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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 →

When Did Adrian Lamo Start Working with Federal Investigators?

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The first suspicious moment in the chats between Adrian Lamo and Bradley Manning occurred at 12:54 on May 22–ostensibly the second day of chat communication between them (though Manning had sent Lamo encrypted emails for an unspecified period of time before that point). The BoingBoing version of the logs shows that Manning had just referenced 260,000 cables that, he went on to say, would give Hillary Clinton and other diplomats a heart attack when they were released. The chat was seemingly plagued by 3 minute delays in message transmission, with Lamo’s side reporting resource issues. Lamo tells Manning he’s going for a cigarette–“brb”–but that he should “keep typing.”

(12:54:47 PM) Adrian: What sort of content?
(12:56:36 PM) Adrian: brb cigarette
(12:56:43 PM) Adrian: keep typing <3

It is over 45 minutes before Lamo returns from his “cigarette” at 1:43:51. In the meantime, Manning did as he was told, typing out agonized confessions about how isolated he was. After Lamo returned from his “cigarette,” all the resource issues appear to be fixed and the delay in transmission appears to be gone, with response time in the 9 to 20 second range. It seems likely that Lamo did something other than smoke a cigarette in those 45 minutes. It appears he altered something technical on his side of the chat, chats that Lamo had directed Manning to use instead of encrypted emails.

Upon returning, Lamo immediately reverts back to Manning’s comment just after he left for his “cigarette,” picking up on the reference to diplomatic scandals. Using that as a segue, Lamo asks Manning to prove his bona fides.

(1:43:51 PM) Lamo: back
(1:43:59 PM) Manning: im self medicating like crazy when im not toiling in the supply office (my new location, since im being discharged, im not offically intel anymore)
(1:44:11 PM) Manning: you missed a lot…
(1:45:00 PM) Lamo: what kind of scandal?
(1:45:16 PM) Manning: hundreds of them
(1:45:40 PM) Lamo: like what? I’m genuinely curious about details.
(1:46:01 PM) Manning: i dont know… theres so many… i dont have the original material anymore
(1:46:26 PM) Lamo: play it by ear
(1:46:29 PM) Manning: the broiling one in Germany
(1:47:36 PM) Manning: im sorry, there’s so many… its impossible for any one human to read all quarter-million… and not feel overwhelmed… and possibly desensitized
(1:48:20 PM) Manning: the scope is so broad… and yet the depth so rich
(1:48:50 PM) Lamo: give me some bona fides … yanno? any specifics.

So Manning mentions the cables, Lamo leaves and fixes technical issues on the chat, and Lamo returns to demand specifics about what the 260,000 cables include.

Over the course of that allegedly first substantial conversation, Lamo’s attitude towards Wikileaks varies. He first asks a generic question.

(12:46:17 PM) Adrian: how long have you helped WIkileaks?

He then makes what–from the context of the logs thus far released, at least–appears to be an unsupported insinuation (and one that, given current reports about the Administration’s prosecution strategy, is a critical issue): that Manning “answers to” Julian Assange.

(1:51:14 PM) Lamo: Anything unreleased?
(1:51:25 PM) Manning: i’d have to ask assange
(1:51:53 PM) Manning: i zerofilled the original
(1:51:54 PM) Lamo: why do you answer to him?
(1:52:29 PM) Manning: i dont… i just want the material out there… i dont want to be a part of it

So, in spite of the fact that just two days before this exchange, Lamo had solicited donations for Wikileaks, he still suggested it was a problem if Manning “answered to Julian Assange.”

Lamo then immediately presses a point he would return to numerous times in their chats–a probe about their operational security.

(1:52:54 PM) Adrian: i’ve been considering helping wikileaks with opsec
(1:53:13 PM) bradass87: they have decent opsec… im obviously violating it

Then there’s a gap of about 10 minutes in the published chat logs during which–from the context–further conversation about Assange personally appears to have taken place. Such content is suggested from the way the chat moves from Manning reporting he is a “total fucking wreck” to returning to Manning’s relationship with Assange, with Manning seemingly correcting what appears to have been a Lamo suggestion that he–Manning–is a “volunteer” (remember, Lamo was pretending he wanted to “volunteer” to help Wikileaks with operational security).

(2:04:29 PM) Manning: im a source, not quite a volunteer
(2:05:38 PM) Manning: i mean, im a high profile source… and i’ve developed a relationship with assange… but i dont know much more than what he tells me, which is very little

Again, note how this exchange–Manning’s apparent correction regarding his relationship with Assange–actually hurts the reported current prosecution strategy of painting the Assange-Manning relationship as something other than a journalistic one.

Now, one of the many narratives he would tell about his role in turning Manning in,  Lamo suggested he contacted the military when he heard that Manning had accessed the 260,000 cables (though Lamo’s story varies on what day he contacted the Feds). Which is why I find this sequence–which Wired summarized but did not publish in its own publication of the chat logs–so interesting. All of the narratives about how Lamo came to out Manning to investigators start a day or two after this curious day of activity.

Yet already on this first substantive day of chat logs, Lamo appears to be fixing technical issues in the chat, demanding specific evidence about the cables, and–most suspiciously–presenting seemingly contradictory opinions about Wikileaks and Assange that had the effect of eliciting information about operational specifics and details on Assange’s own role in Wikileaks’ operations.

Gawker Coughs Up a Misleading Hairball On Bradley Manning

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By now you have probably heard of the serious issue regarding the dehumanizing and mentally debilitating conditions of Bradley Manning’s pre-trial detention by the US Military. Glenn Greenwald has written on the nature and import of the conditions, our own Dr. Jeff Kaye has described the medical and psychological harm from such tactics, as has Atul Gawande, and the UN Special Rapporteur has announced an investigation.

Into this serious legal, medical and psychiatric topic has stepped, of all sources, Gawker Media and its contributor John Cook with a condescending article titled “Bradley Manning Would Like Softer Blankets, Exercise, and More Television“. It is clearly a topic Cook and Gawker ought to leave to better informed and relevantly trained reporters.

Cook goes through several issues that have been noted about Manning’s detention including bedding, exercise availability and access to newspapers and television news, and casually dismisses them all individually with trite questions such as “does it sound like torture to you?”, “is it that big a deal, all things considered?”, and “is it the stuff of a U.N. investigation?”.

First off, Cook fails to consider the cumulative effect of those issues. Much more importantly, however, Cook completely ignores and fails to discuss the most important issue in the complaints about Manning’s detention conditions, the extreme isolation and sleep deprivation. This, however, is not a cute subject and should not be treated as fluff by Gawker. Dr. Jeff Kaye relates exactly how serious the isolation (which in Manning’s case must also be coupled with intentional sleep deprivation) can be on a subject such as Manning:

Solitary confinement is an assault on the body and psyche of an individual. It deprives him of species-specific forms of physical, sensory and social interaction with the environment and other human beings. Manning reported last weekend he had not seen sunlight in four weeks, nor does he interact with other people but a few hours on the weekend. The human nervous system needs a certain amount of sensory and social stimulation to retain normal brain functioning. The effects of this deprivation on individuals varies, and some people are affected more severely or quickly, while others hold out longer against the boredom and daily grind of dullness that never seems to end.

Over time, isolation produces a particular well-known syndrome which is akin to that of an organic brain disorder, or delirium. The list of possible effects upon a person is quite long, and can include an inability to tolerate ordinary stimuli, sleep and appetite disturbances, primitive forms of thinking and aggressive ruminations, perceptual distortions and hallucinations, agitation, panic attacks, claustrophobia, feelings of loss of control, rage, paranoia, memory loss, lack of concentration, generalized body pain, EEG abnormalities, depression, suicidal ideation and random, self-destructive behavior.

Most telling of the disingenuous and uninformed nature of the Cook/Gawker article is its critical reliance on irrelevant and misleading data from an impertinent study. Cook cites a University of Pennsylvania study on prison isolation:

But the bottom line is that there is nothing even remotely unusual about the conditions under which Manning is currently confined. There are literally thousands of people—by one estimate as many as 20,000 [pdf]—in this country in solitary confinement right now. It is a distressingly routine technique. To the extent that it is inhumane, illegal, unconstitutional, and violative of international law—which it may be—there are thousands of people in line ahead of Manning awaiting their U.N. investigations.

Gawker describes 20,000 people in solitary confinement in the US and equates them with Manning without noting the source they are citing is describing only prisoners that have been convicted, and most all of whom have factual circumstances requiring segregation. Manning is being held pre-trial, is presumed innocent and free and should not, according to consistent law, be imposed on or restricted any more than necessary to secure his appearance in court and safety.

In fact, there is statutory authority directly on point to this effect, Article 13, UCMJ, prohibits: (1) intentional imposition of punishment on an accused before his or her guilt is established at trial; and (2) arrest or pretrial confinement conditions that are more rigorous than necessary to ensure the accused’s presence at trial (See: United States v. Crawford, 62 M.J. 411).

I immediately notified Gawker of this critical error in their article by a response to their Twitter announcement of its publication. Gawker has not seen fit to correct their misleading and scurrilous article. Whether Gawker has the common decency to admit it or not, there is a huge difference, both legally and morally, between presumed innocent citizens being held pre-trial and convicted criminals with needs for specialized segregation or punishment. Bradley Manning is the former, not the latter.

Christmas Special: Half Off Dick Cheney’s Freedom!

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Just a quick post while I’m packing so you all have fresh thread to unwind.

And also to note that Halliburton did manage to convince Nigeria to give them a half-off special for Dick Cheney’s freedom, though they had to bring Poppy Bush and James Baker in to close the deal.

Nigeria’s anti-corruption police have dropped charges against Dick Cheney, the former US vice-president, over a multi-million dollar bribery case after the energy firm Halliburton agreed to pay up to $250m (£161m) in fines.

The move followed the intervention of ex-president George Bush Sr and former secretary of state James Baker, according to Nigerian press reports.

It’s a good thing Cheney’s freedom is coming at such a discount. Because if, as reported, DOJ is contemplating charging those who helped or induced others to leak classified information–as Cheney did when he ordered Scooter Libby to leak Valerie Plame’s identity to Judy Miller–then he may have need of another half-off $250 million Get Out of Jail Free Card.

I’ll be packing the rest of the day today and moving tomorrow, so you may not hear from me until tomorrow night or Saturday. Wish me luck!

Throwing our PATRIOT at Assange

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Last week, U.S. Attorney General Eric Holder admitted what bmaz laid out yesterday — the problems with prosecuting WikiLeaks’ Julian Assange under the Espionage Act. But at the same time, he said, the Espionage Act may play a role in a possible Assange indictment.

“I don’t want to get into specifics here, but people would have a misimpression if the only statute you think that we are looking at is the Espionage Act,” Mr. Holder said Monday at a news conference. “That is certainly something that might play a role, but there are other statutes, other tools that we have at our disposal.”

So even with all the problems in applying the Espionage Act to Assange, Holder is still invoking the provision in his discussion of the “tools that we have at our disposal” to combat Assange.

Legally, the stance could have import beyond the question of whether or not they can indict him.

Consider, for example, this language on the National Security Letter provision of the PATRIOT Act, which allows the FBI, with no court oversight, to require financial service and telecommunications providers to  turn over data pertaining to any investigation the Department of Justice asserts is an espionage investigation:

A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may—

request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; [my emphasis]

Or this language from Section 215 of the PATRIOT Act, which allows the FBI, with FISA Court approval, to require private businesses to secretly turn over a broad range of business records or tangible items pertaining to any investigation DOJ asserts is an espionage investigation.

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. [my emphasis]

Between these two provisions, the government can collect a wide range of information on US persons — things like donations via credit card and server data — simply by claiming the investigation involves spying. They don’t have to even claim there’s a connection between those US persons making those donations or accessing the particular server and the alleged spy. They don’t have to prove that the case involves spying or that they have the ability to indict under the Espionage Act. They only have to claim they are pursuing an authorized — ultimately, the AG does the authorizing — investigation to protect against spying.

Which is what the Attorney General is suggesting here, that they are investigating Assange and the Espionage Act might play a role.

Mind you, they’d also have to claim (to themselves, in the case of the NSL, to FISC in the case of Section 215) that they were collecting data on a US person for reasons above and beyond that person’s First Amendment right to read stuff on the InterToobz or donate to people the government is loosely alleging may be sort of like a spy. Mind you, if the government did collect — say — the names of Americans donating to WikiLeaks via MasterCard or Visa or Paypal, or the names of Americans accessing the WikiLeaks site for the day Amazon hosted it, those people might have a great lawsuit claiming they had been targeted for First Amendment protected activities.

If they ever found out they were targeted.

But of course, we don’t have any way of knowing whether the government decided to use the PATRIOT Act provisions allowing them to collect data on Americans so long as they assert a connection to an Espionage investigation. Because that all remains secret.

Now, I have no idea whether the government is doing this (though I could imagine that if financial service providers like MasterCard and Visa got a really onerous request from DOJ, they might choose to end their relationship with Assange rather than provide ongoing compliance with the DOJ request).

But it seems these PATRIOT provisions are just the tip of the iceberg of potential investigative techniques they could have access to (FISA wiretaps are another) based on the stance that DOJ is investigating Assange for spying, whether or not they ever intend to charge him with spying.

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 →

Hatfill and Wen Ho Lee and Plame and al-Awlaki and Assange

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Last night I appeared on a panel on the Scooter Libby case. It was Judge Reggie Walton, Peter Zeidenberg, Alexandra Walsh from the Libby team, Lee Levine (who represented Andrea Mitchell and Tim Russert), Walter Pincus and I.

The panel itself was good. My high point came after Walsh had explained why the Defense had argued that bloggers might embarrass the nice people who had written leniency letters for Libby. I said, “well I was flattered we were considered such a threat. But there were at least three people who submitted letters who were implicated in the case. And I was shocked that I was one of only two or three people who demonstrated the many conflicts of those who wrote letters.”

But I also had several weird moments when we were talking about reporter’s privilege, when I was acutely aware that I was sitting between Judge Walton–who had forced journalists to reveal who had blamed Steven Hatfill for the anthrax case [see Jim White’s post for an update on the anthrax case]–and Walter Pincus–who said he had had eight or nine sources for his stories implicating Wen Ho Lee in security leaks. Walton made the very good point that if he hadn’t held AP reporter Toni Locy in contempt, then Hatfill might not have gotten the huge settlement he did for having had DOJ ruin his life. Walton’s comment suggested he had had to choose between reporter’s privilege or government impunity for attacking one of its citizens.

The collection of people sitting there had all touched on three major cases recently where the government had ruined civil servant’s lives and then hid behind reporter’s privilege to try to get away with it.

I had that in mind when I read this Jay Rosen piece, in which he suggests the behavior best incarnated by the Judy Miller-Michael Gordon aluminum tubes story created the need for Wikileaks.

The aluminum tube story, Rosen suggests, marks the moment when top journalists came to see their role as simply repeating what the government said.

This was the nadir. This was when the watchdog press fell completely apart: On that Sunday when Bush Administration officials peddling bad information anonymously put the imprimatur of the New York Times on a story that allowed other Bush Administration officials to dissemble about the tubes and manipulate fears of a nuclear nightmare on television, even as they knew they were going to war anyway.

The government had closed circle on the press, laundering its own manipulated intelligence through the by-lines of two experienced reporters, smuggling the deed past layers of editors, and then marching it like a trained dog onto the Sunday talk shows to perform in a lurid doomsday act.

Rosen argues that the NYT was not only on the wrong side of the facts with that story, but also on the wrong side of secrecy.

But it has never been recognized that secrecy was itself a bad actor in the events that led to the collapse, that it did a lot of damage, and that parts of it might have to go. Our press has never come to terms with the ways in which it got itself on the wrong side of secrecy as the national security state swelled in size after September 11th. (I develop this point in a fuller way in my 14-min video, here.)

The failures of skepticism back then, Rosen argues, creates the need or opportunity for Julian Assange today.

Radical doubt, which is basic to understanding what drives Julian Assange, was impermissible then. One of the consequences of that is the appeal of radical transparency today

Now, I think Rosen actually misses a key step here: from where the press sees itself as the neutral conduit of what the government is thinking, to where the press thinks its leaks from the government can stand-in for due process in the Anwar al-Awlaki case, and from there to Assange. Read more →

Will WikiLeaks Be the Internet’s Titanic?

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Back in the early days of radio, there was a great amateur radio culture that in key ways resembled early internet culture: it was predominantly male, highly competent, espousing a belief that this new technology could democratize the world.

And in spite of the amateur radio community’s offer to set up an alternative communication system in the country–one that would provide a horizontal communication network in case the more centralized one failed in time of crisis–the powers that be were none too comfortable with the radio guys. Partly, it was just about decentralization of power. Partly, it was that the amateur operators were technically more skilled than the radio operators in the employ of the Navy.

And then the Titanic happened.

And in spite of the fact that the disaster had a lot more to do with hubris and incompetence and negligence, the amateur operators provided a handy scapegoat, based on the weak claim that amateur operators had hogged bandwidth that rescuers might have used. More importantly, the amateurs offered not only a convenient scapegoat, but the Titanic provided a wonderful opportunity to go after the radio guys, the fearmongering excuse to curtail the power of the operators, which the government did with bandwidth restrictions and a national regime covering broadcast, among other measures. Which launched the process that resulted in the top-down broadcast model offered by Westinghouse and CBS rather than the democratized horizontal network of people speaking in their own voices that might have been.

I’ve been waiting for our Titanic moment–the moment when the government would use some convenient excuse to shut down the imperfect but still better than broadcast model of the Internet. The moment when–as the government did with the Titanic and its demand for Navy hegemony of the airwaves–the government could sow fears about national security to shut down citizen media.

And as I was reading this post from Ian Welsh…

Let’s just state the obvious here: we’re seeing the end of the open internet with what is being done to WikiLeaks.  It’s one thing for Amazon to toss them, it’s another thing entirely to refuse to propagate their domain information.  This has been coming for quite some time, and WikiLeaks is not the first domain to be shut down in the US, it is merely the highest profile.  Combined with the attempt to make NetFlix pay a surcharge or lose access to customers, this spells the end of the free internet.

The absurdity, the sheer Orwellian stupidity of this is epitomized by Hilary Clinton telling students at elite colleges not to read the leaks, or they won’t get jobs at State.  As if anyone who isn’t curious to read what is in the leaks, who doesn’t want to know how diplomacy actually works, is anyone State should hire.  In a sane world, the reaction would be the opposite: no one who hadn’t read them would be hired.

This is reminiscent of the way the old Soviet Union worked, with everyone being forced to pretend they don’t know what they absolutely do know, and blind conformity prized over ability.

And as I contemplate Federal Communications Commission Chairman Julius Genachowski’s fake net neutrality proposal, and as I read news of MasterCard and Visa both freezing Julian Assange’s funds, I can’t help but think this is the Titanic moment I’ve been expecting for years.

Sure, the crackdown–which puts our counterterrorism efforts to shame–is a response to the scope of this latest leak. Sure, it’s an attempt to prevent the next leak, on Bank of America.

But just as much, it’s about creating the excuse they need–the government and the legacy media protecting their turf–to undercut the power of the Internet.

The Leaked Cables I Want to See

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As you’ve no doubt heard, on Wednesday, both Amazon.com and Ecuador decided they didn’t want to be associated with Wikileaks.

In Amazon.com’s case, it’s not entirely clear they would have known Wikileaks had switched to their servers on Sunday. But on Tuesday, some of Joe Lieberman’s flunkies contacted the company to let them know that Holy Joe disapproved of the book store-and-server helping Wikileaks facilitate its leaks.

The company announced it was cutting WikiLeaks off yesterday only 24 hours after being contacted by the staff of Joe Lieberman, chairman of the Senate’s committee on homeland security.

[snip]

Lieberman said: “[Amazon’s] decision to cut off WikiLeaks now is the right decision and should set the standard for other companies WikiLeaks is using to distribute its illegally seized material. I call on any other company or organisation that is hosting WikiLeaks to immediately terminate its relationship with them.”

The department of homeland security confirmed Amazon’s move, referring journalists to Lieberman’s statement.

Now, given DHS’ confirmation referencing Lieberman, it’s not clear whether the government officially contacted Amazon.com, or only Holy Joe. But it is worth noting that Amazon.com presumably gets requests for “tangible things” from the government under the PATRIOT Act’s Section 215. And while the Obama Administration has not branded Julian Assange as a terrorist the way Peter “Material Support for Irish Terrorists” King has, they could presumably claim a counter-intelligence interest in obtaining records about Wikileaks under Section 215. So the government could make legitimate requests for information on Wikileaks’ hosting use, if not request it be closed down.

Then there’s Ecuador, which I find even more interesting. On Monday, Deputy Foreign Minister Kintto Lucas had said Ecuador was prepared to offer Assange asylum. But then yesterday, President Rafael Correa stated that Lucas had no authority to make the offer. As Al-Jazeera’s article on the Correa comment makes clear, Ecuador has shown as much resistance as just about anyone to US demands, particularly since the US backed a Colombian raid on FARC in Ecuadoran territory.

Nevertheless, presumably the US said something to Ecuador to make it rethink Lucas’ offer of asylum to Assange. What carrots or sticks, I wonder, would be revealed if the diplomatic cables between the US and Ecuador regarding this matter were leaked?

The point being, of course, that if Correa’s retraction of the asylum order was a response to US pressure, it means that even as the US’ heavy-handed ways are exposed in the Wikileaks dump, they continue to use those same ways to combat Assange.

Picking and Choosing Which Journalistic Outlets to Treat as Journalistic Outlets

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Tuesday, Philip Shenon reported that Wikileaks wanted the Defense Department’s help reviewing the next batch of documents it will release for names that should be redacted.

Julian Assange wants the Pentagon’s help.

His secretive WikiLeaks website tells The Daily Beast it is making an urgent request to the Defense Department for help reviewing 15,000 still-secret American military reports to remove the names of Afghan civilians and others who might be endangered when the website makes the reports public.

[snip]In a phone interview Tuesday with The Daily Beast, Schmitt said the site wanted to open a line of communication with the Defense Department in order to review an additional 15,000 classified reports in an effort to “make redactions so they can be safely published.” Schmitt said that these reports also relate to American military operations in Afghanistan.

It was a good play from Wikileaks, as it would place Wikileaks in the same position as newspapers like NYT and WaPo which occasionally spike information the government says is particularly sensitive. However, the government chose to pretend it doesn’t have this kind of conversation all the time, and also to pretend that it doesn’t regularly do FOIA reviews for this kind of information.

Instead, DOD spokesperson Geoff Morrell, doing his best Agent Smith imitation, “demand[ed]” that Wikilieaks return all the documents it has received, repeating “do the right thing” over and over.

Of course, no other journalistic outlet would do what Morrell called “doing the right thing.” (To the credit of some of the journalists covering Morrell’s Agent Smith show, they seem somewhat dubious of the claims logic.)

Meanwhile, DOD has also revoked Michael Hastings’ permission embed in Afghanistan, claiming the unit in question does not trust Hastings (though the move appears to be retaliation for Hastings’ refusal to cooperate in a DOD IG probe of Hastings’ article).

The government is not supposed to license favored press in this country. But what DOD is doing is choosing only to play ball with those outlets with which it is chummy enough to largely influence the coverage of.

Which I suppose makes it different than a license. It’s like a membership in a secret tree house that you’ve got to know the secret password to belong to.