NYT’s Selective Press Prosecution Outrage Doesn’t Include WikiLeaks

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As a follow up to yesterday afternoon’s decision in the WikiLeaks grand jury subpoena case, it is, shall we say, interesting that the New York Times today comes out with and editorial slamming democracies that use secret evidence and maneuvers to prosecute journalists.

The editorial is titled No Way to Run a Democracy and it doesn’t spend one word of it on the rabid use of just those tactics in relation to WikiLeaks and Julian Assange (See here and here). Nor has there been any comparable outrage over the US actions against WikiLeaks journalists in any other NYT effort and/or article.

Now, make no mistake, the plight of investigative journalists in Turkey under threat from the administration of Prime Minister Erdogan is extremely troubling, and it is commendable that the Gray Lady has called it out. But it does make you wonder where the same outrage is in relation to the First Amendment eviscerating effort of the US Department of Justice toward WikiLeaks and Assange. An investigation which could, and if it is taken to its logical conclusion, should involve the Times itself.

Maybe it is because Bill Keller reached some agreement with the DOJ not to trash them in return for DOJ laying off the NYT during one of his endless tete a tetes with them over quashing news reporting, maybe Keller and the Times are fearful that they don’t have some kind of secret agreement with the DOJ, maybe it is the product of the merging of the media and government in the US, or maybe it is because of Keller’s irrational and unprofessional extreme dislike of, and contempt for, the “dirty” Julian Assange and WikiLeaks.

Whatever the reason, the stridence against the Erdogan government actions contrasted with the silence toward the domestic Obama government actions is telling.

Will Issa’s Fired Spokesperson Expose How Politico “Wins the Morning”?

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When news broke yesterday that Darrell Issa had fired his spokesperson, Kurt Bardella, for sharing emails with NYT reporter Mark Leibovich, I suggested,

I suspect Issa just fired his spokesperson because Issa cares more about staying in the good graces of Politico than NYT. #WinTheMorning

It was John Harris’ complaint that his reporters’ emails had been forwarded, after all, that pressured Issa to launch the investigation in the first place.

Yet, given the ferocity of this report on Bardella’s firing–with even Republicans predicting lasting damage to Issa’s work as Chair of the Oversight Committee–the pissing match between the NYT and Politico seems to be ongoing.

Some Republicans worry about the damage the affair could cause Issa’s work on the committee.

“Yes it could,” said one Republican staffer who has long known Bardella, when asked if this could affect the committee’s work. “Issa actually has a job to do. He needs the press and the public to trust him to be able to do that job effectively. He needs to hire someone the press trusts and can work with. If they don’t trust him, and in turn can’t reach the public and do his job effectively, well.”

Speaker John Boehner did not get directly involved in the situation, but his staff did contact Issa’s office on Monday night after the story broke.

“When he got here, Issa had an ego as big as California,” said another GOP lawmaker, speaking on condition of anonymity. “Then he got better for a while. Now, his ego has returned with a vengeance.”

For some reason, Politico is still pissed at Issa, even though he moved quickly to fire Bardella.

Ryan Lizza might have some answers as to what that reason might be. He reveals that Bardella was very open within the office–including Issa’s Chief of Staff–that he was sharing this information.

“Do the other folks in the office know?” I asked.

“Yeah,” Bardella said, and he gave me an example of the type of stuff he shares: “Here’s this inquiry I got from a reporter. Here’s what I said to my staff about it, here’s the story, here’s the e-mail I just got from so-and-so, another reporter who’s upset that I gave his story to [someone else].”

But the most important aspect of what Bardella might be sharing with the NYT, Lizza says, is the background to a Bardella quote he included in his profile on Issa’s publicity seeking.

[R]eporters e-mail me saying, “Hey, I’m writing this story on this thing. Do you think you guys might want to investigate it? If so, if you get some documents, can you give them to me?” I’m, like, “You guys are going to write that we’re the ones wanting to do all the investigating, but you guys are literally the ones trying to egg us on to do that!”

To me that last quote was one of the most important things Bardella told me. The rest of it—that offices clash over how to leak info and that bookers and reporters are competitive—is interesting but relatively well known, and not very relevant to a piece about Darrell Issa. But that Bardella accused reporters of offering to collaborate with Issa as he launches what will inevitably be partisan investigations of the Obama Administration seemed jaw-dropping.

Lizza suggests (though he doesn’t voice this explicitly) that Bardella may have shared evidence of this kind of collaboration between Politico and Issa’s staff with Leibovich.

So go back to this widely cited article on the massive investigations Issa purportedly wanted to do, and look at Mike Allen’s pitching of it in the video.

Issa won’t have a shortage of targets. He’s been hammering for better tracking of the stimulus and has a growing list of other investigative targets, including the housing meltdown and the bank bailout.

[snip]

Issa also is looking to dig into procurement and government contracting, and he seems sure to return to the Countrywide VIP program — which has subpoenaed records en route to the Capitol. He’s also got inquiries into Fannie Mae and Freddie Mac’s role in the financial collapse. And with earmarks all but gone from the Capitol, Issa will turn his fire toward the White House and the far larger sums of cash controlled by the executive branch at a time of huge deficits.

“We really want to study presidential earmarks and the grant-making process: How do we take all this discretionary money and see what is necessary,” Issa said. “The debate on how to shrink the federal government is at the core of our problem of government not doing its job.”

And consider the possibility that all these investigations Jake Sherman (one of the bylined reporters of the story) and Allen “reported” Issa wanted to do were actually investigations that Politico was pushing Issa to do. (Allen’s and Sherman’s emails were the ones that John Harris complained about.) That is, consider the possibility–and this is just speculation, mind you–that all these investigations were suggested by Politico?

If Leibovich’s book were to show that Issa’s investigations were the product of collaboration with Politico, it would not just doom Issa’s hopes of being Obama’s nemesis, but it would expose Politico as the Republican operation it is.

Update: John Harris and Jake Sherman’s names fixed. And more coffee consumed.

Liar Calls Access Journalist a Pot

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Even before Tom Ricks handed his blog over to Bob Woodward to rip Donald Rumsfeld a new asshole, Ricks shared this quote from H.R. Haldeman about Rummy as a way to introduce Rummy’s dismissal of Ricks’ Fiasco and Woodward’s books.

So in my research on the Vietnam War I was paging through H.R. Haldeman’s diaries to see what he says about General Creighton Abrams and was surprised to come across his comment about a former defense secretary we all know: “typical Rumsfeld, rather slimy maneuver.” (657)

As Ricks said, pot, kettle.

But proving there is no honor among thieves (and that you can’t use too many cliches before noon), Rummy has now hit back at Woodward.

Former Defense Secretary Donald Rumsfeld’s chief of staff accused Washington Post reporter Bob Woodward on Tuesday of practicing “access journalism,”  and said that Woodward has been repeatedly accused of “tilting the facts,”  “misleading remarks,” “disingenuous statements,” and placing “book sales above journalism.”

Keith Urbahn, who is also Rumsfeld’s official spokesperson, made the accusations in a statement to reporters in response to Woodward’s scathing critique of Rumsfeld’s recently released memoir, Known and Unknown.

[snip]

Urbahn accused Woodward of favoring his sources and granting them anonymity in exchange for access, while pushing his own storyline ahead of the facts.

“The well known story about Bob Woodward is that he practices what is derided as ‘access journalism,’ whereby he favors those who provide him with information and gossip and leak against their colleagues,” he said in a statement, which was also posted on Rumsfeld’s Facebook page. “Those who refuse to play along, such as Donald Rumsfeld, then pay the price.”

Another cliche: “I’m rubber and you’re glue…”

Now, as I suggested yesterday, for all of Woodward’s faults, I was floored when I saw how meticulously Woodward kept his notes as exhibited at the Libby trial. Plus, his post yesterday was really well documented. Not to mention we all know Rummy’s a pathological liar.

So I’m really just sharing Rummy’s response because I am loving watching these crotchety old Nixon-era zombies go after each other.

Plus, I secretly have my fingers crossed that Cheney will join in any moment now.

Bob Woodward, Blogger

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Let me just say, without qualification, that of the high profile journalists whose techniques were discussed or entered as evidence in the Scooter Libby trial, Bob Woodward had the best note taking. Judy Miller, Matt Cooper, Bob Novak, Andrea Mitchell (and, I’m sure, Marcy Wheeler)? They all were put to shame by Bob Woodward’s exactitude and organization in the way he recorded his interactions with government officials.

Which is why I find it so amusing to see Woodward take to Tom Ricks’ blog to rip Donald Rumsfeld’s memoir to pieces. Woodward knows he has the documentation to back up his critique and he cites the notes of his October 23, 2003 and July 7-8, 2006 interviews with Rummy in detail. Here’s the cattiest example:

Near the end of the Oct. 23, 2003 interview — page 39 of my transcript — this interchange took place, illustrating the worst and the best of him:

Rumsfeld: “And you lie, you told people I stuck a finger in your chest. I never stuck a finger in your chest.”

Woodward: “Yes, sir, yes, yes.”

Rumsfeld: “I never touched your chest.”

Woodward: “I swear you did.”

Rumsfeld: “Did I?”

Woodward: “Yeah, you did.”

Rumsfeld: “Physically?”

Woodward: “You did, physically, it wasn’t hostile you were illustrating a point.”

Rumsfeld: “Good.”

Woodward: “I explained that. I thought you scored a very good point.”

Rumsfeld: (laughter)

Woodward: “Which was about surprise and off balance.”

Rumsfeld: “Oh yes, I did. I remember that you’re right …Yeah, right, you are right …I said you got to get a little off balance — I’ve done that. He’s right, I’m wrong.”

He had moved from calling me a liar to acknowledging that my memory was correct and his wrong. He probably should have been more tentative at both the front end and the back end, but there it was, Rumsfeld in full.

Meanwhile, Woodward exposes Rummy’s own inconsistent claims about his notes.

“I don’t have notes,” Rumsfeld insisted. “I don’t have any notes.”  His memoir cites his personal handwritten notes dozens of time.

Sure, Woodward does this, in part, to ensure no one questions the accuracy of his own books as authoritative narratives of–among other things–the timeline leading up to the Iraq war. He also seems, in part, to be protecting Bush.

And sure, there are tidbits where the old Woodward shines through, even in his own self-reporting.

On January 9, 2002, four months after 9/11, Dan Balz of The Washington Post and I interviewed Rumsfeld for a newspaper series on the Bush administration’s response to 9/11. According to notes of the NSC, on September 12, the day after 9/11, Rumsfeld again raised Iraq saying, is there a need to address Iraq as well as bin Laden?

When Balz read this to Rumsfeld, he blew up. “I didn’t say that,” he said, maintaining that it was his aide Larry DiRita talking over his shoulder. His reaction was comic and we agreed to treat it as off the record. But Balz persisted and asked Rumsfeld what he was thinking. [bold original; underline emphasis mine]

But I gotta say, for a newbie blogger, Woodward sure took the medium.

The Alternative to NYT’s Subservience: Actual Journalism

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The Guardian has its version of the Arthur Brisbane article approving of NYT’s decision to withhold all mention of Raymond Davis’ identity. One of the two main reasons why the Guardian chose to publish even as CIA and MI5 were warning that that might endanger Davis is the one I keep pointing out: all the people who might harm Davis already knew he was some kind of spook.

But the deciding factor was that Davis’s CIA link wasn’t actually a very big secret in Pakistan. For days newspapers had been describing him as a spy; by Sunday morning, 20 February, the headline in one of Pakistan’s national newspapers, The Nation, was “Raymond Davis linked to CIA”.

“Those who might wish to harm Davis – inside the prison, or outside – had already made up their minds about who he was or what he represented. They don’t need our story to motivate them,” our correspondent said.

The Guardian, it seems, actually thought through the logic behind the claim that revealing Davis’ identity would endanger him and, like me, found it dubious.

But the other reason is even more interesting, given the NYT’s claimed helplessness in the face of the government request that it sit on the story: the Guardian did additional reporting to check the claims of the government agencies.

The Guardian’s correspondent in Islamabad, an experienced journalist, investigated and wrote the story. He said:

“We took the CIA’s suggestion that Davis would be at risk if we ran the story very seriously. I interviewed the Punjab law minister, Rana Sanaullah, who described the conditions of Davis’s incarceration. He said there were teams of dedicated guards and Punjab rangers deployed outside the prison, and visits from embassy personnel. I also interviewed a senior intelligence official who said ‘all possible measures’ were being taken to ensure his safety, including moving 25 jihadi prisoners to other facilities.”

Our correspondent also spoke to human rights groups about the conditions in the prison and what was happening in there.

In other words, having been told something by people in authority, the Guardian’s reporter actually checked the truth of the matter, and assessed the government’s claims against that truth.

Last I checked, that’s what newspapers are supposed to do. The NYT, by contrast, describes only having assessed whether the State Department’s warnings were “credible” or not.

As profoundly unpalatable as it is, I think the Times did the only thing it could do.

[snip]

In military affairs, there is a calculus that balances the loss of life against the gain of an objective. In journalism, though, there is no equivalent. Editors don’t have the standing to make a judgment that a story — any story — is worth a life. I find it hard to second-guess the editors’ assessment that the State Department’s warning was credible and that Mr. Davis’s life was at risk in a country seething with anti-American feeling.

And, having been told Davis’ life is at risk (an assessment I agree with), the NYT didn’t think further to weigh whether his life would be at increased risk if NYT’s American readers knew what Pakistanis already knew, that he is a spook.

Such critical thinking, apparently–along with the extra work to check official government sources that the Guardian did–appears to no longer be the job of the NYT.

NYT: All the News That’s Fit to Authoritatively Quash

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There are a couple of funny things about NYT’s public editor Arthur Brisbane’s article approving the NYT’s decision to sit on news of Raymond Davis’ CIA affiliation. Check out whom he consults for guidelines on what the NYT should or shouldn’t publish.

Bob Woodward, who wrote about secret operations in Pakistan in his recent book “Obama’s Wars,” described for me the competing priorities in play in this situation. On one hand, he said, the Davis affair is just the “tip of the iceberg” of intensive secret warfare the United States is waging in the region. “I think the aggressive nature of the way all that is covered is good because you are only seeing part of the activity, ” said Mr. Woodward, who also is associate editor of The Washington Post.

“But you just don’t want to get someone killed,” he added. “I learned a long time ago, humanitarian considerations first, journalism second.” [my emphasis]

If you’re asking Woodward–the guy who withholds everything until he can package it into a semi-official narrative, the guy whose reporting is all officially sanctioned at this point–whether to withhold news or not, you might as well be asking State Department spokesperson PJ Crowley himself for guidelines.

They’re both government flacks, after all.

But what I find really amusing is the logic that went into NYT’s decision to withhold Davis’ affiliation. Brisbane reveals the content of Crowley’s call to Keller.

Mr. Davis was charged with murder after shooting two Pakistani men in Lahore on Jan. 27. The Times jumped on the story, but on Feb. 8, the State Department spokesman, P.J. Crowley, contacted the executive editor, Bill Keller, with a request. “He was asking us not to speculate, or to recycle charges in the Pakistani press,” Mr. Keller said. “His concern was that the letters C-I-A in an article in the NYT, even as speculation, would be taken as authoritative and would be a red flag in Pakistan.”

In other words, Crowley called Keller and told him that if the NYT published what newspapers in Pakistan were already publishing, it would be regarded as “authoritative.”

Note, NYT’s crack public editor didn’t bother to explain who would regard it as authoritative. Nor did he explain how that would add to the considerable danger to Davis’ life. Crowley apparently just said someone might die, and the NYT decided not to report without, apparently, thinking through the logical problem with Crowley’s claim (though if they were so worried about people dying, maybe they shouldn’t have ginned up a war against Iraq?).

Now, I fully acknowledge that a great number of people here in the US have ignored the last decade of the NYT’s coverage and thus still regard it as “authoritative.”

But those people are here in the US.

Furthermore, an entire group of people who pose a threat to Davis–the people protesting–would only even see the NYT article if they happen to have InterToobz access and reasonably good English. (And it doesn’t matter anyway, given that they already fully believed Davis was CIA or Blackwater. Hell, many of them probably believe the NYT is CIA too.)

The other people who pose a threat to Davis–his jailers–already had all the confirmation they needed he was a spook in the equipment he had when they arrested him.

So basically, Crowley’s request represented a big handjob to the NYT’s inflated self of its own “authoritativeness,” and because the NYT found it credible or at least flattering that their alleged authoritativeness would endanger Davis in a way that all the reporting in Pakistan didn’t already, they withheld publication.

Read more →

Did FBI First Request James Risen’s Phone Records Using the CAU Program?

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In Josh Gerstein’s report on DOJ’s collection of James Risen’s phone and business records, he quotes University of Minnesota law professor Jane Kirtley saying that the government doesn’t give reporters notice when it collects telephone or business records on them.

Kirtley also said journalists often aren’t notified when the government asks telecom companies, banks or other service providers for their records.

DOJ must inform reporters if their call records have been subpoenaed

That may be the case in practice. But DOJ policy actually requires that journalists receive notice if their phone records are subpoenaed.

(g) In requesting the Attorney General’s authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply: (1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General’s authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.

(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days.

(4) Any information obtained as a result of a subpoena issued for telephone toll records shall be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes.

From that we should assume that DOJ got the phone records by subpoenaing Sterling’s records, not Risen’s. But if that’s the case, you’d think the government would have just told Risen that when his lawyer asked whether his records had been subpoenaed back in 2008.

Risen said the government never notified him that they were seeking his phone records. But he said he got an inkling in 2008 that investigators had collected some information about his calls.

“We heard from several people who had been forced to testify to the grand jury that prosecutors had shown them phone records between me and those people—not the content of calls but the records of calls,” he said. “As a result of what they told us, my lawyers filed a motion with the court as asking how the Justice Department got these phone records and whether or not they had gotten my phone records.”

“We wanted the court to help us decide whether they had abided by the attorney general’s guidelines,” Risen said. “We never got an answer from the court or the government.”

In other words, there may be no cause for suspicion, except for the suspicious funkiness on the government’s part.

DOJ has refused to inform at least one reporter his or her records were subpoenaed

Now, there is one case we know of where DOJ collected information on a reporter’s phone records and did not inform him or her. The DOJ Inspector General Report on Exigent Letters describes three cases in which reporters’ phone records were collected through the telecom’s onsite Communications Analysis Unit. Two of these were collected using exigent letters; in both, the editors (for stories published in both the NYT and WaPo) and the journalist (for an Ellen Nakashima story) were informed the reporters’ records had been collected.

In the third case, the records were collected with a grand jury subpoena. Here’s what we know about the collection:

  • The investigative team included two federal prosecutors who appear to belong to a counterintelligence group at DOJ, an AUSA from the jurisdiction in which the grand jury was seated who was rubberstamping records for the investigation, the FBI case agent, and intelligence analysts.
  • The FBI case agent asked the CAU agent about how to do a phone records subpoena for the leak investigation, and the CAU agent referred the case agent to the telecom analysts at CAU for help with the subpoena. Following a meeting with (I think) an AT&T analyst, the case agent asked that analyst for boilerplate language to make sure the subpoena was “as encompassing as possible.” It appears from the report (though this information is highly redacted) that the resultant subpoena may have asked for the community of interest of the suspected leaker’s numbers. That is, it appears the subpoena asked for a network analysis of all the people who had directly contacted the target.
  • One of the two prosecutors used that boilerplate language to write up attachments to the subpoena; the rubberstamp AUSA never saw the attachments. This was the first subpoena the rubberstamp AUSA signed in the case.
  • The prosecutor that generated the subpoena claims–with an undated document to back up that claim–that the case agent told him the subpoena would not collect phone records for the reporter that–they both knew at the time–had been in phone contact with the suspected leaker. The case agent, however, did not recall such a discussion and claims it was “very unlikely” such a conversation occurred. The implication of this seems to be that the case agent knew full well he’d be getting the reporter’s call data.
  • In talking to a counterintelligence Special Agent, the prosecutor who generated the subpoena learned that such a subpoena could produce the records of reporters; he also learned there was a way to write the subpoena to avoid that from happening. Once he realized that, he had conversations with other DOJ lawyers and supervisors about what to do; they all agreed to seal the records. Though they sealed the records of the case agent and deleted them from his computer, they didn’t ask what CAU had done with the records, much less ask the CAU analyst to delete the records.
  • When the IG learned about all this, they finally checked whether this information got loaded into the investigative database. The target’s records were entered into the FBI database; the IG did not find any reporters’ information uploaded, though much of the report’s discussion on this topic is redacted.
  • DOJ’s Criminal Division informed the Court overseeing the grand jury of the subpoenas and the “corrective actions” taken.

After learning all this, the IG asked DOJ whether it should have notified the reporter in question per the policy cited above. Here’s what happened:

The Criminal Division and the OIG asked the Department’s Office of Legal Counsel (OLC) to opine on the question when the notification provision in the regulation would be triggered. Read more →

The Shirley Sherrod Complaint Against Andrew Breitbart

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As many readers already know, Shirley Sherrod has filed a lawsuit against Andrew Breitbart over his statements, and the doctored and manipulated video he published, that resulted in her to losing her job at the US Department of Agriculture. Although Ms. Sherrod was not technically fired by the Obama Administration, she was ordered to resign immediately. Ms. Sherrod promised in late July of 2010 that she would sue Breitbart, and now she has done so, with the added ironic addition of effecting service of the summons and complaint on him at the Conservative Political Action Conference (CPAC).

What no one has seen yet is the actual complaint filed in the matter. Here it is in all its 42 page glory.

The first thing you will note is that the complaint is filed against not just Andrew Breitbart, but Breitbart associate, writer and putative producer of BreitbartTV, Larry O’Connor, as well as the “John Doe” from Georgia Breitbart claims originally forwarded the video.

The second thing you will note is the complaint is framed in terms of “defamation, false light and intentional infliction of emotional distress” and was filed in the District of Columbia Superior Court. The choice of DC Superior Court is fascinating; at first glance, it appears the complaint could have been filed either in Georgia District or DC District federal courts, perhaps even a Georgia state court (although that seems more problematic). Why exactly did the plaintiff choose DC Superior Court? I have already made inquiry of Ms. Sherrod’s attorney on this question but, until a formal answer is received, I think it a safe assumption they considered it the most favorable venue for convenience, procedure and potential jury composition. And I think that is pretty smart lawyering by the way.

The complaint is long, and very well composed, but the gist of the case is contained here:

3. Although the defamatory blog post authored by Defendant Breitbart purported to show “video proof” that Mrs. Sherrod exhibited “racism” in the performance of her USDA job responsibilities, the short two-minute thirty-six (2:36) second video clip that Defendants embedded in the blog post as alleged “proof” of this defamatory accusation was, in truth, an edited excerpt from a much longer speech by Mrs. Sherrod that demonstrated exactly the opposite. In sharp contrast to the deliberately false depiction that Defendants presented in the defamatory blog post, the unabridged speech describes how, in 1986, working for a non-profit group that helped poor farmers, Mrs. Sherrod provided concern and service to a white farmer who, without her help, would almost certainly have lost his farm in rural Georgia.

4. Specifically, Defendants defamed Mrs. Sherrod by editing and publishing an intentionally false and misleading clip of Mrs. Sherrod’s speech and added the Read more →

Egyptian Trash Talk

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Hi there denizens of this strange blog. I am a spooky hacker (No como se Adrian Lamo) and have determined there is far too much negativity in the common daily activities here. I protest. Like an Egyptian. Time to accentuate the positive and eliminate the negative. So here is a little music with which to celebrate what can be accomplished by the youth of a country when they are engaged, mad as hell and not going to take it any more.

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For years, we have been trying to figure out what it will take to wake up the American government, Congress, powers that be and get them to return to the ethos of what this country – the United States – is supposed to stand for and exemplify. Instead of watching Obamaco Organizing For America and Move On lamely and pathetically try to suck up and pray the youth will come out and vote for centrist, status quo, Bush-Lite bullshit in 2012, maybe we should be telling and encouraging the youth to figure out where the American version of Tahrir Square is and helping them get there. It is the least we can do. Seriously.

Our generation has borne the climate change deniers, Tea Party, evolution deniers, Andrew Breitbart and Fox News horse manure and propounded freaking Barak Obama as the hopey-changey salvation. In short, we are totally fucked. Turn the gig over to our kids and get out of the way. If Egypt has proven anything which can be taken home here, it is that we need to be talkin bout a new generation. We are done and have screwed the pooch big time; it is up to them, but we can help them and “prepare the battlefield”.

Okay. Here is the legal disclaimer. There is no way in hell I was going to post the fucking Bangles, even though I kind of like Walk Like An Egyptian. Not gonna do it. So, Live at Pompeii may not quite be Egyptian, but close enough for rock and roll. By the way, I think Suleiman is Pink.

Abbe Lowell’s Leak as Governance Theory

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Josh Gerstein links to this fascinating filing from Abbe Lowell, the lawyer who successfully got leak charges against AIPAC employees dismissed, and now representing a former State Department contractor, Stephen Kim, alleged to have leaked Top Secret information on North Korea to Fox. Gerstein explains:

Stephen Kim, who worked at State as an intelligence adviser before being dismissed as a result of the leak probe, was indicted last August on one count of disclosing classified information and another of lying to the FBI. The charges appear to stem from information that Fox News reporter James Rosen received in June 2009 about North Korea’s plans to conduct a nuclear test.

In motions filed earlier this week, Kim’s defense team, Abbe Lowell, Paul Thompson and James Commons, argue that the charges against Kim should be dismissed because they’re legally flawed. One argument is that the Espionage Act under which Kim was charged is too vague when it comes to situations involving verbal statements to someone outside government rather than giving classified documents to someone. (Kim was not charged with espionage.)

The defense lawyers also mount a defense of leaking as routine and vital to modern American government and note that the law gives no indication of who is “entitled to receive” closely-held defense secrets and who isn’t.

The last bit is what I find particularly interesting. Lowell is obviously doubling down on his successful defense in the AIPAC case by arguing that leaking classified information is central to our system of governance.

Government leaking is not a new phenomenon. What makes these prosecutions particularly worthy of close scrutiny is the fact that the Executive Branch leaks classified information often to forward several of its goals and then prosecutes others in the same branch for doing the same thing. In fact, this country has a long and storied history of government officials leaking information to the press. In one of the earliest leaks in this country s history, Benjamin Franklin publicly confessed to leaking letters authored by loyalist Thomas Hutchinson which were later published in the Boston Gazette. 5 Albert Henry Smyth The Writings of Benjamin Franklin 448 (1905). President George Washington was incensed upon discovering that the confidential terms of Jay’s Treaty had been leaked to a newspaper editor. Todd Estes The Art of Presidential Leadership: George Washington and the Jay Treaty, 109 Virginia Magazine of History and Biography (2001). In one of the most storied leaks in history, the New York Times published sections of the so-called “Pentagon Papers ” a top-secret Department of Defense report on America s political and military involvement in Vietnam. Neil Sheehan Vietnam Archive: Pentagon Study Traces Decades of Growing U.S. Involvement, N.Y. Times June 13, 1971 , at A1. The leak revealed a deliberate pattern of government deception to mislead the country about the government’s intentions to expand the war efforts in Vietnam. Id The Abu Ghraib prison abuse scandal is another example of a leak that called into question important policies the government had tried to keep secret. Seymour M. Hersh, Torture at Abu Ghraib, The New Yorker, May 10, 2004, at 42. And the disclosure of Valerie Plame as an operative for the CIA was a government leak, at the highest levels, to advance an important policy interest of the Bush Administration. David Corn Plamegate Finale: We Were Right; They Were Wrong, The Nation (Oct. 22, 2007). In this country s history, sensitive information has routinely been leaked to the press by officials at all levels of government, causing New York Times reporter James Reston to remark, “[t] ship of state is the only known vessel that leaks from the top.” David E. Rosenbaum, First a Leak, Then a Predictable Pattern, N.Y. Times, October 3 2003.

The practice of leaking has evolved over time and has become so widespread that it is not uncommon to open a national newspaper and find multiples articles attributing their sensitive content to anonymous government sources. During meetings with the press, government offcials and members of their staffs routinely disclose sensitive information to further a variety of legitimate policy objectives. Members of the press then publish the information for consumption by the populace. As the government has imposed ever-more stringent restrictions on information, while simultaneously broadening its definition of what constitutes classified information, leaking has become essential to provide context for messages delivered to the public through official channels. Although reliance on a “leak system” is counterintuitive for a nation that prides itself on open government and places immense value on democratic traditions, it has become a necessary practice, facilitating the exchange of information between the government and its constituency. Read more →