First They Came for James Risen …

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I don’t mean to suggest the journalism world did not object to the three subpoenas James Risen got in the Jeffrey Sterling case. They did.

But today’s news that Fox’s James Rosen was accused of being an “Aider or Abettor” to Stephen Jin-Woo Kim’s alleged crime of leaking information on Korea is just part of a progression. (See also WaPo’s story which broke this.)

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

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

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

[snip]

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

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

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

After all, in January 2011 (which was actually after this affidavit, but appeared 10 months before this affidavit was unsealed), DOJ argued that when Jeffrey Sterling leaked information to James Risen about a dangerous plot to deal nuke blueprints to Iran, his actions were worse than what DOJ called “typical espionage.”

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

Then, in March 2011, DOD charged Bradley Manning with aiding the enemy because he leaked a bunch of stuff to us.

In other words, during a period from May 2010 through January 2011, Eric Holder’s DOJ was developing this theory under which journalists were criminals, though it’s just now that we’re all noticing this May 2010 affidavit that lays the groundwork for that theory.

Maybe that development was predictable, given that during precisely that time period, the lawyer who fucked up the Ted Stevens prosecution, William Welch, was in charge of prosecuting leaks (though it’s not clear he had a role in Kim’s prosecution before he left in 2011).

But it’s worth noting the strategy — and the purpose it serves — because it is almost certainly still in effect. FBI Special Agent Reginald Reyes accused Rosen of being a criminal so he could get around the Privacy Protection Act protections for media work product (See pages 4 and following), which specifically exempts “fruits of a crime” or “property … used [] as a means of committing a criminal offense.” Then he further used it to argue against giving notice to Fox or Rosen.

Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant. (29)

While the AP’s phone records weren’t taken via a warrant, it would be unsurprising if the government is still using this formula — journalists = criminals and therefore cannot have notice — to collect evidence. Indeed, that may be one reason why we haven’t seen the subpoena to the AP.

Of course, this is not just about journalists. In this schema, providing information about what our government is doing in our name to citizens constitutes a crime.

This criminalization of journalism is a fundamentally anti-democratic stance.

 

Is the Government Going to Claim Bradley Manning “Harmed” the US by Exposing Drone Details?

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Screen shot 2013-04-17 at 9.46.44 PMLast week’s Bradley Manning hearing significantly focused on how much the government could hide about its witnesses. A big part of the discussion pertained to how a Seal Team 6 member would testify to finding WikiLeaks material at Osama bin Laden’s compound. But the government also advanced its case to have a list of other government employees testify, at least partly, in secret, mostly in the “harm” phase of sentencing.

Here’s Alexa O’Brien’s transcription of that list (click through for the list). There are a number of interesting names on this list. But the one that popped out at me is Ambassador Stephen Seche.

You see, while Seche was Chargé d’Affaires in Syria mid-decade and more recently was in charge of Near Eastern affairs at State, he will almost certainly testify about how WikiLeaks disclosures of cables he wrote while Ambassador to Yemen “harmed” relations with that country.

Indeed, as the image above shows, Seche wrote one of the most newsworthy cables ever released by WikiLeaks, the January 4, 2010 cable recounting a January 2 meeting between then CentCom head David Petraeus and Yemeni President Ali Abdullah Saleh.

The cable is best known for this statement, laying out the agreement by which Saleh would lie about missile and drone strikes and pretend they were Yemen’s.

“We’ll continue saying the bombs are ours, not yours,” Saleh said, prompting Deputy Prime Minister Alimi to joke that he had just “lied” by telling Parliament that the bombs in Arhab, Abyan, and Shebwa were American-made but deployed by the ROYG.

But there are several other inflammatory details in this cable. There’s the nugget of our agreement to shift from using cruise missiles to drones.

Saleh did not have any objection, however, to General Petraeus’ proposal to move away from the use of cruise missiles and instead have U.S. fixed-wing bombers circle outside Yemeni territory, “out of sight,” and engage AQAP targets when actionable intelligence became available.

Potentially more damning still, there’s the passage that suggests Anwar al-Awlaki was an intended target of the December 24, 2009 attack (a day before the US believed he was an operational and at least a month before it had evidence he was). In addition, there’s Petraeus’ absolutely incorrect contention that only three civilians had died at al-Majala instead of the Bedouin clan we know died.

(S/NF) Saleh praised the December 17 and 24 strikes against AQAP but said that “mistakes were made” in the killing of civilians in Abyan. The General responded that the only civilians killed were the wife and two children of an AQAP operative at the site, prompting Saleh to plunge into a lengthy and confusing aside with Deputy Prime Minister Alimi and Minister of Defense Ali regarding the number of terrorists versus civilians killed in the strike. (Comment: Saleh’s conversation on the civilian casualties suggests he has not been well briefed by his advisors on the strike in Abyan, a site that the ROYG has been unable to access to determine with any certainty the level of collateral damage. End Comment.) AQAP leader Nassr al-Wahishi and extremist cleric Anwar al-Awlaki may still be alive, Saleh said, but the December strikes had already caused al-Qaeda operatives to turn themselves in to authorities and residents in affected areas to deny refuge to al-Qaeda. [my emphasis]

At the very least, this passage demonstrates how shoddy our intelligence was both before and after we killed a bunch of civilians. But it may also support the case that the first time we tried to kill Awlaki, we didn’t believe he met the standards laid out in the memo that would ultimately authorize his killing: being a senior operational leader of AQAP involved in planning attacks against the US.

In other words, this cable, by itself, may include evidence of possible war and domestic crimes.

And yet the government wants to send Seche to a classified hearing to talk about the “harm” Bradley Manning caused.

While I think it possible that release of this particular cable made it harder for Djibouti to partner with us (recall we moved the drones targeting Awlaki to Saudi Arabia in 2011), the government at least maintains that Yemen continues to allow us to shoot drones in the country.

Yet it seems highly likely the government wants to claim disclosures of crimes like this amounted to “harm” of the US.

But here’s the punchline.

Read more →

Stephen Heymann Involved in Swartz Investigation before Arrest

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Ryan Reilly reports that Aaron Swartz’s last attorney, Elliot Peters, filed an Office of Professional Responsibility complaint against Swartz prosecutor Stephen Heymann in January. The complaint covers three things:

  • Delaying the disclosure of an email showing the Secret Service was involved in the investigation from the start and therefore should have gotten a warrant for Swartz’s computer before a month had elapsed
  • Pressuring Swartz to plead guilty with threats of inflated prison time
  • Delaying the disclosure of when Heymann first got involved in the prosecution and hiding other pertinent emails and reports

Reilly discusses the substance of the first item — which pertains to issues I covered in this post on Secret Service’s belatedly disclosed early involvement in the investigation and this post on the six week delay before actually searching Swartz’s computer.

Peters argued that the government failed by waiting more than a month to obtain the warrant. Heymann countered that he couldn’t get a warrant because he didn’t have access to the equipment. But an email in Heymann’s possession, which was written to Heymann himself, showed that assertion to be untrue.

In an email that was not provided to the defense team until the last minute, Michael Picket, a Secret Service agent, wrote to Heymann on Jan. 7, “I am prepared to take custody of the laptop anytime after it has been process for prints or whenever you feel is appropriate.

Reilly’s report (and the complaint) provide more substantiation for Peters’ claim that Heymann waited until after a status conference on whether or not the judge would hold a hearing on the suppression issues to hand over the email. The key complaint against Heymann, then, is that he didn’t turn over a key document until he knew the judge would actually investigate the issues around that document.

But I’m just more interested in the part of the complaint that is current hidden, the context of which is provided in the complaint.

Meanwhile, on December 21, 2012, AUSA Heymann produced yet another, much larger set of documents relevant to Mr. Swartz’s motion to suppress. This voluminous, disorganized production consisted of hundreds of previously-undisclosed emails, as well as hundreds of other documents, including undisclosed investigative reports, photographs, spreadsheets, and screen captures. Many of the newly-disclosed emails and reports further illustrated that the Secret Service was in control of investigating Mr. Swartz, and that AUSA Heymann was himself involved in the investigation even before Mr. Swartz was arrested on January 6, 2011. See, e.g.,

[paragraph-long redaction]

Upon review of the December 21 discovery, it became apparent to use that AUSA Heymann was well aware of the Secret Service’s investigation of Mr. Swartz’s case from its inception. This made AUSA Heymann’s misrepresentation about the Secret Service’s involvement in the seizure of Mr. Swartz’s electronic devices all the more troubling, because the misrepresentation could not have been made accidentally. Rather, because the December 21 documents had never before been disclosed to the defense, Mr. Swartz and his attorneys did not have the opportunity to consider and argue their relevance in Mr. Swartz’s motions to suppress, which had been filed months prior to disclosure.

While DOJ is clearly hiding the most interesting part of this, even this passage is telling. It reveals that:

  • Heymann was involved before January 6
  • DOJ withheld emails, documents, investigative reports, photographs, spreadsheets, and screen captures
  • Heymann was aware of Secret Service’s investigation “from its inception”

The least damning potential issue here is that Heymann was brought into the investigation on January 4, along with the Cambridge police and Secret Service, and that the belatedly disclosed reports showed a great deal of Secret Service investigation that had not been turned over. Given the language used in the complaint and the fact that the Secret Service technically handcuffed Swartz, it also seems to suggest that Secret Service was not just brought into the investigation (as suggested by what we’ve seen so far), but what the lead from the very start.

But there are other far more interesting possibilities which, if true, would explain a lot of questions I’ve had about the investigation. Here are some possibilities — and note, these are just wildarsed guesses:

  • Was Secret Service involved before MIT called the Cambridge police on January 4? Did they (or a contractor like Carnegie Mellon’s CERT team) provide the data flow reports that first identified the location of Swartz’s computer? Are those data flow reports included in the late discovery? Did Secret Service know the identity of Swartz before they conducted the flow, or before they caught him in the network closet? 
  • Did MIT call Secret Service before they called CPD? Did they call Secret Service before January 4, 2011? Did Secret Service call MIT first?
  • Did the photos in the belated discovery include photos of Swartz used to stake out Swartz’s apartment the day he was arrested? Had they already been staking out his apartment?
  • Peters has said DOJ subpoenaed Internet Archive for multiple versions of the Guerilla Open Access Manifesto. That seems to contradict what DOJ told the defense in earlier discovery motions. Were those subpoenaed reports part of the belated discovery?

Aside from these WAGs about what the hidden material might include, there are larger questions about whether they piggy backed an investigation into Swartz onto larger investigations of Cambridge hackers and/or other open access activists. Remember: past statements by the government left open the distinct possibility that they had emails “not relevant to this case.” I wonder whether those were among the emails turned over after DOJ learned the judge would hold a hearing into improprieties of the searches into Swartz.

Those are questions DOJ doesn’t want to answer.

WikiLeaks Will Be Nothing Compared to FinCENLeaks

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According to Reuters, the Treasury Department is planning on expanding access to FinCEN reports — which include Suspicious Activity Reports from over 25,000 financial institutions — to the intelligence community, including CIA.

The Treasury document outlines a proposal to link the FinCEN database with a computer network used by U.S. defense and law enforcement agencies to share classified information called the Joint Worldwide Intelligence Communications System.

[snip]

More than 25,000 financial firms – including banks, securities dealers, casinos, and money and wire transfer agencies – routinely file “suspicious activity reports” to FinCEN. The requirements for filing are so strict that banks often over-report, so they cannot be accused of failing to disclose activity that later proves questionable. This over-reporting raises the possibility that the financial details of ordinary citizens could wind up in the hands of spy agencies.

There’s so much to say about this batshit crazy plan…

First, when I made fun of John Brennan’s confirmation vow, people assured me CIA doesn’t operate in the US. Maybe not. But now they have free access to all this data on Americans.

And remember that DOJ, as far back as 2002, argued it was legitimate to use FISA to collect information on crimes the government could use to coerce people into becoming informants. Imagine how much easier that will be with access to people’s bank irregularities.

Finally, think of the security nightmare here. While I doubt anyone is going to leak a whole database of FinCEN data to WikiLeaks (though how much fun would that be?!?!), I can imagine a lot of people might avail themselves of this access to profit off the financial information. Maybe that’s how CIA will fund their ops, instead of (or inaddition to?) drug running: profiting off sensitive financial information.

There’s a whole slew of reasons why this is a bad idea. Which is precisely why it is bound to be pushed through regardless.

A Partial Defense of Bill Keller’s Column on Manning

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Late Sunday, former New York Times Executive Editor Bill Keller put up an op-ed column at the NYT website on the state of Bradley Manning’s case, his perception of Manning’s motivations and what may have been different had Manning actually gotten his treasure trove of classified information to the Times instead of WikiLeaks. The column is well worth a read, irrespective of your ideological starting point on Mr. Manning.

Bradley Manning has ardent supporters and, predictably, they came out firing at Keller. Greg Mitchell immediately penned a blog post castigating Keller for not sufficiently understanding and/or analyzing the Manning/Lamo chat logs. Kevin Gosztola at Firedoglake also had sharp words for Keller, although, to be fair, Kevin did acknowledge this much:

It is an interesting exercise for Keller. Most of what he said is rational and, knowing Keller’s history, he could have been more venerating in his description of how the Times would have handled Manning.

Frankly, many of the points Mitchell and Gosztola made, which were pretty much representative of a lot of the chatter about Keller’s op-ed on Twitter, were fair criticism even if strident. And part of it seems to simply boil down to a difference in perspective and view with Keller, as evidenced in Keller’s response to inquiry by Nathan Fuller, where he indicates he simply views some things differently.

This is all healthy give and take, difference in view and sober discussion by the referenced Read more →

Who Turned over the Google Group Conversations Involving Aaron Swartz?

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The legal documents on the investigation into Aaron Swartz show three signs of witnesses cooperating with the prosecution.

Most of the public attention has focused on this detail, which in September 2011 publicly indicated Quinn Norton had been provided immunity to testify before the grand jury.

Promises, rewards, or inducements have been given to witness Erin Quinn Norton. Copies of the letter agreement with her and order of immunity with respect to her grand jury testimony are enclosed on Disk 3.

Norton’s account of her testimony is here.

That same motion to compel discovery reveals that an MIT student IDed Swartz in a photo lineup.

Defendant Aaron Swartz was a subject of an investigative identification procedure used with a witness the government anticipates calling in its case-in-chief involving a photospread documented by MIT Police Detective Boulter. Relevant portions of the police report of Detective Boulter and a copy of the photospread used in the identification procedure are enclosed on Disk 3. In both instances, the name of the identifying MIT student has been redacted to protect the student’s continuing right to privacy at this initial stage of the case.

There are hints elsewhere that an MIT student gave Swartz some tips on how to get around MIT (someone must have told him about the accessible network closet, after all); I’ve wondered whether this student, or someone else, is who IDed Swartz.

Finally, a discovery motion dating to June 2012 reveals there are personal communications involving him, including both emails and Googlegroup conversations.

Swartz has received in discovery internet memoranda and chats purporting to be from him. For example, the discovery contains a number of chats on googlegroups.com which contain entries which facially indicate that Swartz was a participant in the communications. The discovery also contains a number of emails which on their faces indicate that they were either to or from Swartz. Swartz requires the additional information requested – the source of these statements and the procedure used by the government to obtain them – to enable him to move to suppress such statements if grounds exist to do so, which he cannot determine without the requested information.

And in response to Swartz’ motion for the source of the communications involving him, the government said everything was either turned over willingly or accessed from a public site. It also said it would not turn over the identity of the people who had turned it over because that would identify its witnesses before it had to. Read more →

Quinn Norton’s Testimony

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The docket of Aaron Swartz’ prosecution made it clear that Quinn Norton, Swartz’ ex-girlfriend, testified with immunity. It also made it clear that someone — or some people — handed over communications, including LISTSERVs, to DOJ. [See update]

In the Atlantic, she provides her side of the story. While it includes a range of useful details, the most significant revelation is that — she believes — she was the first to alert Prosecutor Stephen Heymann to the Guerilla Open Manifesto.

Steve asked if there was anything I knew of to suggest why Aaron would do this, or what he thought about academic journals. I cast around trying to think of something, something that made sense to them, when Aaron had just gathered these datasets for years, the way some people collect coins or cards or stamps.

I mentioned a blog post. It was a two-year-old public post on Raw Thought, Aaron’s blog. It had been fairly widely picked up by other blogs. I couldn’t imagine that these people who had just claimed to have read everything I’d ever written had never looked at their target’s blog, which appeared in his FBI file, or searched for what he thought about “open access” They hadn’t.

So this is where I was profoundly foolish. I told them about the Guerrilla Open Access Manifesto. And in doing so, Aaron would explain to me later (and reporters would confirm), I made everything worse. This is what I must live with.

I opened up a new front for their cruelty. Four months into the investigation, they had finally found their reason to do it. The manifesto, the prosecutors claimed, showed Aaron’s intent to distribute the JSTOR documents widely. And I had told them about it. It was beyond my understanding that these people could pick through his life, threaten his friends, tear through our digital history together, raid his house, surveil him, and never actually read his blog. But that seemed to be the fact of it.

I’ll come back to this Manifesto; I think people keep forgetting that almost all of what it espouses is legal. That while the government treated it as a Rosetta Stone, it didn’t do all they claimed it did.

But before I do that, consider the terms of Norton’s testimony. She was first interviewed without counsel, then served a subpoena, in San Francisco.

They said they were from the Secret Service and that they wanted to ask me a few questions. Shocked and unsure of myself, I let them in to talk to me. One should never, ever do this.

They asked about Aaron, I told them I didn’t know anything. They pointed out that he’d called me, and asked what he told me. I told them I hadn’t asked anything about his arrest, and they were incredulous.

Eventually I ran out of things to tell them, and they produced the real reason for their visit: a subpoena.

At this point, Norton would have been locked into the testimony she gave the Secret Service — including her claim that when Swartz called her to help arrange bail after he was arrested, he didn’t tell her why he had been arrested — or risk false statement charges. (I’m not saying she didn’t tell the truth, just that interviews without counsel can prove sticky going forward.)

In addition, in the guise of seeking her communications with Swartz, the Feds were getting close to her computer, with all her reporting on it.

As strange as it seems now, when I was first subpoenaed, Aaron was more worried about me than him, and both of us were worried about Ada, my seven-year-old daughter. She was the light of both of our lives, and we wanted to make sure none of this would touch her. The problem was my computer. It contained interviews and communications with confidential sources for stories going back five years. The subpoena didn’t actually call for my computer, but materials on my computer. Jose and Adam implied that if the prosecutor didn’t think I was being honest, he might move against me, seize things.

And if the prosecutor took my computer, I would have to go to jail rather than turn over my password.

Norton had been reporting on a range of hacker culture, including Anonymous and WikiLeaks. So while the subpoena only mentioned CFAA and wire fraud violations (see page 4), I can see why she — and the lawyers she first got, who didn’t challenge the subpoena as a violation of DOJ’s rules on subpoenaing journalists — might have been worried. I can see why Swartz would have been worried: by going after Norton, DOJ was going after someone who might have real evidence on the other more serious crimes they were trying to investigate. And by going after her, they may well have been trying to tie Swartz, by association, to that blacker hat hacker culture.

They eventually talked her into taking an immunity deal.

They told me Steve wanted to meet me, and they wanted me to meet him. They wanted to set up something called a proffer — a kind of chat with the prosecution. Steve offered me a “Queen for a day” letter, granting me immunity so that the government couldn’t use anything I said during the session against me in a criminal prosecution.

[snip]

I was outraged and disturbed. I didn’t want a deal, I didn’t want immunity, I just wanted to sit down and talk about the whole terrible business, to tell them why this case wasn’t worth their time, and Aaron didn’t deserve their attention. I didn’t need a deal, and in fact, given that I had nothing to offer the government’s case, I didn’t think I even qualified for it.

I asked my lawyers to refuse, and we fought about it, repeatedly. They brought up things from my past that could be used against me; not criminal behavior per se, even they admitted, but they wanted me to have immunity. I had a terrible headache, and eventually gave in.

And in fact, that appears to have been how Heymann looked at Norton. In the proffer session, they described Norton as “being connected to hackers.”

They said I must have known something because I was connected with hackers. They knew this, they told me, because they’d read everything I’d ever written online.

This, then, is the background to why she testified. She was a broke single mother, relying on pro bono lawyers who had probably been warned about Norton’s purported ties with hackers, under a tremendous amount of stress.

I’ve long noted that Swartz’ story, awful as it is, is in some ways far better than what most people experience with prosecution, because he had the financial wherewithal, at least at first, to fight back. Norton did not.

One thing that’s not clear is what would have happened if these first lawyers had complained about what amounted to a very broad subpoena to a journalist.

I found out it was DOJ policy to subpoena journalists last, yet I had been subpoenaed first. Jose didn’t seem to know that the journalist rules might apply to my hard drive, despite being a former federal prosecutor.

Norton started to pursue these questions only after she had gotten new counsel. It’s not clear it would have made any difference. Aside from the fact that they were demanding stuff partly outside of her journalistic work (the LISTSERVs presumably would overlap her personal relationship with Swartz and her work), by the end of the year DOJ would formalize a policy that offered freelance journalists and bloggers almost zero protection as journalists. Norton didn’t have — and still doesn’t — the institutional affiliation and the  million dollars to fight a subpoena that association with the NYT would have brought.

I am, however, curious whether her first lawyers discussed this, because it’s pretty clear DOJ doesn’t believe any journalist with ties to hacker culture, as Norton has, counts as a journalist. It would have been nice to test that belief legally.

Also note: the very first thing the subpoena asked for was any computers Swartz may have given Norton.

All computers, hard drives, USB drives, DVDs, CDs and other electronic and optical Storage devices currently or previously owned 0r possessed by Aaron Swartz at any time from  September l, 2010 to the present. These shall include, without limitation, all computers and hard drives transferred to you by Aaron Swartz, loaned by you to Aaron Swartz, loaned to you by Aaron Swartz, or stored by or on behalf of Aaron Swartz at any premises over which you have custody or control.

Remember, by that point of the investigation (and to this day, as far as I’ve been able to tell from the public record), DOJ had not found the Macintosh Swartz had used remotely in some of the earlier downloads. I’ve long assumed that Mac was one of Swartz’ personal computers, with a mix of JSTOR files and his personal business (including, just as an example, records from Demand Progress and the SOPA/PIPA fight), though for all we know it could have been someone else’s computer. It appears they believed Norton might have that computer.

So rather than call his lawyer after getting arrested, Swartz called his girlfriend, who just happened to have extensive professional ties to the hackers DOJ would love to nail. The fact that he used his one call to call her made DOJ believe that she could verify Swartz’ motive. And they clearly suspected he had given her the Mac that might tie the JSTOR downloads to larger issues.

I’m still not convinced the focus on the Manifesto is evidence of anything so much as DOJ’s criminalization of open source culture. It incriminates DOJ more than it ever did Swartz.

But (presumably though not definitely in addition to personal communications), that’s what they got by hammering on someone far more vulnerable than Swartz.

Update: Via Twitter, Norton says she did not turn over any LISTSERV material. Someone else must have.

Once Again, Lying to Courts to Protect Banks Goes Unpunished

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This story — about how Occupy Wall Street protestor Michael Premo beat an assaulting an officer charge when his lawyers found video evidence to disprove the NYPD’s claims — might make you believe in justice.

Except for this. Premo’s lawyers first went to the cops for video, knowing they had tons of officers deployed with cameras during the protests. They found the cop who had relevant video. And … he apparently lied in court about whether he had that video.

Prosecutors told them that police TARU units, who filmed virtually every moment of Occupy street protests, didn’t have any footage of the entire incident. But [Premo’s lawyer Meghan] Maurus knew from video evidence she had received while representing another defendant arrested that day that there was at least one TARU officer with relevant footage. Reviewing video shot by a citizen-journalist livestreamer during Premo’s arrest, she learned that a Democracy Nowcameraman was right in the middle of the fray, and when she tracked him down, he showed her a video that so perfectly suited her needs it brought a tear to her eye.

For one thing, the video prominently shows a TARU cop named Bosco, holding up his camera, which is on, and pointing at the action around the kettle. When Premo’s lawyers subpoenaed Bosco, they were told he was on a secret mission at “an undisclosed location,” and couldn’t respond to the subpoena. Judge Robert Mandelbaum didn’t accept that, and Bosco ultimately had to testify [Correction: Bosco didn’t take the stand; he had to appear at the District Attorney’s office for a meeting with Maurus and prosecutors. Judge Mandelbaum accepted that Bosco would likely say on the stand what he said in the meeting, and didn’t require him to testify.] Bosco claimed, straining credibility, that though the camera is clearly on and he can be seen in the video pointing it as though to frame a shot, he didn’t actually shoot any video that evening.

Bosco almost certainly lied. The NYPD clearly lied, repeatedly.

And yet there’s no hint they’ll be charged with obstructing justice.

While you’re reflecting on that, remember what the cops were doing (funded, in part, by JP Morgan Chase $4.6 million donation to the NYPD Foundation). They were making sure that a bunch of hippies could not continue to engage in a highly visible challenge to bank power, and certainly not in the banks’ turf around Wall Street.

Sure, OWS did not present as significant a financial threat as preventing banks from foreclosing on homes they did not hold the proper paperwork on — the threat that robosigners lied under oath to combat. But they did present an ideological threat to the banks.

And here we are, again finding people — cops! — lying in court to protect the banks. And here we are, once again, finding those liars go unpunished.

The Traditional Press’ Blind Spot in Aiding the Enemy

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This post by Kevin Gosztola lays out many of the implications of the news — revealed in Bradley Manning’s statement to the court yesterday — that he tried to publish the Iraq and Afghan cables with WaPo, NYT, and Politico before he turned to WikiLeaks. He describes, as Michael Calderone has laid out at length, how NYT and WaPo claim to have no memory of Manning’s pitch.

He wonders what the NYT and WaPo would have done had they actually gotten exclusive dibs on Manning’s trove of information.

Had the Times or Post obtained the logs and begun to examine them for publication, what would the organizations have done? Would they have published? Would they have notified the government they now possessed the documents? The Timescommunicated with the government when preparing to publish State Department cables:

Because of the range of the material and the very nature of diplomacy, the embassy cables were bound to be more explosive than the War Logs. Dean Baquet, our Washington bureau chief, gave the White House an early warning on Nov. 19. The following Tuesday, two days before Thanksgiving, Baquet and two colleagues were invited to a windowless room at the State Department, where they encountered an unsmiling crowd. Representatives from the White House, the State Department, the Office of the Director of National Intelligence, the C.I.A., the Defense Intelligence Agency, the FBI and the Pentagon gathered around a conference table. Others, who never identified themselves, lined the walls. A solitary note-taker tapped away on a computer.

What would have happened to Manning? Would they have been able to protect the identity of the lower-level soldier who had passed on information because he believed they were “some of the most significant documents of our time, removing the fog of war and revealing the true nature of 21st Century asymmetric warfare.”

The example of Jeffrey Sterling, where NYT’s apparent consultation with the government on whether to publish Risen’s story about Merlin appears to have launched the investigation into Sterling, heightens this concern.

And I would also ask whether the papers would sit on the information, using it as their exclusive data, rather than releasing it to be crowd sourced and accessed by people with more expertise on particular areas. A WikiLeaks trove would have made (and to some extent has in any case) the NYT brand for some time. Would the paper have put more stock in that than in sharing the information.

After raising questions about whether NYT would expose its source in such a case, Gosztola concludes, shows the value of organizations like WikiLeaks.

This is why leaks organizations like WikiLeaks are needed. Not only do they have the power to reveal what governments are doing in secret, they also are uniquely positioned—if constructed appropriately—to protect the identity of sources in a such way that makes it near impossible for governments to pursue those blowing the whistle. It creates the possibility that employees in militaries or national security agencies can reveal what they are seeing, be conscientious citizens and at the same time keep their job and, perhaps, not risk their livelihood.

I’d add two points to that.

NYT’s normally excellent ombud, Margaret Sullivan, suggested that the paper could continue the “time-tested way” of sourcing leaks directly to reporters. Dan Froomkin argues this news proves the need for a whistleblower drop box.

Both are ignoring a very dangerous new reality of the war on leakers. Read more →

Secret Service Claims It’s Still Investigating Now-Deceased Aaron Swartz

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After Aaron Swartz died, Jason Leopold FOIAed Secret Service, since that’s the agency that was investigating Swartz when he died.

Curiously, contrary to the FBI — which at least claims to have treated Swartz as they would any other deceased person and turned over all but two pages of his PACER investigation file — Secret Service denied Leopold’s FOIA.

“Disclosure could reasonably be expected to interfere with enforcement proceedings,” they said.

Or, to translate from FOIA-speak, the investigation into Aaron Swartz, who died weeks and weeks ago, is an active investigation.

Most interesting came when USSS’s FOIA officer claimed there was nothing segregable from this “open case.”

We were then transferred to Latita Payne, the Secret Service’s FOIA disclosure officer, who explained to Truthout, “we did a search of our offices [for responsive records] and they responded that it’s an open case.”

Payne said there weren’t any segregable portions of records on Swartz that the Secret Service could release.

Secret Service doesn’t want to turn over Swartz’ file — any of it — because any little bit of it might reveal its investigation into … something. Someone. Presumably not Swartz, since he’s dead.

Now, since USSS first responded to Leopold, they seem to have decided that this answer — the claim they can’t release any files on an investigation into a deceased person — isn’t going to fly, so they’re going to reconsider that answer.

We’ll see how forthcoming that response is.

One other detail. Notice how FBI released its response to Swartz FOIA just long enough before this response so distracted people might think the FBI file is all there is (as if a huge indictment would leave no tracks)? Nice timing.