So, Amazon, Visa, PayPal, Was It Worth Accepting Government Lies?

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Mark Hosenball reports that aside from some pockets of short-term damage, the impact of the Wikileaks leak of diplomatic cables has been embarrassing, but not damaging.

Internal U.S. government reviews have determined that a mass leak of diplomatic cables caused only limited damage to U.S. interests abroad, despite the Obama administration’s public statements to the contrary.

A congressional official briefed on the reviews said the administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers.

“I think they just want to present the toughest front they can muster,” the official said.

But State Department officials have privately told Congress they expect overall damage to U.S. foreign policy to be containable, said the official, one of two congressional aides familiar with the briefings who spoke to Reuters on condition of anonymity.

“We were told (the impact of WikiLeaks revelations) was embarrassing but not damaging,” said the official, who attended a briefing given in late 2010 by State Department officials.

[snip]

National security officials familiar with the damage assessments being conducted by defense and intelligence agencies told Reuters the reviews so far have shown “pockets” of short-term damage, some of it potentially harmful. Long-term damage to U.S. intelligence and defense operations, however, is unlikely to be serious, they said. [my emphasis]

More important than yet another indication that the Obama Administration has oversold the damage done by Wikileaks is the reason given by Hosenball’s Congressional source as to why they oversold that damage: to bolster legal efforts to shut down Wikileaks’ website.

The Administration lied, says a congressional official, to make it easier to shut down Wikileaks.

Now that’s important for several reasons. First, all this time the government has been pretending that the series of decisions by private corporations to stop doing business with Wikileaks were made by the businesses on their own. Surprise surprise (not!), it seems that the government was affirmatively trying to shut down Wikileaks.

Just as importantly, Hosenball’s story seems to suggest, the government was going to service providers–the same service providers they routinely go to on terrorist investigations–and lying to get them to do the government’s bidding. The government was making claims about the damage of the leak to convince service providers to shut down Wikileaks.

And companies like Amazon, Visa, and PayPal complied.

So, to these companies, now tainted with cooperation in government censorship, was it worth it? Was it worth being branded as a collaborator, knowing you were lied to?

And to Philip Crowley, whom Hosenball quotes talking about “substantial” damage: given your critique of Tunisia’s suppression of social media, and given that we now know you lied in the service of similar repression, do you still want to claim there’s no disjunct between claiming to support free speech while squelching that of Wikileaks?

American Democracy, Tunisia, and Wikileaks

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Update: BBC and al-Jazeera report that Ben Ali has left the country and security forces have arrested family members at the airport.

The simultaneous (and related) unfolding of the uprising in Tunisia and the latest Wikileaks events reveals a great deal about our own country’s support for democracy.

If you aren’t already, I recommend you follow @abuaardvark (aka Mark Lynch) so long as this crisis in Tunisia lasts. Not only is Lynch following the up-to-the-minute events closely on Twitter–such as the news that dictator Zine el Abidine Ben Ali just sacked his government and will hold elections six months from now. But he also has chronicled the strange silence about this popular uprising in the US, particularly among the NeoCons who used democracy promotion as their excuse to launch an illegal war in Iraq.

Barely a month goes by without a Washington Post editorial bemoaning Egypt’s authoritarian retrenchment and criticizing the Obama administration’s alleged failure to promote Arab democracy. But now Tunisia has erupted as the story of the year for Arab reformers. The spiraling protests and the regime’s heavy-handed, but thus far ineffective, repression have captured the imagination of Arab publics, governments, and political analysts. Despite Tunis’s efforts to censor media coverage, images and video have made it out onto social media and up to Al Jazeera and other satellite TV. The “Tunisia scenario” is now the term of art for activist hopes and government fears of political instability and mass protests from Jordan to Egypt to the Gulf.

[snip]

Perhaps they’ve had nothing to say simply because there has been little coverage of Tunisia in the Western media, and the United States has few interests or leverage in Tunis, making it a marginal issue for U.S. political debate. Tunisia is not generally on the front burner in American thinking about the Middle East. It’s far away from Israel, Iraq, and the Gulf, and plays little role in the headline strategic issues facing the U.S. in the region. Despite being one of the most repressive and authoritarian regimes in the region, Tunisia has generally been seen as a model of economic development and secularism. Its promotion of women’s rights and crushing of Islamist opposition has taken priority in the West over its near-complete censorship of the media and blanket domination of political society. Indeed, the United States has cared so little about Tunisia’s absolute rejection of democracy and world-class censorship that it chose it for the regional office of MEPI, the Bush administration’s signature democracy promotion initiative.

This is understandable, but hardly satisfying. I can understand the hesitation of U.S. officials to take a strong position on the side of either the protesters or the regime at this point, given the strategic complexities and the implications of taking any rhetorical stance. To my ears, at least, the U.S. message has been muddled, with some officials seeming to take the side of the protesters and warning against too-harsh repression and others seeming to avoid taking a stance. For what it’s worth, I told a State Department official in a public forum yesterday that the absence of major U.S. interests in Tunisia and the real prospect of change there make it a good place for the Obama administration to take a principled stand in favor of public freedoms and against repression.

Click through for his update–a response to a WaPo column regarding such populist uprising as a threat.

With Lynch’s comments in mind, consider two different versions of the role of Wikileaks in this uprising.

Elizabeth Dickinson has a piece that–perhaps too strongly–calls Wikileaks “a trigger and a tool for political outcry” in Tunisia.

Tunisia’s government doesn’t exactly get a flattering portrayal in the leaked State Department cables. The country’s ruling family is described as “The Family” — a mafia-esque elite who have their hands in every cookie jar in the entire economy. “President Ben Ali is aging, his regime is sclerotic and there is no clear successor,” a June 2009 cable reads. And to this kleptocracy there is no recourse; one June 2008 cable claims: “persistent rumors of corruption, coupled with rising inflation and continued unemployment, have helped to fuel frustration with the GOT [government of Tunisia] and have contributed to recent protests in southwestern Tunisia. With those at the top believed to be the worst offenders, and likely to remain in power, there are no checks in the system.”

Of course, Tunisians didn’t need anyone to tell them this. But the details noted in the cables — for example, the fact that the first lady may have made massive profits off a private school — stirred things up. Matters got worse, not better (as surely the government hoped), when WikiLeaks was blocked by the authorities and started seeking out dissidents and activists on social networking sites.

As PayPal and Amazon learned last year, WikiLeaks’ supporters don’t take kindly to being denied access to the Internet. And the hacking network Anonymous launched an operation, OpTunisia, against government sites “as long as the Tunisian government keep acting the way they do,” an Anonymous member told the Financial Times.

Compare that the very weird logic State Department Spokesperson Philip Crowley uses in his speech to a class on media and politics the other day.

No one is a greater advocate for a vibrant independent and responsible press, committed to the promotion of freedom of expression and development of a true global civil society, than the United States. Every day, we express concern about the plight of journalists (or bloggers) around the world who are intimidated, jailed or even killed by governments that are afraid of their people, and afraid of the empowerment that comes with the free flow of information within a civil society.

Most recently, we did so in the context of Tunisia, which has hacked social media accounts while claiming to protect their citizens from the incitement of violence. But in doing so, we feel the government is unduly restricting the ability of its people to peacefully assemble and express their views in order to influence government policies. These are universal principles that we continue to support.  And we practice what we preach. Just look at our own country and cable television. We don’t silence dissidents. We make them television news analysts.

Some in the human rights community in this country, and around the world, are questioning our commitment to freedom of expression, freedom of the press and Internet freedom in the aftermath of WikiLeaks.  I am constrained in what I can say, both because individual cables remain classified, and the leak is under investigation by the Department of Justice. But let me briefly put this in context and then I will open things up for questions.  WikiLeaks is about the unauthorized disclosure of classified information. It is not an exercise in Internet freedom. It is about the legitimate investigation of a crime. It is about the need to continue to protect sensitive information while enabling the free flow of public information. [my emphasis]

He sort of wanders back and forth between a discussion of press freedom and an insistence that persecution of Wikileaks is not a violation of that principle through the rest of his speech, at one point drawing a bizarre analogy between Coke’s secret formula and Google’s search algorithms and the US’ diplomatic secrets, as if our diplomatic secrets are the essence of our identity.

Maybe that was his point.

I find Crowley’s statement in the quoted passage interesting for several reasons. Read more →

WikiLeaks Media Files: Are They Definitely Fox?

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As a number of people are reporting, Julian Assange told John Pilger Wednesday that WikiLeaks has files on some media companies. Thanks to a PDF link made available by The Nation (see 12:05 update), here’s the exact quote from the New Statesman article in question.

If something happens to me or to WikiLeaks, ‘insurance’ files will be released. They speak more of the same truth to power, including the media. There are 504 US embassy cables on one broadcasting organization and there are cables on Murdoch and News Corp.”

I wanted to look at the exact quote, because coverage of this claim has been conflated into “insurance files = 504 cables = Murdoch, News Corp, and Fox.” That is, the assumption is that some of the insurance files pertain to a subset of 504 cables that pertain to a broadcasting organization that given the mention of Murdoch and News Corp, must be Fox.

That’s not necessarily the case: after all, Assange appears to have talked about insurance files, some of which pertain to the media, and then discussed 504 cables on one broadcasting entity, and then mentioned Murdoch and News Corp. It is possible that there are 504 cables on a broadcast outlet — something like ABC, which has a habit of laundering intelligence leaks, or NBC, owned by a defense contractor. These cables might reveal something like the Rent-A-General’s program, first exposed by NYT. And there are files on Murdoch and News Corp. generally (which could include any of his properties worldwide).

Mind you, in its coverage of the issue, the Guardian (which as it points out, has access to all the cables) doesn’t exactly correct such a misimpression, if it is one.

WikiLeaks: Julian Assange claims to have Rupert Murdoch ‘insurance files’

Founder claims WikiLeaks has more than 500 US diplomatic cables on one broadcasting organisation

Julian Assange, the founder of WikiLeaks, claimed today he was in possession of “insurance” files on Rupert Murdoch and his global media company, News Corporation.

Assange also claimed that WikiLeaks holds more than 500 confidential US diplomatic cables on one broadcasting organisation.

Speaking to journalist John Pilger for an interview to be published tomorrow in the latest edition of the New Statesman, Assange said: “There are 504 US embassy cables on one broadcasting organisation and there are cables on Murdoch and News Corp.”

Assange refers to these specific cables as “insurance files” that will be released “if something happens to me or to WikiLeaks”.

The Guardian has published stories based on more than 700 of the cables and has access to all 250,000.

Which I find all the more interesting, in that it suggests the media involved — including the Guardian, NYT, and Norway’s Aftenposten (which obtained its own complete set of the cables) — all have seen what Assange considers the insurance files relating to Murdoch, if not Fox.

So what would be shocking enough about Fox and or Murdoch to consider it part of an “insurance” file?

Our (We) Working Class Pundits

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Digby has a righteous rant about a discussion between Wolf Blitzer, Mary Matalin, and Paul Begala in which they revealed their utter divorce from the reality lived by most Americans as they discuss whether the $172,000 Robert Gibbs made as Press Secretary was a sacrifice. Here’s a taste:

According to these guys [Robert Gibbs’] job is right up there with curing cancer for sheer importance to the future of mankind.

Look, you can’t blame these two. They are both glugging from the same taxpayer trough half the time and have a big investment in believing that what they do is so special and so unique that they are just a little bit better than lesser people who toil at less exalted labor.

And evidently, they truly believe regular people don’t eat lunch at their desks and work long hours and have huge responsibilities. Or if they do, they are in very important jobs like media and investment banking where people are paid what they are “worth.”

You ought to read the whole thing.

I just wanted to add two things.

First, in the discussion, Matalin argues that, when you work at the White House “you really do work three shifts a day. You work 24 hours a day.” In response to which Begala elaborates,

The President’s trying to make a point here — he’s not trying to say that 172 thousand dollars a year is not a good paycheck. But compared to what the guy could be making… And, as Mary points out, if it’s a hourly wage, then Gibbs is probably making about fifty cents an hour. [my emphasis]

If Gibbs’ $172,000 annual salary were broken down into hourly salary, Begala says, with the assumption that he was working 24 hours a day 365 days a year,  then his hourly wage “is probably … about fifty cents an hour.”

Ahem.

There are 8,760 hours in a 24/7 year. Gibbs’ $172,000 salary for those 8,760 hours would work out to be $19.63 an hour. For someone working 40 hours a week, 50 weeks a year, that works out to be a yearly salary of $39,260. Which for household salaries–not individuals–falls in the middle quintile of yearly income in this country, and less than $3,000 less than what Wolf says is the “mean” salary in this country (he actually means “median” and he may be using just full time workers).

Gibbs needs a break, Obama says, and Begala and Matalin agree, because even assuming he’s been working 24/7, he’s been working as hard for the same money as half the country. So we should feel sorry for him.

Read more →

Did NYT’s Editors Alert the Government to Risen’s Source?

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Let me start by pointing to two data points about the case of Jeffrey Alexander Sterling–the apparent (and alleged) source for James Risen’s reporting on MERLIN.

First, as DOJ’s press release alleges, Sterling first contacted Risen in February or March of 2003. The press release later reveals he first became aware that the FBI was investigating him for leaking classified information in June 2003.

The indictment alleges that beginning a few weeks later, in February and March 2003, Sterling made various telephone calls to the author’s residence, and e-mailed the author a newspaper article about the weapons capabilities of Country A. According to the indictment, while the possible newspaper article containing the classified information Sterling allegedly provided ultimately was not published in 2003, Sterling and the author remained in touch from December 2003 through November 2005 via telephone and e-mail.

[snip]

According to the indictment, Sterling was aware by June 2003 of an FBI investigation into his disclosure of national defense information, and was aware of a grand jury investigation into the matter by June 2006, when he was served a grand jury subpoena for documents relating to the author’s book.

In other words, Sterling allegedly contacted Risen in early 2003, the NYT never published an article at that point (which would have been just as the Iraq war was starting). But by June 2003, the FBI was already investigating the alleged leak.

Couple that information with the battle between Risen and the NYT over the contents of his book (which I first noted back in 2006).

Through several months in late 2005, Mr. Risen and bureau chief Phil Taubman had clashed over whether Times editors would get a preview of the book’s closely guarded contents, sources said. It was not until Dec. 27—11 days after the wiretapping story had run—that Mr. Risen relented and allowed Mr. Taubman to see the manuscript. Mr. Risen insisted that senior editors who viewed the pre-publication copy sign nondisclosure agreements and agree not to discuss the book’s contents.

[snip]

A Times spokesperson responded to questions about the Risen book by deferring to the paper’s Ethical Journalism Guidebook, which says reporters “must notify The Times in advance” when writing books related to their beats, “so The Times can decide whether to make a competitive bid to publish the work.”

[snip]

In October 2004, Mr. Risen first presented editors with a story about the secret N.S.A. wiretapping program, the sources said. Late that same year, Mr. Risen also proposed writing a piece about an alleged foiled C.I.A. plot to deliver bogus atomic-bomb plans to Iran—another story that appears in State of War.

Mr. Risen left on book leave in January 2005. According to multiple sources, he told editors he was writing a book about former C.I.A. chief George Tenet—and did not reveal that he would be using previously reported Times material about the N.S.A. wiretapping in the book. [my emphasis]

So, according to DOJ, Risen first tried to publish a story on MERLIN in 2003. He tried again in late 2004 (after, it should be said, the NYT started protecting Dick Cheney and Scooter Libby in the Plame case). After that didn’t work, he went on book leave, saying he was writing about George Tenet and refusing to tell them it included the NSA story and the MERLIN story. Read more →

OMB’s New Security Memo Suggests WikiLeaks Is Media

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A number of outlets are reporting on the OMB memo requiring agencies to review their security procedures in response to WikiLeaks.

Now, this memo is explicitly a response to WikiLeaks. It’s a follow-up on a memo sent in November that names WikiLeaks.

On November 28, 2010, departments and agencies that handle classified national security information were directed to establish assessment teams to review their implementation of safeguarding procedures. (Office of Management and Budget, Memorandum M-11-06, “WikiLeaks – Mishandling of Classified Information,” November 28, 2010.)

And one of the questions it directs agencies to ask names WikiLeaks (and, in a sign of the government’s nimbleness, OpenLeaks) specifically.

Do you capture evidence of pre-employment and/or post-employment activities or participation in on-line media data mining sites like WikiLeaks or Open Leaks?

But the delay–almost six months between Bradley Manning’s arrest and the November memo, and another month until this memo, sort of reminds me of the roughly eight month delay between the time Umar Farouk Abdulmutallab tried to set his underwear on fire and the the time a bunch of grannies started getting groped at TSA security checkpoints.

Why the delay?

And from a document usability standpoint, this list of questions designed to help agencies identify weaknesses is a piece of shit. Trust me. No matter how good a bureaucrat is, asking them to use nine pages of nested bullets to improve a process is not going to work. This is simply not a credible process improvement effort.

I also wonder why it took WikiLeaks to initiate this effort. Just as an example, Los Alamos National Labs has been losing both storage media, computers, and BlackBerries going back a decade. You’d think the vulnerability of one of our nuclear labs would alert the government to our overall vulnerability to the loss of data via computer medium. Yet losing data to–presumably–our enemies did not trigger this kind of no-nonsense vulnerability assessment, WikiLeaks did.

The Russians and the Chinese are probably bummed that WikiLeaks will make it a teeny bit harder for them to spy on us.

All that said, Steven Aftergood makes one curious observation about the memo: this unusable list of nested bullets suggests that agencies should monitor employees’ contacts with the media.

Among other troubling questions, agencies are asked:  “Are all employees required to report their contacts with the media?”  This question seems out of place since there is no existing government-wide security requirement to report “contacts with the media.”  Rather, this is a security policy that is unique to some intelligence agencies, and is not to be found in any other military or civilian agencies. Its presence here seems to reflect the new “evolutionary pressure” on the government to adopt the stricter security policies of intelligence.

“I am not aware of any such requirement” to report on media contacts, a senior government security official told Secrecy News.  But he noted that the DNI was designated as Security Executive Agent for personnel security matters in the 2008 executive order 13467.  As a result, “I suspect that an IC requirement crept in” to the OMB memo.

I agree with Aftergood: it is troubling that an intelligence community requirement now seems to be applied to the federal workforce as a whole.

But isn’t this, at the same time, rather telling?

If a memo instituting new security reviews, explicitly written in response to WikiLeaks, institutes a policy of reviewing contacts with the media, doesn’t that suggest they consider WikiLeaks to be media?

Four Words You Didn’t Want to See Together Again

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“Judith” “Miller” “Embedded” “Iraq”

By Judith Miller

It was the suicide vest that clinched it.

John C. Myers, a veteran law enforcement officer embedded in the U.S. Army’s 1st Brigade of the 82nd Airborne Division in Iraq’s Anbar province, was certainly familiar with the outlawed amphetamine Captagon.

The bonus word that makes it all the more amusing?

“Newsmax”

Floyd Abrams’ Abuse of Power

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I promise I’m going to catch up on the WikiLeaks stuff in more detail soon, but I wanted to do a quick post pointing out the idiocy of Floyd Abrams’ attack on WikiLeaks. The logic of Abrams’ op-ed–which argues that WikiLeaks is different from the Pentagon Papers and therefore bad and also ohbytheway bad for journalists–is as follows:

Daniel Ellsberg chose not to release the last four volumes of the Pentagon Papers because he didn’t want to get in the way of diplomacy.

The diplomatic volumes were not published, even in part, for another dozen years. Mr. Ellsberg later explained his decision to keep them secret, according to Sanford Ungar’s 1972 book “The Papers & The Papers,” by saying, “I didn’t want to get in the way of the diplomacy.”

But Assange–because of what Abrams characterizes as WikiLeaks’ “general disdain for any secrecy at all”–did release diplomacy-damaging materials.

The recent release of a torrent of State Department documents is typical. Some, containing unflattering appraisals by American diplomats of foreign leaders of France, Germany, Italy, Libya and elsewhere, contain the very sort of diplomacy-destructive materials that Mr. Ellsberg withheld.

Abrams tries to draw a distinction between Ellsberg and Assange with what are apparently meant to be rhetorical questions.

Can anyone doubt that he would have made those four volumes public on WikiLeaks regardless of their sensitivity? Or that he would have paid not even the slightest heed to the possibility that they might seriously compromise efforts to bring a speedier end to the war?

From there, Abrams predicts that what he characterizes as WikiLeaks’ irresponsible actions will lead to legislation and legal cases restricting the First Amendment.

Mr. Assange is no boon to American journalists. His activities have already doomed proposed federal shield-law legislation protecting journalists’ use of confidential sources in the just-adjourned Congress. An indictment of him could be followed by the judicial articulation of far more speech-limiting legal principles than currently exist with respect to even the most responsible reporting about both diplomacy and defense. If he is not charged or is acquitted of whatever charges may be made, that may well lead to the adoption of new and dangerously restrictive legislation. In more than one way, Mr. Assange may yet have much to answer for.

In Abrams’ mind, Assange is responsible for the response the government is taking toward him, not the government actors themselves. Nor are those who misrepresent Assange’s and WikiLeaks’ actions–thereby making it easier for the government to curtail legal rights–responsible.

You know, people like Floyd Abrams.

Abrams’ purported rhetorical questions–can anyone doubt that WikiLeaks would have published the diplomatic volumes of the Pentagon Papers? can anyone doubt he wouldn’t have paid the slightest heed to efforts to end the war?–are one of two things that dismantle his entire argument laying the responsibility for the government’s overreaction to Assange with Assange. Because–as Digby has explained at length–we have every reason to doubt whether WikiLeaks would have published the diplomatic volumes of the Pentagon Papers. And we have solid evidence that WikiLeaks would shield really dangerous information.

Because they already have. And because they have now outsourced responsibility for choosing what is dangerous and newsworthy or not to a bunch of newspapers.

Indeed, back before WikiLeaks ceded that role to a bunch of newspapers, WikiLeaks was actually being more cautious with the publication of sensitive information than the NYT was.

So rather than blaming the government and the press for mischaracterizing what WikiLeaks has done here and then using that mischaracterization to justify an overreaction to that mischaracterization, Floyd Abrams just participates in it. WikiLeaks is responsible, Floyd Abrams says, and I’m going to misrepresent what they have done to prove that case.

Effectively, Abrams contributes to the myth that he says will result in new government action restricting the First Amendment.

Thanks Floyd.

But, as I said, there are two fundamental problems with Abrams’ argument.

Here’s the other one:

The Pentagon Papers revelations dealt with a discrete topic, the ever-increasing level of duplicity of our leaders over a score of years in increasing the nation’s involvement in Vietnam while denying it. It revealed official wrongdoing or, at the least, a pervasive lack of candor by the government to its people.

WikiLeaks is different. It revels in the revelation of “secrets” simply because they are secret. It assaults the very notion of diplomacy that is not presented live on C-Span. It has sometimes served the public by its revelations but it also offers, at considerable potential price, a vast amount of material that discloses no abuses of power at all.

[snip]

Taken as a whole, however, a leak of this elephantine magnitude, which appears to demonstrate no misconduct by the U.S., is difficult to defend on any basis other than WikiLeaks’ general disdain for any secrecy at all. [my emphasis]

Floyd Abrams’ entire argument about WikiLeaks is premised on his claim that these diplomatic cables demonstrate no abuse of power at all. No misconduct by the US. Read more →

The Misplaced US Determination To Indict Assange

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I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme. Read more →

Did the US Issue a Prior Restraint Request to the NYT, Too?

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Skdadl, who has been tweeting up a storm on the upcoming WikiLeaks dump, noted that the British government has issued D-notices regarding the upcoming dump, which is basically a non-binding request on editors to brief the government before doing a story.

The news came to light in two Tweets from WikiLeaks one of which said, “UK Government has issued a “D-notice” warning to all UK news editors, asking to be briefed on upcoming WikiLeaks stories.” The follow up pointed out that the notices were “Type 1” which relates to “Military Operations Plans and Capabilities”, and “Type 5” which relates to “United Kingdom Security and Intelligence Special Services.”

Here’s the content of the D-notice:

Subject: DA Notice Letter of Advice to All UK Editors – Further Wikileaks Disclosures

To All Editors

Impending Further National Security Disclosures by Wikileaks

I understand that Wikileaks will very shortly release a further mass of US official documents onto its internet website. The full scope of the subject matter covered by these documents remains to be seen, but it is possible that some of them may contain information that falls within the UK’s Defence Advisory Notice code. Given the large number of documents thought to be involved, it is unlikely that sensitive UK national security information within these documents would be recognised by a casual browser. However, aspects of national security might be put at risk if a major UK media news outlet brought such information into obvious public prominence through its general publication or broadcast.

Therefore, may I ask you to seek my advice before publishing or broadcasting any information drawn from these latest Wikileaks’ disclosures which might be covered by the five standing DA Notices. In particular, would you carefully consider information that might be judged to fall within the terms of DA Notice 1 (UK Military Operations, Plans and Capabilities) and DA Notice 5 (UK Intelligence Services and Special Forces). May I also ask you to bear in mind the potential consequential effects of disclosing information which would put at risk the safety and security of Britons working or living in volatile regions where such publicity might trigger violent local reactions, for example Iran, Iraq, Pakistan and Afghanistan? [my emphasis]

Of course, there’s something odd about this effort.

The intertoobz don’t have national boundaries.

So even if the Brits are successful at getting the British press not to cover these stories, that doesn’t prevent media outlets outside of the UK from reporting on them, making them available to be read within the UK (or, given that the concern seems to focus on our war zones, Pakistan).

Read more →