The Inevitable Collapse of Legitimacy Under Secret Law: WikiLeaks Hacks

DOJ indicted 16 alleged hackers today, 14 of whom were purportedly involved in hacking PayPal after it refused to accept payments for WikiLeaks.

According to the San Jose indictment, in late November 2010, WikiLeaks released a large amount of classified U.S. State Department cables on its website. Citing violations of the PayPal terms of service, and in response to WikiLeaks’ release of the classified cables, PayPal suspended WikiLeaks’ accounts so that WikiLeaks could no longer receive donations via PayPal. WikiLeaks’ website declared that PayPal’s action “tried to economically strangle WikiLeaks.”

The San Jose indictment alleges that in retribution for PayPal’s termination of WikiLeaks’ donation account, a group calling itself Anonymous coordinated and executed distributed denial of service (DDoS) attacks against PayPal’s computer servers using an open source computer program the group makes available for free download on the Internet. DDoS attacks are attempts to render computers unavailable to users through a variety of means, including saturating the target computers or networks with external communications requests, thereby denying service to legitimate users. According to the indictment, Anonymous referred to the DDoS attacks on PayPal as “Operation Avenge Assange.”

Now, I’m not surprised DOJ indicted these folks. I’m not arguing that, if they did what DOJ alleged they did, they didn’t commit a crime.

But I can’t help but notice that DOJ has not yet indicted anyone for the DDoS attacks–the very same crime–committed against WikiLeaks 8 days earlier than the crime alleged in this indictment.

I’m guessing DOJ has a very good idea who committed that crime. But for some reason (heh), they haven’t indicted those perpetrators.

In fact, I’ll bet you that DOJ also has a better explanation for why PayPal started refusing WikiLeaks donations on December 4, 2010–two days before this alleged crime–than they describe here.

But we mere citizens are privy to none of that. As far as we know–because of choices about secrecy the government has made–a crime was committed against a media outlet on November 28, 2010. That crime remains unsolved. Indeed, DOJ has never made a peep about solving that crime. Meanwhile, today, 14 people were indicted for allegedly committing the very same crime the government–inexplicably, at least according to its public statements–has not pursued.

According to the public story, at least, the rule of law died with this indictment today. The government has put itself–the hackers it likes, if not employs–above the law, while indicting 14 people for the very same crime committed just weeks before those 14 people allegedly committed their crime.

Of course, that’s probably not how the government views it. I presume they went to some judge–probably a FISA judge–in the days leading up to November 28 and told that judge they were pursuing a case of Espionage and couldn’t that judge please give the government permission to commit a crime against a media outlet.

Mind you, I’m not aware of the part of the PATRIOT Act (or other US Code) that permits the government to commit crimes against media outlets it claims are engaged in Espionage. But then I’m not aware of the part of the PATRIOT Act that permits the government to track geolocation of all of us in the name of hunting terrorists.

And we know they do that.

That’s one of the problems with secret law, you know. It’s never clear what basis the government has given a judge, in secret, for breaking the law.

Less perplexing than how the government explains why its hack of WikiLeaks is not a crime but the alleged hacking committed by these 14 people is a crime, is why PayPal and Visa and MasterCard all of a sudden, within days, decided to stop taking donations to WikiLeaks. Withdrawing funding for alleged terrorists and spies with no due process, at least, is at least provided for under the law.

Though, from the perspective of seeing that our government used it to persecute a media outlet, it doesn’t necessarily make it right.

The other interesting thing about how this secret law thing works is that around about the same time this uninvestigated hack against WikiLeaks occurred and around about the same time these alleged hackers hacked PayPal, the government anonymously leaked information about problems with the claim that WikiLeaks was, in fact, engaged in Espionage. Even at that point, the government admitted it didn’t have much of an Espionage case.

The Justice Department, in considering whether and how it might indict Julian Assange, is looking beyond the Espionage Act of 1917 to other possible offenses, including conspiracy or trafficking in stolen property, according to officials familiar with the investigation.

Attorney General Eric H. Holder Jr. acknowledged this week that there were problems with the Espionage Act, a World War I-era law that says the unauthorized possession and dissemination of information related to national defense is illegal. But he also hinted that prosecutors were looking at other statutes with regard to Mr. Assange, the founder of WikiLeaks.

[snip]

A government official familiar with the investigation said that treating WikiLeaks different from newspapers might be facilitated if investigators found any evidence that Mr. Assange aided the leaker, who is believed to be a low-level Army intelligence analyst — for example, by directing him to look for certain things and providing technological assistance.

If Mr. Assange did collaborate in the original disclosure, then prosecutors could charge him with conspiracy in the underlying leak, skirting the question of whether the subsequent publication of the documents constituted a separate criminal offense. But while investigators have looked for such evidence, there is no public sign suggesting that they have found any.

Did they tell a judge WikiLeaks was engaged in Espionage even while they were telling Charlie Savage it wasn’t?

Particularly from the perspective of today–as it has become clear that Rupert Murdoch has been trafficking in stolen property without his media properties mysteriously getting hacked by people we believe to be aligned with the government–the 7 month period in which DOJ has failed to find any grounds to indict WikiLeaks itself really raises questions about the justification DOJ presumably gave to a judge all those months ago to engage in illegal prior restraint.

I assume DOJ claimed WikiLeaks engaged in Espionage. I assume the government used that claim to hack WikiLeaks and engage in prior restraint. I assume the government used the same claim to cut off US-based donations to WikiLeaks. And if the government admitted that publicly, likely just a few crazy civil libertarians like me would object to the government’s violation of the First Amendment.

We’re so quaint, those of us who believe in rule of law!

DOJ could fix the crisis in legitimacy this indictment will bring about by simply explaining some detail about why they’re not pursuing the hackers that brought down a media outlet last year, but they have pursued hackers that brought down an online payment service (never mind questions about why they’re not pursuing banksters). They could simply explain what law they used–or abused–to be able to incapacitate a media outlet without violating the First Amendment.

That might give their actions today–and back in November–the patina of legitimacy.

But instead, they have apparently chosen to persist in applying their secret laws, such that they can violate the First Amendment of the Constitution, even while prosecuting others for crimes the government has presumably committed itself.

And that, my friends, is how secret law kills democracy and the rule of law.

Rupert Murdoch: I went through Mr. Brown’s back door many times

I’m livetweeting the Murdoch hearings–follow along @emptywheel.

The highlights thus far are:

MP Watson kept refusing to let James Murdoch answer questions for his father. At one point, Watson said, “Your father is responsible for corporate governance and it’s revealing how little he knows.” The only question Watson asked James–which he didn’t really answer–was “I’d like you to tell me whether you told your father” about one of the settlements.

In a key exchange, Watson asked Rupert, “Mr. Murdoch, at what point did you find out criminality was endemic at NotW?” Rupert answered, “Endemic is a very wide word.”

In other exchanges, Rupert was stumped. On at least two occasions, he took more than 10 seconds to answer a question.

Another MP made a big deal about Rupert going through the back door of the Prime Minister’s residence. Rupert explained, “I was asked. I just did what I was told.” At one point, James tried to interrupt to explain the special politics of Murdoch going through the back door. Then finally, Rupert said (this is not quite a direct quote), I went through Mr. Brown’s back door many times.

Then he asked the big question:

Mr. Murdoch: Do you accept that ultimately you are responsible for this whole fiasco? Rupert: No.

WSJ: Don’t Be Mean to Us Like Fitz Was to Judy

Most sane people are outraged by the WSJ’s hacktalicious editorial calling for calm on the hack scandal.

As well they should: the editorial discredits WSJ as a paper.

But I was particularly interested in this bit.

In braying for politicians to take down Mr. Murdoch and News Corp., our media colleagues might also stop to ask about possible precedents. The political mob has been quick to call for a criminal probe into whether News Corp. executives violated the U.S. Foreign Corrupt Practices Act with payments to British security or government officials in return for information used in news stories. Attorney General Eric Holder quickly obliged last week, without so much as a fare-thee-well to the First Amendment.

The foreign-bribery law has historically been enforced against companies attempting to obtain or retain government business. But U.S. officials have been attempting to extend their enforcement to include any payments that have nothing to do with foreign government procurement. This includes a case against a company that paid Haitian customs officials to let its goods pass through its notoriously inefficient docks, and the drug company Schering-Plough for contributions to a charitable foundation in Poland.

Applying this standard to British tabloids could turn payments made as part of traditional news-gathering into criminal acts. The Wall Street Journal doesn’t pay sources for information, but the practice is common elsewhere in the press, including in the U.S.

The last time the liberal press demanded a media prosecutor, it was to probe the late conservative columnist Robert Novak in pursuit of White House aide Scooter Libby. But the effort soon engulfed a reporter for the New York Times, which had led the posse to hang Novak and his sources. Do our media brethren really want to invite Congress and prosecutors to regulate how journalists gather the news?

This is structured as an appeal to other media outlets, warning them that if they pile on, it might well hurt them too (this structure continues to the rest of the editorial).

This argument ends with the Scooter Libby argument–the claim that the NYT, because it purportedly “led the posse to hang [Bob] Novak and his sources” (including, among others, Dick Cheney and Scooter Libby), ended up getting embroiled in the Libby case (in spite of the fact that NYT discredited itself by protecting Libby for a year after they had published his name as Judy’s source).

Fair enough. The NYT–and especially Judy Miller–was exposed to be as hackish as Novak was (and, as another outlet who published bogus leaks in the Joe Wilson pushback, the WSJ) when its laundering of government leaks was made clear.

So the WSJ is rightly reminding other media outlets that they are as hackish as it is. Perhaps they have specific incidents of hackishness in mind?  Maybe the rest of the press should worry that a focus on how corrupt our press has gotten will reflect badly on them too. It appears, for example, that the WaPo is worried about just such a thing.

Then, oddly (working backwards from the Judy Miller issue), the WSJ warns that if other media outlets pile on, it’ll criminalize payments made in the course of news-gathering–with a claim that such a horror would only matter for British tabloids. Only, that’s not exactly true, is it? And that’s before you consider the number of “consultants” TV stations pay for their “expertise.”

Then, in the first part of this passage, the WSJ rails against what is probably one of its biggest worries–it’ll be held liable in the US for the fairly well-established bribery it engaged in in the UK (even assuming no such bribery were discovered here in the US). It suggests that a poor helpless media company would never bribe a government for something real–like a contract. Putting aside the appearance that Murdoch’s minions bribed the cops.

Except at the heart of this scandal is Murdoch’s attempt to get full control of BSkyB. Not to mention Murdoch’s fairly well-established pattern of trading political support for Tony Blair, Hillary Clinton, and David Cameron in exchange for political favors.

This is bribery every bit as much as Halliburton’s bribery to get Nigerian contracts was bribery. A satellite concession is every bit as tangible a goal as is a contract. But it attempts to couch decades of Murdoch’s ruthless business practices in First Amendment hand-wringing. It suggests that whatever meager journalism Murdoch’s minions do, it should excuse his illegal business practices.

This WSJ editorial is a damning exhibit in outright hackery.

But I suspect its audience–other hackish media outlets–finds it a persuasive read.

Update: With this editorial in mind, I wanted to point to a few paragraphs of Alan Rusbridger’s description of how the Guardian broke this story. A key part of it, he describes, was in partnering with the NYT to break the omertà among British papers.

Big story? Not at all. Not a single paper other than The Guardian noted [a $1 million settlement against News of the World for bullying] in their news pages the next day. There seemed to be some omertà principle at work that meant that not a single other national newspaper thought this could possibly be worth an inch of newsprint.

Life was getting a bit lonely at The Guardian. Nick Davies had been alerted that Brooks had told colleagues that the story was going to end with “Alan Rusbridger on his knees, begging for mercy.” “They would have destroyed us,” Davies said on a Guardian podcast last week. “If they could have done, they would have shut down The Guardian.

If the majority of Fleet Street was going to turn a blind eye, I thought I’d better try elsewhere to stop the story from dying on its feet, except in the incremental stories that Nick was still remorselessly producing for our own pages. I called Bill Keller at The New York Times. Within a few days, three Times reporters were sitting in a rather charmless Guardian meeting room as Davies did his best to coach them in the basics of the story that had taken him years to tease out of numerous reporters, lawyers, and police officers.

The Times reporters took their time—months of exceptional and painstaking work that established the truth of everything Nick had written—and broke new territory of their own. They coaxed one or two sources to go on the record. The story led to another halfhearted police inquiry that went nowhere. But the fact and solidity of the Times investigation gave courage to others. Broadcasters began dipping their toes in the story. One of the two victims began lawsuits. Vanity Fair weighed in. The Financial Times and The Independent chipped away in the background. A wider group of people began to believe that maybe, just maybe, there was something in this after all. [my emphasis]

News Corp would have destroyed the Guardian, Rusbridger and Nick Davies say, if they had had the dirt to do so. Such threats are presumably how News Corp enforced the omertà on the story.

Now look at the editorial. It appears, first of all, to be an appeal to precedent–a similar kind of appeal often made when pointing out that an espionage prosecution of Julian Assange will criminalize newsgathering.

It argues that a prosecution of News Corp under the FCPA would be a bad precedent, equating contracts with–well, I”m not sure what News Corp is admitting to here, as its media interests do amount to a contract. It then suggests–the logic is faulty–that such a prosecution would also criminalize the news gathering of those who pay for stories. This seems to be an implicit threat directed at those who do pay for stories (note that this editorial doesn’t say News Corp, including Fox TV, doesn’t pay for stories, just WSJ), perhaps an attempt to silence TV news.

But then, after having already impugned newspapers that, like the Guardian and NYT, gave “their moral imprimatur” to WikiLeaks, the editorial levels a threat clearly directed at the NYT, noting how the the newspaper’s purported efforts to go after Novak’s sources ended up backfiring on the NYT.

Not long after Rusbridger described the omertà that helped News Corp forestall consequences in the UK, Murdoch’s mouthpiece here in the US issued a veiled threat against the NYT.

I’m betting that Murdoch thinks the NYT will be easier to destroy than the Guardian.

Rebekah Brooks Arrested

The Guardian is reporting that Rebekah Brooks, Rupert Murdoch’s henchwoman in the UK, has been arrested in the phone hacking scandal.

The Metropolitan police said a 43-year-old woman was arrested at noon Sunday, by appointment at a London police station. Brooks, 43, resigned on Friday as News International’s chief executive. She is a former News of the World editor.

Brooks is due to give evidence before MPs on the home affairs select committee on Tuesday. An arrest by appointment on a Sunday by police is unusual. In a statement the Met said:

“The MPS has this afternoon, Sunday 17 July, arrested a female in connection with allegations of corruption and phone hacking.”

“At approximately 12.00 hrs a 43-year-old woman was arrested by appointment at a London police station by officers from Operation Weeting [phone hacking investigation] together with officers from Operation Elveden [bribing of police officers investigation]. She is currently in custody.”

“She was arrested on suspicion of conspiring to intercept communications, contrary to Section1(1) Criminal Law Act 1977 and on suspicion of corruption allegations contrary to Section 1 of the Prevention of Corruption Act 1906.” [my emphasis]

A couple of comments on this.

Note this was “by appointment,” but done on a Sunday–an unusual move. When Andy Coulson was arrested back on July 8, also by appointment, the Guardian reported that the Met had sped up the arrest because of leaks.

The arrests had been planned to take place before 8 August, when Operation Weeting had agreed to pass all the relevant material in their possession to lawyers acting in the civil cases against News International for victims of phone hacking – thereby giving suspects the opportunity to discover what evidence the police hold against them.

The Guardian understands News International had promised police they would not make public the existence of evidence identifying Coulson and the other journalist, but that detectives began to fear the information would be leaked, after reports appeared suggesting that Coulson approved payments to police officers.

A similar worry–that investigative details were leaking out–might explain the timing here. Or, there may be a reason to have Brooks all good and arrested before her appearance at Parliament on Tuesday.

And speaking of leaks, remember what I pointed out on Friday. At a time when Murdoch seemed intent on protecting Brooks, Saudi Prince Alwaleed bin Talal–the biggest News Corp stockholder after Murdoch–called for her ouster. I guess he’s looking pretty prescient about now, huh? Of course, the Saudis have their own means of figuring out what’s going on in the world.

Rupert gave Brooks $5.6 million on her way out the door. I wonder whether that will dissuade her from getting chatty with the police?

Update: Brooks; spokesperson now suggests this arrest will make it harder for her to be very forthcoming with Parliament on Tuesday.

Mrs Brooks is due to appear in front of the Commons media select committee on Tuesday to answer MPs questions on the hacking scandal.

Mrs Brooks’ spokesman said her arrest would make her appearance at the committee “pretty tricky”.

The spokesperson also claims that Brooks was informed (formally, I’m guessing) she would be arrested after he resignation on Friday.

A spokesman for Mrs Brooks says the Met police notified her on Friday, after her resignation had been agreed, that she would be arrested.

Update: Meanwhile, David Cameron’s chumminess with the Murdoch crew is coming under scrutiny.

Mr Cameron has held more than twice the number of meetings with Murdoch executives as he has with any other media organisation. There were two “social” meetings between Mr Cameron and Ms Brooks, one of which was also attended by James Murdoch, and in return they invited the Prime Minister to a succession of parties.

Mr Cameron and Ms Brooks, who are neighbours in West Oxfordshire, met over Christmas – including a get-together on Boxing Day – just days after Vince Cable was relieved of responsibility for deciding the fate of News Corp’s BSkyB bid. Downing Street has always refused to discuss what they talked about, but officials insist that the subject of the BSkyB takeover was never raised.

While James Murdoch met Mr Cameron twice over the period, on both occasions he avoided the spotlight of Downing Street. That was not a qualm shared by his father, who was invited to visit Mr Cameron at Downing Street days after the general election.

The nice thing about these meetings coming out is that they’ll allow MPs to focus on the underlying scandal here–the quid pro quo between Murdoch and government, particularly as it relates to regulatory approvals.

Problem is, I’m not sure Labour is ready to go there fully yet, given that Tony Blair had the same coziness w/Rupert as Cameron has.

Update: And here’s another reason not to get your hopes up about Tuesday’s Parliamentary appearance.

The MP who will lead the attack on Rebekah Brooks and Rupert and James Murdoch this week over their roles in the phone-hacking scandal has close links with the media empire, it is revealed today.

John Whittingdale, the Conservative chairman of the Culture, Media and Sport committee, admitted he was an old friend of Mr Murdoch’s close aide, Les Hinton, and had been for dinner with Ms Brooks.

The Independent on Sunday has also learnt that Mr Murdoch’s daughter Elisabeth, seen as the future saviour of the company, has also met Mr Whittingdale a number of times. Among her 386 “friends” on Facebook, the only MP she lists is Mr Whittingdale. He is also the only MP among 93 Facebook “friends” of Mr Hinton.

This also provides further reason to believe that Brooks was arrested to give her cover for Tuesday.

It is understood that the committee has legal advice that as Ms Brooks, and the Murdochs, have not been arrested by officers investigating hacking, they must reveal, under oath, what they knew.

Update: Ut oh. The Murdoch men seem to have developed a scheduling conflict with their Tuesday testimony. Nevermind–it looks like they’re still scheduled.

Update: London’s police chief Paul Stephenson just resigned.

Why Assign the Met’s Counterterrorism Squad to Investigate Murdoch?

The NYT has a long article exploring why Scotland Yard allowed bags and bags of evidence showing News of the World’s widespread hacking to sit unopened for four years. One reason, it explains, is because Scotland Yard’s counterterrorism unit led the investigation, rather than the special crimes unit. Since the counterterrorism unit was so busy investigated alleged terrorism, it had no time to investigate Murdoch.

The police have continually asserted that the original investigation was limited because the counterterrorism unit, which was in charge of the case, was preoccupied with more pressing demands. At the parliamentary committee hearing last week, the three officials said they were working on 70 terrorist investigations.

Yet the Metropolitan Police unit that deals with special crimes, which had more resources and time available, could have taken over the case, said four former senior investigators. One called the argument that the department did not have enough resources “utter nonsense.”

Another senior investigator said officials saw the inquiry as being in “safe hands” at the counterterrorism unit.

The NYT further explains how often key police figures and NotW figures socialized together.

Executives and others at the company also enjoyed close social ties to Scotland Yard’s top officials. Since the hacking scandal began in 2006, Mr. Yates and others regularly dined with editors from News International papers, records show. Sir Paul Stephenson, the Metropolitan Police commissioner, met for lunch or dinner 18 times with company executives and editors during the investigation, including eight occasions with Mr. Wallis while he was still working at The News of the World.

[snip]

Andy Hayman, who as head of the counterterrorism unit was running the investigation, also attended four dinners, lunches and receptions with News of the World editors, including a dinner on April 25, 2006, while his officers were gathering evidence in the case, records show. He told Parliament he never discussed the investigation with editors.

And it shows how much money exchanged hands between the police and Murdoch’s empire.

But that still doesn’t explain how the counterterrorism unit would ever have been the appropriate entity to investigate illegal wiretapping by a newspaper.

Meanwhile, I can’t help but think, in addition to all the ways Murdoch’s empire has corrupted journalism and politics in the US and UK, its other great sin: making torture (and Dick Cheney’s absolutist approach to counterterrorism) popular. It did so with its news programs. But even more so, it did it with 24.

For all its fictional liberties, “24” depicts the fight against Islamist extremism much as the Bush Administration has defined it: as an all-consuming struggle for America’s survival that demands the toughest of tactics. Read more

No Wonder They Hired Andy Coulson

Amid news that News Corp is playing games with its BSkyB bid (and even that Murdoch might sell News International entirely), the Guardian reports that Gordon Brown, like everyone else in England it seems, was hacked by “journalists across News International.”

Journalists from across News International repeatedly targeted the former prime minister Gordon Brown, attempting to access his voicemail and obtaining information from his bank account, his legal file as well as his family’s medical records.

[snip]

Separately, Brown’s tax paperwork was taken from his accountant’s office apparently by hacking into the firm’s computer. This was passed to another newspaper.

Brown was targeted during a period of more than 10 years, both as chancellor of the exchequer and as prime minister. Some of the activity clearly was illegal. Other incidents breached his privacy but not the law.

So here’s a question I’m mystified that no one is asking.

A couple of Liberal Democrats are now reporting that, after having received non-public briefings on Andy Coulson’s role in the hacking scandal, they warned David Cameron not to hire Coulson as his spokesperson. But Cameron ignored those warnings.

The crisis engulfing David Cameron over phone hacking deepened on Saturday as Paddy Ashdown revealed that he had warned No 10 only days after the general election of “terrible damage” to the coalition if he employed Andy Coulson in Downing Street.

The former Liberal Democrat leader, who had been extensively briefed on details that had not been made public for legal reasons, was so convinced that the truth would eventually emerge that he contacted the prime minister’s office.

Ashdown, a key player as the Liberal Democrats agonised over whether to join in a coalition with the Tories, told the Observer that, based on what he had been told, it was obvious Coulson’s appointment as Cameron’s director of communications would be a disaster.

“I warned No 10 within days of the election that they would suffer terrible damage if they did not get rid of Coulson, when these things came out, as it was inevitable they would,” he said.

Isn’t it possible that Cameron insisted on hiring Coulson because of his role in the scandal? That is, is it possible that, either before or after the election, Coulson shared some of this intelligence–which we know included personal information about Gordon Brown–with the Tories for political advantage?

Guardian: Andy Coulson to Be Arrested in Hacking Scandal

The Guardian is reporting that former News of the World editor and David Cameron flack Andy Coulson received notice today to show up at a London police station to be arrested tomorrow.

Andy Coulson has been told by police that he will be arrested on Friday morning over suspicions that he knew about, or had direct involvement in, the hacking of mobile phones during his editorship of the News of the World.

The Guardian understands that a second arrest is also to be made in the next few days of a former senior journalist at the paper.

Leaks from News International forced police to speed up their plans to arrest the two key suspects in the explosive phone-hacking scandal.

The Guardian knows the identity of the second suspect but is witholding the name in order to avoid prejudicing the ongoing police investigation.

[snip]

Evidence leading to the two imminent arrests has come from a cache of emails recently uncovered during NI’s internal investigation into phone hacking.

[snip]

The Guardian understands that NI had promised the police not to reveal the existence of evidence identifying Coulson and the other journalist, but that detectives began to fear the information would be leaked, after reports appeared suggesting that Coulson approved payments to police officers.

So not only has News International known that Coulson was in trouble, but someone has leaked tidbits of it.

I’m not sure closing News of the World is going to help News Corp–or Scotland Yard–avoid this much longer.

Government: Risen Shouldn’t Be Able to Reveal We Want(ed) to Trump Up War against Iran

The government has now responded to Risen’s attempt to quash his subpoena in the Jeffrey Sterling case. I fear the government will succeed in at least getting Risen to the stand, not least because of the gimmicks they’ve used to claim they need information not protected by any confidentiality agreement Risen might have had with Sterling.

But a more interesting political debate–albeit one that likely will be dismissed from a legal standpoint–pertains whether Risen was right to expose a program to deal fabricated nuclear materials to Iran at the moment when the government was using fabricated nuclear materials to try to drum up a war against Iran.

The government’s weak rebuttal to Risen’s harassment claim

I think the government’s subpoena of Risen is still very vulnerable to the argument that they are harassing Risen. The government dismisses the claim by emphasizing that the grand jury approved this indictment, as if that eliminated any animus from the government officials presenting the case to them, or the way that the government could “affirmatively operat[e] with furtive design or ill will” (the government’s own definition for harassment) to jail Risen in pursuit of his testimony.

Moreover, the Indictment in this matter was returned by a grand jury that found probable cause that serious crimes were committed by Sterling, and that Risen was a witness to those crimes. As such, any alleged harassment prior to that time – which the Government denies – is of no moment. Risen does not even attempt to address this central fact, or challenge in any way the detailed allegations against Sterling in the Indictment for which he is an eyewitness.

But Risen’s team would need to emphasize more strongly the extent to which the government is going to shield illegal behavior in the al-Haramain case. Moreover, the question of how the government got a list of Risen’s phone contacts remains a crucial one impacting the proof of harassment.

If secret unrebutted witnesses claim something is false, then journalists have to testify

I’m also amused (or perhaps disgusted) by a new tack the government takes here, by insisting that Risen must disclose his source because–they argue–the grand jury has found that his reporting included false information.

Risen’s beliefs that his confidential source(s) provided him truthful information, no matter how sincerely held, do not alter the indisputable fact that the grand jury found otherwise.

Aside from the fact that the government does not dispute that some of what it claims Sterling told Risen is true, the grand jury, of course, is not a confrontational proceeding. Sterling and his Russian asset did not, to the best of my understanding, testify before the grand jury. No final judgment on whether Sterling lied or not has been rendered.

And of course, the government would adamantly refuse to make any information with which the jury could assess such information available in court (indeed, I doubt they have made it available to Judge Brinkema here). In other words, the government wants to be able to force a reporter to testify based solely on its unrebutted assertion–endorsed by a grand jury–that Sterling lied. Given the asymmetry of access to classified information, given the government’s repeated success in withholding information from such trials, that is a very dangerous approach to allow to stand.

Risen’s efforts to prevent another war

But I’m most interested in the government’s weak response to Risen’s claim to have published the information because it was newsworthy. They don’t deal with the substance of Risen’s claim to newsworthiness, which basically argues he published the information in 2006 because the government was threatening to trump up another war, this time against Iran.

I gave this type of serious consideration to my publication of the information contained in Chapter 9 of State of War. I actually learned the information about Operation Merlin that was ultimately published in Chapter 9 of State of War in 2003, but I held the story for three years before publishing it. I made the decision to publish the information about Operation Merlin only after: (1) it became clear that the main rationale for fighting the Iraq War was based on flawed intelligence about Iraq’s non-existent weapons of mass destruction, including its supposed nuclear program; (2) the press, patiicularly The New York Times, had been harshly criticized for not doing more independent investigative reporting before the Iraq War about the quality of our intelligence concerning Iraq’s weapons of mass destruction; (3) the March 31, 2005 Report to the President by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction described American intelligence on Iran as inadequate to allow finn judgments about Iran’s weapons programs, making it clear that the CIA’s intelligence on weapons of mass destruction in Iran was just as badly flawed as it had been on Iraq; and (4) there was increasing speculation that the United States might be planning for a possible conflict with Iran, once again based on supposed intelligence concerning weapons of mass destruction, just as in Iraq. After all of this, I realized that U.S. intelligence on Iran’s supposed weapons of mass destruction was so flawed, and that the information I had was so important, that this was a story that the public had to know about before yet another war was launched.

Instead, they just talk about how dangerous (because trumped up wars aren’t dangerous) it would be excuse Risen from testifying because he published information that was newsworthy.

Moreover, the practical effect of a court’s engaging in such an analysis, by explicitly recognizing “good leaks” of classified information, would effectively destroy the system through which the country protects that information. It would encourage government employees who are provided access to classified information to betray their commitment to safeguard it by suggesting that they, too, should undertake their own independent analysis of the effect of their disclosure of that information should they desire to do so. It would also provide a ready-made defense for every disgruntled intelligence community employee or contractor who discloses such information to the press because he harbors a grudge against the institution for which he works.

(They also revert to their unproven claim that Sterling provided Risen with false information.)

But consider the environment in which Risen published this. Just a month before the publication of Risen’s book, it was becoming increasingly clear that the government had been trying for a year to generate support for actions against Iran by using a dodgy dossier and selectively tailored presentations based on non-traditional intelligence analysis.

The Bush Administration (or at least State Department officials) may not have believed that intelligence was ready for prime time a year ago. But they apparently believe it is ready now. In September we learned BushCo had itself another powerpoint presentation, this one titled “A History of Concealment and Deception” (did they get the same guy who came up with the name for the WHIG product, “A Grave and Gathering Danger” to name this one?):

The PowerPoint briefing, titled “A History of Concealment and Deception,” has been presented to diplomats from more than a dozen countries.

[snip]

Several diplomats said the slide show reminded them of the flawed presentation on Iraq’s weapons programs made by then-secretary of state Colin L. Powell to the U.N. Security Council in February 2003.

BushCo may think this is ready for prime time. But some people who have seen the presentation are not so sure.

Several diplomats said the presentation, intended to win allies for increasing pressure on the Iranian government, dismisses ambiguities in the evidence about Iran’s intentions and omits alternative explanations under debate among intelligence analysts.

The presenters argue that the evidence leads solidly to a conclusion that Iran’s nuclear program is aimed at producing weapons, according to diplomats who have attended the briefings and U.S. officials who helped to assemble the slide show. But even U.S. intelligence estimates acknowledge that other possibilities are plausible, though unverified.

The problem, acknowledged one U.S. official, is that the evidence is not definitive. Briefers “say you can’t draw any other conclusion, and of course you can draw other conclusions,” said the official, who would discuss the closed-door sessions only on condition of anonymity

Sounds familiar, huh? Omitting alternative explanations … again? But the most important line from this passage is this: “But even U.S. intelligence estimates acknowledge that other possibilities are plausible, though unverified.” Quick, someone tell Condi that somewhere deep in the bowels of the agency there are people who doubt this intelligence, because she will deny it later, mark my words.

We’re in the middle of arguments about the intelligence used to get us into the Iraq War, where Republicans try to prove that BushCo didn’t withhold information and Democrats point out that the Administration suppressed the doubts within the IC. But why are we having the argument about the last war, when they’re doing it again??? The Bush Administration is withholding information in the present–regardless of what it did in the past.

One more thing. This slide show? You’d think it’d reflect the consensus opinion of the IC, right? Well, no. Rather, it looks a lot more like the product of the reincarnation of OSP or WHIG than something respectable intelligence professionals (if there are any left who haven’t been hounded out by BushCo) would buy off on:

The presentation has not been vetted through standard U.S. intelligence channels because it does not include secret material. One U.S. official involved in the briefing said the intelligence community had nothing to do with the presentation and “probably would have disavowed some of it because it draws conclusions that aren’t strictly supported by the facts.”

The presentation, conducted in a conference room at the U.S. mission in Vienna, includes a pictorial comparison of Iranian facilities and missiles with photos of similar-looking items in North Korea and Pakistan, according to a copy of the slides handed out to diplomats. Pakistan largely supplied Iran with its nuclear infrastructure but, as a key U.S. ally, it is identified in the presentation only as “another country.”

Two months ago, the Bush Administration presented an explicitly politicized presentation to diplomats from other countries in an attempt to drum up support for a hardline against Iran.

Since that time, the IAEA has received evidence that the “laptop of death” on which this fearmongering was based might be a fabrication. Later, evidence came out to suggest the laptop of death came from the MEK (the same terrorist group the neocons are trying to rehabilitate, oddly without being prosecuted for material support for terrorism) via Mossad.

In other words, Risen published a story about the US providing fabricated nuclear plans to Iran. He published it–in spite of the government’s earlier success at persuading the NYT not to publish it–because the US had since been proven to have used fabricated intelligence to trump up a war against Iraq, and the government was in the process of using probably-fabricated materials (which included fabricated blueprints) to trump up action against Iran.

Now, I think Leonie Brinkema will do what District Court judges tend to do when the government says judges are unqualified to measure the importance of secrecy: I think she’ll cede to the government’s argument, no matter what she does on the other legal arguments.

But that doesn’t mean the conflict shouldn’t be one of the primary  topics of public discussion about this case.

The government is basically arguing that Risen shouldn’t have published information that helped us (so far) avoid a trumped-up war against Iran. It is quite possible he will end up spending time in jail–for protecting his sources–for having done so (as well as for having exposed illegal wiretapping that has never been punished). While the legal arguments may not work in Risen’s favor, that is what is at stake.

Rupert Murdoch’s Hacks

How interesting that Rupert Murdoch’s empire was the subject of not one, but two, hacking stories this weekend.

You probably heard how, in the US, someone hacked Fox News’ Twitter account in the middle of the night leading into Fourth of July. Shortly thereafter, that thread posted a series of three tweets reporting that Obama had been assassinated. The Secret Service is investigating that hack.

Good thing this didn’t happen on a news day when markets were open.

Meanwhile, in the UK, the Guardian reported the most heinous detail yet in its years-long investigation into how News of the World has hacked people’s cell phones as a news-gathering tool: they hacked the cell phone voice mail of a 13-year old girl, Milly Dowler, who had been abducted. Because they deleted some of the voice mails on the phone after it had filled up, her family believed that she was still alive. The hack may have confused investigators and destroyed evidence in the case.

Then, with the help of its own full-time private investigator, Glenn Mulcaire, the News of the World started illegally intercepting mobile phone messages. Scotland Yard is now investigating evidence that the paper hacked directly into the voicemail of the missing girl’s own phone. As her friends and parents called and left messages imploring Milly to get in touch with them, the News of the World was listening and recording their every private word.

But the journalists at the News of the World then encountered a problem. Milly’s voicemail box filled up and would accept no more messages. Apparently thirsty for more information from more voicemails, the paper intervened – and deleted the messages that had been left in the first few days after her disappearance. According to one source, this had a devastating effect: when her friends and family called again and discovered that her voicemail had been cleared, they concluded that this must have been done by Milly herself and, therefore, that she must still be alive. But she was not. The interference created false hope and extra agony for those who were misled by it.

[snip]

The deletion of the messages also caused difficulties for the police by confusing the picture when they had few leads to pursue. It also potentially destroyed valuable evidence.

Most damning, though, is that NoW informed the police investigating the kidnapping they had hacked the girl’s cell phone–and possibly their own. But neither the police, nor Scotland Yard in its subsequent investigation of NoW’s hacking, did anything against the tabloid for this hack.

This is interesting not just because it expresses shows how NoW’s hacking had real human consequences on people beyond celebrities. But also because it highlights, again, how inadequate initial investigations of this scandal were–and may remain.

Politicians in the UK are now squabbling over whether this should impact Murdoch’s attempt to acquire the rest of BSkyB.

 

DSK Case Collapse: Lawyers, Phone Calls & Money the Shit Hits The Fan

It is not often you see the total implosion of a major criminal case in quite such a spectacular fashion as we have witnessed with the Dominique Strauss-Kahn (DSK) case in the last 24 plus hours. As I said Thursday night when the news first broke of the evidentiary infirmities in relation to the putative victim were first made public in the New York Times; there is simply no way for the prosecution to recover, the criminal case is dead toast.

Today, the letter from the Manhattan DA’s Office to DSK’s attorneys detailing the Brady material disclosures gutting their victim’s credibility was made public. It is, to say the least, shocking. But what has transpired since then has been nothing short of stunning.

As expected, DSK had his release conditions modified to OR (own recognizance) and all restrictions, save for not leaving the United States, removed. If you do not think that is a crystal clear sign of just how much trouble the prosecution is in, then you do not know criminal trial law.

But the process of dismissing the case cannot take too long, DSK’s attorneys simply will not sanction that and, trust me, they have already mapped out an attack strategy should they need it. My guess is there will be a blitzkrieg should there not be a dismissal by next Wednesday. and if they did not have enough ammunition as of last night, the clincher was revealed late Friday night.

Once again, the breaking story comes from the New York Times:

Twenty-eight hours after a housekeeper at the Sofitel New York said she was sexually assaulted by Dominique Strauss-Kahn, she spoke by phone to a boyfriend in an immigration jail in Arizona.

Investigators with the Manhattan district attorney’s office learned the call had been recorded and had it translated from a “unique dialect of Fulani,” a language from the woman’s native country, Guinea, according to a well-placed law enforcement official.

When the conversation was translated — a job completed only this Wednesday — investigators were alarmed: “She says words to the effect of, ‘Don’t worry, this guy has a lot of money. I know what I’m doing,’ ” the official said.

It was another ground-shifting revelation in a continuing series of troubling statements, fabrications and associations that unraveled the case and upended prosecutors’ view of the woman. Once, in the hours after she said she was attacked on May 14, she’d been a “very pious, devout Muslim woman, shattered by this experience,” the official said — a seemingly ideal witness.

Little by little, her credibility as a witness crumbled — she had lied about her immigration, about being gang raped in Guinea, about her experiences in her homeland and about her finances, according to two law enforcement officials. She had been linked to people suspected of crimes. She changed her account of what she did immediately after the encounter with Mr. Strauss-Kahn. Sit-downs with prosecutors became tense, even angry. Initially composed, she later collapsed in tears and got down on the floor during questioning. She became unavailable to investigators from the district attorney’s office for days at a time.

Now the phone call raised yet another problem: it seemed as if she hoped to profit from whatever occurred in Suite 2806.

Game. Set. Match. There is so, so, much more of course (really, read the whole sordid set of facts) that absolutely guts any possibility of proceeding with the woman as a criminal victim against DSK but, Read more