much longer, and deeper, dive than I have time for in this post. We will likely come back for that at a later date as it seems as if the legal case Col. Davis brought to correct the wrongs done to him will likely go on forever.

And the going on forever part is the subject of this post. Col. Davis was scheduled to have a hearing in United States District Court in Washington DC tomorrow in front of Judge Reggie Walton. But the hearing was postponed. And that is the problem, this is the FOURTEENTH (14th) TIME hearing on Col. Davis’ case has been delayed. One delay was due to a conflict on Judge Walton’s part, and one because the offices of Davis’ attorneys at the ACLU in New York were substantially damaged by Hurricane Sandy. Other than that, the delay has been at the hands of an intransigent and obstreperous DOJ. If the actions of the DOJ in relation to Col. Davis are not “bad faith”, it is hard to imagine what the term stands for.

Now, to be fair, it appears the latest delay was at the unilateral hand of the court, as yesterday’s minute entry order reads:

In light of the fact that potentially dispositive motions remain pending, it is hereby ORDERED that the status hearing currently scheduled for Friday, February 21, at 9:15 a.m. is CONTINUED to a date and time to be determined by the Clerk.

The problem with that is that the “dispositive motions” the court speaks of as being “pending” have been “pending” for a VERY long time, since July of last year. And the case itself has been going on since the complaint was filed on January 8, 2010.

Why is it taking so long you ask? Because of the aforementioned bad faith and obstreperousness of the Department of Justice, that’s why. To get an idea of just what is going on here, a little background is in order. Peter Van Buren gives a good, and relatively brief synopsis:

Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.

Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)

Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done.

Yes, you read that right. Col. Davis was fired from the job he truly loved at the Congressional Research Service because he, on his own time as a private citizen, exercised his First Amendment right to speak. As one of Davis’ pleadings puts it:

Col. Davis was unconstitutionally removed from his position at the Library of Congress’ Congressional Research Service for writing opinion pieces in the Wall Street Journal and the Washington Post expressing his nonpartisan, personal views on the failures of the American military commissions established to try detainees at Guantánamo Bay, Cuba. His speech lies at the very core of the First Amendment and exemplifies the kind of speech that federal courts have been most vigilant in protecting from government retaliation.

The full pleading that quote came from, Col. Davis’ response to the government’s motion for summary judgment (one of the “pending dispositive motions”) can be found here and is a good read if you are interested in more background.

That is exactly what happened and what is at stake. And you do not have to take my word for it, Judge Walton thinks it is a solid and valid claim too. Here is language from Judge Walton in an order in late January 2010, not long after the case was filed:

The Court is satisfied that the plaintiff has established, at least based on the record before the Court at this time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh in his favor. Essentially, the record before the Court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers. Regardless of the defendants’ contention to the contrary, it appears that the content of the plaintiff’s published opinions was one of the reasons, if not the primary reason, he was fired, i.e., because the plaintiff took a position on the prosecution of detainees being housed at the United States military’s Guantánamo Bay facility which the Congressional Research Service felt would call into question its impartially as to any policy recommendation it would make and any research it would conduct on that issue. This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published. The plaintiff’s likelihood of success position therefore is well-founded, at least with respect to the record the Court now has before it. And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights. (citations omitted)

So, there is really no question but that protected First amendment rights were involved, and that Col. Davis was wrongfully fired for exercising them. Makes you wonder why the DOJ would string him out and fight so hard in a case that is only about the rights and not even about the money damages he suffered as a result (that would have to be litigated in a separate action).

As the graphic at the top questions, why is the DOJ willing to give free speech rights to a terrorist at Guantanamo and not to Col. Morris Davis? Bad faith is the answer. Complete, scandalous, bad faith.

Former Professional Journalist Suggests NYT Shouldn’t Pay Its Journalists

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I’m working on a more substantive response to this Ben Wittes post claiming that the NYT’s latest Snowden story doesn’t mean the NSA spies on lawyers.

But I wanted to note how it begins.

Unless the public is really tiring of matters Snowden, the New York Times’s latest is going to stir up the hornet’s nest. “Spying by N.S.A. Ally Entangled U.S. Law Firm,” blares the headline of the story by reporter James Risen and freelancer Laura Poitras—from whom the Times (which insists it never pays for information) sometimes procures Snowden-leaked documents and to whom it gives a byline when it does so. [my emphasis]

The apparent subtext here is that the NYT is paying Laura Poitras not to do journalism on a story she has covered in depth for the last 8 months, but instead for access to documents in her possession (or to use Mike Rogers’ formulation, Poitras is fencing stolen property).

The comment is odd not just because Wittes has not (as far as I know) complained that the NYT also got (or may have in this case — I frankly don’t claim to know these arrangements) Snowden documents directly from the Guardian in a necessary attempt to bypass the UK’s crackdown on press freedom.

Odder still, according to Wittes’ Brookings bio, he worked as a professional journalist for at least a decade, both as a WaPo staffer and as an independent contributor.

Between 1997 and 2006, he served as an editorial writer for The Washington Post specializing in legal affairs. Before joining the editorial page staff of The Washington Post, Wittes covered the Justice Department and federal regulatory agencies as a reporter and news editor at Legal Times. His writing has also appeared in a wide range of journals and magazines including The Atlantic, Slate, The New Republic, The Wilson Quarterly, The Weekly Standard, Policy Review, and First Things.

Therefore I assume he is familiar with the tradition in journalism that when someone reports — even (especially) for a major newspaper as a freelancer — one gets paid.

Except he seems to want to make an exception just in this one case so as to insinuate certain things about Poitras’ reporting.

I do hope all of Wittes’ reporter friends remind him that their profession is still … a profession, and that equating professional journalism with crime sort of puts a damper on the whole freedom of the press thing, not to mention their claim that they should be compensated for their labor.

Disclosure: Obviously, with my affiliation with First Look Media, I do have a tie with Poitras (though not with this story). As an EW post, however, this post has no tie to First Look, and I have talked to neither Poitras nor anyone else at First Look before writing it.

Update: Wittes explains himself at length here (though the *@^$&*# hackers have brought Lawfare down again). It seems Wittes is nostalgic for the time when newspapers and the government had such a cozy relationship the NYT could lie us into catastrophic war in the service of the government.

I confess that I’m troubled by the power dynamics at work—for reasons that I’m sure will not endear me to my Twitter critics: I believe in institutional media. I believe in editors. And while I also deeply believe in the proliferation of voices that new media has enabled, I don’t like it that Greenwald, Gellman, and Poitras have such enormous leverage against big media organizations which I expect to make responsible publishing decisions. Put simply, I am uncomfortable with the unaccountable power that this arrangement gives people like Poitras over organizations like the New York Times.

Friday News Dump Not Dead Yet: Stephen Kim Guilty Plea

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Just when Kevin Drum declared the “Friday News Dump” dead, comes proof news of said death was greatly exaggerated.

As Josh Gerstein and others have reported, the plea will be entered this afternoon:

Under the terms of the agreement, Kim will plead guilty to a single felony count of disclosing classified information to Rosen in June 2009, and serve a 13-month prison sentence. Judge Colleen Kollar-Kotelly would have to accept the sentence or reject it outright?, in which case Kim could withdraw his plea. Kim would also be on supervised release for a year, but would pay no fine.

Judge Kollar-Kotelly is expected to accept the guilty plea at today’s hearing, but will not impose a sentence until sometime later.

Well, that is kind of a big deal dropped out of nowhere on a Friday afternoon.

As you may recall, this is the infamous case where the Obama/Holder DOJ was caught classifying a journalist, James Rosen of Fox News, as an “aider and abettor” of espionage. As the Washington Post reported, the scurrilous allegation was clear as day in a formal warrant application filed as an official court document:

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.

[snip]

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

Of course, the fully justifiable uproar over the Rosen treatment by DOJ eventually led to “new guidelines”, being issued by the DOJ. The new guidelines are certainly a half step in the right direction, but wholly unsatisfactory for the breadth and scope of the current Administration’s attack on the American free press.

But now the case undergirding the discussion in the Stephen Kim case will be shut down, and the questions that could play out in an actual trial quashed. All nice and tidy!

Frankly, I have mixed emotions about the reported Kim plea itself. It is, all in all, a pretty good deal for Kim and his attorney, the great Abbe Lowell. The case is done, bad precedent does not get etched into a jury verdict and appeal, and the nightmare has an end in sight for the defendant, Stephen Kim. All things considered, given the seriousness of the espionage and false statement charges in the indictment, 13 months is a good outcome. And it is not a horrible sentence to have as a yardstick for other leakers (were I Ed Snowden and Ben Wizner, I would like this result). By the same token, the damage done by the ridiculous antics and conduct of the DOJ in getting to this point is palpable. It will leave a stain that won’t, and shouldn’t, go away.

That still leaves the matter of Jeffrey Sterling, and reporter James Risen, though. Whither DOJ on that? And it is an important question since the much ballyhooed and vaunted “New Media Policies” announced by DOJ left wide open the ability to force Risen (and others that may some day be similarly situated) to testify about his sources of face jail for contempt.

Mike Rogers Aims to Criminalize One of the Main Things that Affords Journalists Protections: Getting Paid

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Remember DOJ’s efforts to placate journalists (rather stunningly, in retrospect, rolled out a month after the first Edward Snowden leaks)?

As I noted at the time, DOJ’s new protections for the press applied not to the act of journalism, but rather to members of the news media. DOJ’s own Domestic Investigations and Operations Guide requires institutional affiliation before they’ll treat someone as a journalist.

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

[snip]

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional. [my emphasis]

According to the DOJ, then, you have to get paid (preferably by an institution recognized to be a press) to be afforded heightened First Amendment protection as a journalist.

Except now House Intelligence Chair Mike Rogers wants to criminalize that — one of the main things that warrants you protection by DOJ as a journalist, getting paid — by calling it “fencing stolen material.”

REP. ROGERS: You — there have been discussions about selling of access to this material to both newspaper outlets and other places. Mr. Comey, to the best of your knowledge, is fencing stolen material — is that a crime?

DIRECTOR JAMES COMEY: Yes, it is.

REP. ROGERS: And would be selling the access of classified material that is stolen from the United States government — would that be a crime?

DIR. COMEY: It would be. It’s an issue that can be complicated if it involves a news-gathering and news promulgation function, but in general, fencing or selling stolen property is a crime.

REP. ROGERS: So if I’m a newspaper reporter for — fill in the blank — and I sell stolen material, is that legal because I’m a newspaper reporter?

[snip]

REP. ROGERS: And if I’m hocking stolen classified material that I’m not legally in possession of for personal gain and profit, is that not a crime?

DIR. COMEY: I think that’s a harder question because it involves a news-gathering functions — could have First Amendment implications. It’s something that probably would be better answered by the Department of Justice.

REP. ROGERS: So entering into a commercial enterprise to sell stolen material is acceptable to a legitimate news organization?

DIR. COMEY: I’m not sure I’m able to answer that question in the abstract.

REP. ROGERS: It’s something we ought to think about, is it not?

DIR. COMEY: Certainly.

So you’re not a journalist (and get no protections) if you don’t get paid. But if you do get paid, you’re fencing stolen property.

I do hope the traditional press recognizes the danger in this stance.

China’s Media Protectionism

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The other day, NYT’s great ombud Margaret Sullivan wrote a post on the difficulties it and other media outlets are having with China.

• Last year, The Times published a story by David Barboza about the enormous wealth of China’s ruling family. The article won a Pulitzer Prize — and caused the Chinese government to shut down The Times’s website in China, an important part of its growth as a global business, at a cost of about $3 million in lost revenue to The Times so far.

[Click through for Sullivan’s account of the dispute between NYT and Bloomberg over whether the latter killed a story critical of China’s ruling elite.]

• Fortune magazine reported last week that Chinese authorities barged into Bloomberg News offices in Shanghai and Beijing to conduct inspections shortly after The Times wrote about the disputed and still unpublished article. Chinese officials also demanded an apology from Mr. Winkler, Fortune reported. Mr. Winkler has built Bloomberg News into a top-flight news organization, one that has clearly done some of the best reporting from China. Publicly, Bloomberg has continued to say that its article was held back for more reporting, not permanently killed. One of the reporters of that article, Michael Forsythe, was suspended from Bloomberg; he later left the company. It would not be surprising if Mr. Forsythe soon joined the reporting staff of The Times.

• American reporters in China are having problems getting their residency visas renewed and soon may be forced to leave the country. What once was “an annual nonevent” has become “a very big worry,” said Jill Abramson, the executive editor at The Times. “I’m concerned that we won’t be able to do the unfettered coverage we need to do for our readers.”

The Times has a dozen people reporting on China who have New York Times accreditations from the Chinese government, including a photographer and a videographer. All are in Beijing except Mr. Barboza, who is based in Shanghai. The Times also has several correspondents and an editing operation in Hong Kong.

• The websites of The Wall Street Journal and Reuters were both recently blocked, and Bloomberg’s has been blocked for many months. And after officials ordered some companies to stop paying for Bloomberg’s data terminals — central to the company’s distinctive business model — the growth in sales slowed in China, a major potential market.

These are two different types of activity (or maybe three). There’s the refusal to let reporters report freely in China, which has the effect of making it harder to document elite corruption. There’s the refusal to let media outlets distribute their works in China, which has both a censorship and a business effect (which adds up to millions in revenue, according to Sullivan). And then there’s China discouraging companies from paying for Bloomberg terminals, which is much closer to withholding a “hard” market than a “soft” one. (Chinese traders can still get the same data, just not in that convenient form.) This last category is very likely the most costly one for Bloomberg (indeed, it may explain why it is gutting its investigative journalism) though I have yet to see hard data on how costly it is.

These are not new problems.

Google already faced the choice of abiding by China’s censorship and spying requirements or losing access to the market (it’s worth noting that China found Google access more threatening to its power than real press coverage, at least up until now).

And a range of manufacturing and content companies have had to choose between entering the lucrative and growing Chinese market and abiding by certain rules. Of the media companies, only Google has likely been exposed to the kind of intellectual property risks implicit in — but not explicitly admitted — in doing business in China.

That is, for decades, American companies have faced the choice of doing business in China with real limits or forgoing one of the fastest growing markets.

And, as happened before with digital technology, the media outlets are now being exposed to the same difficult demands — largely that they either not report critically or lose access to the market — that manufacturing and other industries faced years before.

That doesn’t make it right.

But I do hope media companies realize that the Chinese conditions on entering its market are not new at all. Because for years, the media has largely been ignoring or downplaying the costs that manufacturing companies have paid for entering the Chinese market, which has had a huge impact on US competitiveness, both in terms of lost IP and in terms of diminished exports.

China’s mercantilism has been forcing this kind of choice for decades. Maybe as newspapers recognize the costs of it, they’ll do more reporting on it.

Update: And the parallel continues as journalists consider whether to call for visa retaliation.

It’s not clear if the U.S., a country that prides itself on having a free press, would resort to blocking Chinese journalists. But some journalists and China-watchers suggest that such a measure should be considered if the Chinese government prevents American news organizations from covering the country, a problem compounded by U.S. newspaper sites getting blocked and journalists self-censoring coverage of the Chinese government for fear of reprisal.

On Monday, The Washington Post editorial board called for a U.S. response to China’s “strong-arm tactics” with the media.

“Chinese journalists get an open door to the United States,” the Post editors wrote. “This reflects U.S. values and is fundamentally correct. But perhaps, if China continues to exclude and threaten American journalists, the United States should inject a little more symmetry into its visa policy.”

BBC’s Adam Curtis’ Fluck Up

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Every once in a while there’s an opinion piece so grossly naive, horribly uninformed, or passively apologetic that it deserves pushback.

BBC’s Adam Curtis’ blog post, WHAT THE FLUCK [sic], is such a piece. Read it for yourself. I’m still scratching my head about this overlong, winding post that ultimately says,

“…Maybe today we are being farmed by the new system of power. But we can’t see quite how it is happening – and we need a new journalism to explain what is really going on. …”

No. We have the right journalism, even if it is not perfect or dispersed evenly, even if we could use more of it. The Guardian’s work on the Snowden story is just one example; if I may say so, Emptywheel sets another fine example as citizen journalism.

What we need is a public willing to invest time and energy in reading the material reported, discuss it openly after careful analysis, willing to demand and support more good journalism by way of subscription, donation, or advertising revenues as a last resort.

What we don’t need are naive or uninformed opinion leaders who tell us we don’t have journalism reporting about the size, scale, and nature of the corruption we face.

What we don’t need are apologias masquerading as demands for more and better journalism.

Curtis’ piece in particular does several things to muddy the public’s perception about journalism today:

• He throws us a narrative about poor little rich girl Tamara Yeardye Mellon and her father that is not unlike reading about poor little Paris Hilton, or poor little Kardashian Annoying-Sister-Of-The-Day. The narrative utterly misses a critical point, derailing its own effort, yet he feels the public need more backstory narrative in order to really understand today’s challenges..

• Rupert Murdoch is treated as if he was handed a bag of flaming dog poo by his editorial predecessor, dealing with the mess in the best manner he could — as if cellphone hacking by Murdoch’s employees was mere fallout inherited immaculately by Murdoch.

• Curtis ignores his own role, using his bully pulpit to complain about an absence of reporting he is capable of providing instead of this meandering whinge.

With regard to Tamara Mellon’s allegedly lost control over of her luxe shoe business Jimmy Choo Limited to Phoenix Private Equity, Curtis failed to note that not even a Mellon family member is safe from predation. Even a Mellon can be made into a corporate vulture’s bitch.

What does this tell us about the nature of the beast? Read more →

Home Affairs Committee MPs Worry about Minimization Procedures — of Newspaper, not Spy Service

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I just finished watching Guardian editor Alan Rusbridger’s testimony before the House of Commons Home Affairs Committee, which the Guardian live-blogged here. My overall impression is that, whatever else has happened to America’s former colonial overlords, Brits still maintain the ability to be utter blowhards while maintaining a facade of politeness far better than, say, our blowhards on the House Intelligence Committee.

Those who really wanted to attack Rusbridger and the Guardian, though, appear to have no sense of irony.

They latched not primarily on the Guardian’s publication of news about the NSA-GCHQ dragnet, which several MPs agreed showed the spy services had too few limits. Rather, MPs like Keith Vaz and Mark Reckless suggested Rusbridger had broken the law by sending 50,000 files to the NYT without first redacting the names of GCHQ’s spies. From the Guardian liveblog:

Has he communicated information contrary to the Terrorism Act?

Rusbridger says the government has known for many months that the material Snowden leaked included names of security people at the NSA andGCHQ and he told the cabinet secretary in July that the Guardian was sharing with the NYT. Self-evidently they work in New York. Rusbridger holds up the book Spycatcher by Peter Wright, a former MI5 agent, and recalls the ridiculous sight of the UK trying to stop publication of something being published elsewhere in the world. That was the point of giving the files to the NYT – to avoid a similar situation.

You have I think admitted a criminal offence there, Reckless says. Should Rushbridger be prosecuted?

Admittedly, this was mostly an attempt to intimidate Rusbridger (and he said as much).

But it was also a query about whether the Guardian used adequate minimization procedures before sharing bulk data collected in the course of reporting.

To one question, Rusbridger admitted he hadn’t gone through all 50,000 documents before handing them to the NYT, but he knew the NYT would also protect the names of any spies.

He effectively was taking precisely the same stance on minimization that GCHQ and NSA adopt with their bulk collection. The services share unminimized bulk collected data back and forth with each other. They agree (though sometimes let each other ignore that agreement) to minimize the data of British or US subjects before using that data in finished intelligence reports, the equivalent of a newspaper’s publication.

Pass on the data in bulk, with the understanding none of it will be published with the legally protected identities unmasked (unless needed to understand the intelligence, the spy services allow). That is the practice used by both the Guardian with NYT and GCHQ with NSA.

Spy overseers have repeatedly pointed to minimization procedures as an adequate protection for the privacy of their citizens, to hide information unless it was necessary. Usually, they ignore the danger of having those identities tied to the data in secret archives somewhere.

But at least MPs Vaz and Reckless admit, without meaning to do so, that such minimization procedures might not adequately protect sensitive identities.

But as Rusbridger quipped (and has quipped, elsewhere), the only one who is known to have lost control of data here was the NSA, not the newspapers.

Bob Woodward and Monopoly Journalism

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There’s an absurd debate going on about whether, by hiring Glenn Greenwald and Laura Poitras (who are the only journalists who have a full set of the documents Edward Snowden leaked), Pierre Omidyar has obtained a “monopoly” over NSA’s secrets. As to the substance of the debate: if Omidyar did set out to monopolize the NSA’s secrets, he’s a failure of a billionaire monopolist, given that since he and Greenwald first joined forces, a slew of other outlets have been publishing Omidyar’s monopoly with no apparent compensation to him.

Bad billionaire monopolist!

That said, I’m rather stunned that Bob Woodward — both his history as the previously quintessential “journalist” and his comments about the Snowden leaks specifically — has only received passing mention in this debate. Greenwald mentioned him to deflect claims that his practice with Snowden was any different from what Woodward has done across his career.

Or let’s take the revered-in-DC Bob Woodward, who has become America’s richest journalist by writing book after book over the last decade that has spilled many of America’s most sensitive secrets fed to him by top US government officials. In fact, his books are so filled withvital and sensitive secrets that Osama bin Laden personally recommended that they be read. Shall we accuse Woodward of selling US secrets to his publisher and profiteering off of them, and suggest he be prosecuted?

But what Woodward does is different, and he explicitly stated it would have been different if he were sitting on Snowden’s stash.

I would have said to [Snowden], let’s not reveal who you are. Let’s make you a protected source, and give me time with this data and let’s sort it out and present it in a coherent way. I think people are confused about whether it’s illegal, whether it’s bad, whether it’s bad policy.

That is, it’s not just that (as Dave Weinberger observes) there are many options besides Greenwald and Poitras these days.

Before the Web, the charge that Greenwald is monopolizing the information wouldn’t even have made sense because there wasn’t an alternative. Yes, he might have turned the entire cache over to The Guardian or the New York Times, but then would those newspapers look like monopolists? No, they’d look like journalists, like stewards. Now there are options. Snowden could have posted the cache openly on a Web site. He could have created a torrent so that they circulate forever. He could have given them to Wikileaks curate. He could have sent them to 100 newspapers simultaneously. He could have posted them in encrypted form and have given the key to the Dalai Lama or Jon Stewart. There are no end of options.

But Snowden didn’t. Snowden wanted the information curated, and redacted when appropriate. He trusted his hand-picked journalists more than any newspaper to figure out what “appropriate” means.

It’s that the notion of stewardship has changed — which, if Woodward is the model, previously meant a former intelligence operative would sit on the information for years, hiding both the information and the source, long enough for him to expose selected details through the actions of Important People, told in an omniscient voice.

Curiously, both Weinberger and Woodward talk of confusion not having this omniscient narrator causes.

That the charge that Glenn Greenwald is monopolizing or privatizing the Snowden information is even comprehensible to us is evidence of just how thoroughly the Web is changing our defaults and our concepts. Many of our core models are broken. We are confused.

Woodward believes he should have had the opportunity to tell us what to think about the dragnet. Greenwald’s critics suspect Omidyar plans to tell us what to think about it (or keep it secret).

But the sheer confusion suggests any monopoly has already been thwarted.

8 Years Later, NSA Still Using Same PR Strategy to Hide Illegal Wiretap Program

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Between these two posts (one, two), I’ve shown that the Executive Branch never stopped illegally wiretapping Americans, even after the worst part of it got “shut down” after the March 2004 hospital confrontation. Instead, they got FISC to approve collection with certain rules, then violated the rules consistently. When that scheme was exposed with the transition between the Bush and Obama Administrations, the Executive adopted two new strategies to hide the illegal wiretapping. First, simply not counting how many Americans they were illegally wiretapping, thus avoiding explicit violation of 50 USC 1809(a)(2). And, starting just as the Executive was confessing to its illegal wiretapping, moving — and expanding it — overseas. Given that they’re collecting content, that is a violation in spirit, at least, of Section 704 of FISA Amendments Act, which requires a warrant for wiretapping an American overseas (the government probably says this doesn’t apply because GCHQ does much of the wiretapping).

One big discovery the Snowden leaks have shown us, then, is that the government has never really stopped Bush’s illegal wiretapping program.

That actually shows in the PR response the government has adopted, which has consisted of an affirmative and a negative approach. The affirmative approach emphasizes the programs — PATRIOT Act Section 215 and Section 702 of FAA — that paralleled the illegal wiretap program (I’m not conceding either is constitutional, but only the upstream collection under 702 has been deemed an explicit violation of the law). This has allowed the government to release a blizzard of documents — Transparency!™ — that reveals some shocking disclosures, without revealing the bigger illegal programs. But note how, when the revelations touched on the Internet dragnet (which should be no more revelatory than the phone dragnet), ODNI tried to obscure basic details by hiding dates (even if they left those dates in one URL).

Meanwhile, the I Con has invested energy in trying to undermine every story that touches on the larger illegal wiretapping programs. Read more →

The Second Page, Glenn Greenwald Edition

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On the first page of a WaPo story on an Eric Holder speech, it says this.

Holder indicated that the Justice Department is not planning to prosecute former Guardian reporter Glenn Greenwald, one of the journalists who received documents from Snowden and has written a series of stories based on the leaked material. Greenwald, an American citizen who lives in Brazil, has said he is reluctant to come to the U.S. because he fears detention and possible prosecution.

Based on that, I think, a slew of journalists are reporting that DOJ will not prosecute Glenn Greenwald.

Then click the link:

 

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And here’s what it says:

“Unless information that has not come to my attention is presented to me, what I have indicated in my testimony before Congress is that any journalist who’s engaged in true journalistic activities is not going to be prosecuted by this Justice Department,” Holder said.

“I certainly don’t agree with what Greenwald has done,” Holder said. “In some ways, he blurs the line between advocate and journalist. But on the basis of what I know now, I’m not sure there is a basis for prosecution of Greenwald.” [my emphasis]

In this passage, which is admittedly not a transcript, Holder seems to distinguish between “true journalistic activities” and “advocate.”

If that is, in fact, fair syntax, then it suggests something troubling. Not just that Holder remains open to be persuaded that journalist Glenn Greenwald might be prosecutable. But that the “line” is drawn where “journalism” turns to “advocacy.”

Damn. I hope he tells our founding fathers, because it sounds like he might well have prosecuted a sizable chunk of those advocate journalists.