The Government Once Again Harrasses Others to Hide Its Own Failures

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This is a post I could have written (in fact, I think I did here, here, here, and here). One difference, however, is that the author of this post is a government insider, State Department Foreign Service Officer Peter Van Buren.

The State Department and its Bureau of Diplomatic Security never took responsibility for their part in the loss of all those [WikiLeak] cables, never acknowledged their own mistakes or porous security measures. No one will ever be fired at State because of WikiLeaks — except, at some point, possibly me. Instead, State joined in the Federal mugging of Army Private Bradley Manning, the person alleged to have copied the cables onto a Lady Gaga CD while sitting in the Iraqi desert.

That all those cables were available electronically to everyone from the Secretary of State to a lowly Army private was the result of a clumsy post-9/11 decision at the highest levels of the State Department to quickly make up for information-sharing shortcomings. Trying to please an angry Bush White House, State went from sharing almost nothing to sharing almost everything overnight. They flung their whole library onto the government’s classified intranet, SIPRnet, making it available to hundreds of thousands of Federal employees worldwide. It is usually not a good idea to make classified information that broadly available when you cannot control who gets access to it outside your own organization. The intelligence agencies and the military certainly did no such thing on SIPRnet, before or after 9/11.

State did not restrict access. If you were in, you could see it all. There was no safeguard to ask why someone in the Army in Iraq in 2010 needed to see reporting from 1980s Iceland. Even inside their own organization, State requires its employees to “subscribe” to classified cables by topic, creating a record of what you see and limiting access by justifiable need. A guy who works on trade issues for Morocco might need to explain why he asked for political-military reports from Chile.

Another difference is that Van Buren is being harassed because he included a link from his blog to some cables describing the US dealing weapons to Moammar Qaddafi, including this account of John McCain and Lindsey Graham sucking up to the dictator.

The more amusing cable is from August 2009, just two short years ago. It recounts the visit to Libya of Congressional super heroes John McCain,Joe Lieberman and Lindsey Graham. The boys had a nice visit with Qaddafi and his son it seems. The cable notes “Lieberman called Libya an important ally in the war on terrorism, noting that common enemies sometimes make better friends.” Old Man McCain assured his hosts “that the United States wanted to provide Libya with the equipment it needs for its security. He stated that he understood Libya’s requests regarding the rehabilitation of its eight C-130s and pledged to see what he could do to move things forward in Congress. He described the bilateral military relationship as strong and pointed to Libyan officer training at U.S. Command, Staff, and War colleges as some of the best programs for Libyan military participation.”

The cable continued to say that “Qadhafi commented that friendship was better for the people of both countries and expressed his desire to see the relationship flourish. He thanked the Senators for their visit and described America as a race rather than a nationality, explaining that many Libyans are dual citizens because they were born in the United States. Senators McCain and Graham conveyed the U.S. interest in continuing the progress of the bilateral relationship and pledged to try to resolve the C-130 issue with Congress and Defense Secretary Gates.”

And whereas in my posts on the government’s overreaction to WikiLeaks, I focused on DOD’s hypocrisy on assigning all of the blame for a massive security breach to Bradley Manning in spite of its own rank incompetence keeping its networks safe, Van Buren rehearses the State Department’s past failures to keep their data safe.

Over the years, State has leaked like an old boot. One of its most hilarious security breaches took place when an unknown person walked into the Secretary of State’s outer office and grabbed a pile of classified documents. From the vast trove of missing classified laptops to bugging devices found in its secure conference rooms, from high ranking officials trading secrets in Vienna to top diplomats dallying with spies in Taiwan, even the publicly available list is long and ugly.

[snip]

Then again, history shows that technical security is just not State’s game, which means the Wikileaks uproar is less of a surprise in context. For example,in 2006, news reports indicated that State’s computer systems were massively hacked by Chinese computer geeks.  In 2008, State data disclosures led to an identity theft scheme only uncovered through a fluke arrest by the Washington D.C. cops.  Before it was closed down in 2009, snooping on private passport records was a popular intramural activity at the State Department, widely known and casually accepted.  In 2011, contractors using fake identities appear to have downloaded 250,000 internal medical records of State Department employees, including mine.

[snip]

Diplomatic Security famously took into custody the color slides reproduced in the Foreign Service Journal showing an open copy of one of the Government’s most sensitive intelligence documents, albeit only after the photos were published and distributed in the thousands. Similarly DS made it a crime to take photos of the giant U.S. Embassy compound in Baghdad, but only after the architecture firm building it posted sketches of the Embassy online; a Google search will still reveal many of those images; others who served in Iraq have posted them on their unsecured Facebook pages

Finally, though, there’s the big difference. State is threatening to take away Van Buren’s security clearance, which would amount to firing a successful Foreign Service Officer for a few links to WikiLeaks cables widely available elsewhere.

Secrecy News just posted a Congressional Research Service report written on WikiLeaks type leaks. As SN has previously reported, CRS researchers aren’t allowed to refer to the WL cables, not even for their reports.

“Add me to the list of grumblers,” said a respected national security analyst at the Congressional Research Service, where employees have been prohibited from accessing WikiLeaks documents online.

“This whole thing is so [expletive] stupid,” he said yesterday. “Even staff with clearances can’t read the cables, let alone quote them. One reason is that we can’t read classified materials on unclassified computers and we have no classified computers.”

“We can now quote news stories which cite the cables, but we have no way of verifying whether the article correctly quotes the cables.”

“This is hampering CRS work and management knows it,” the analyst said.  “There’s just no leadership on this issue.”

The rule, in the case of this recent report, results in the absurdity of long footnotes citing news articles, but never once citing an actual WL cable.

16 State’s Secrets, NY TIMES (online edition), Nov. 29, 2010, http://www.nytimes.com/interactive/world/statessecrets.html. According to the Guardian, the fact that most of the cables are dated from 2008 to 2009 is explained by the increase in the number of U.S. embassies linked to the military’s secure computer network, SIPRNet, over the past decade. See The US embassy cables, GUARDIAN (UK), http://www.guardian.co.uk/news/datablog/2010/nov/29/wikileaks-cables-data.
17 Scott Shane and Andrew W. Lehren, Cables Obtained by WikiLeaks Shine Light Into Secret Diplomatic Channels, NY TIMES.
18 The Guardian states that the earliest of the cables is from 1966. See The US embassy cables, supra footnote 16.

Not to mention a CRS report the very first sentence of which makes a demonstrably false statement.

The online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by The New York Times, The Guardian (UK), and Der Spiegel (Germany), among others, have focused attention on whether such publication violates U.S. criminal law. [my emphasis]

The Iraq cables were published simultaneously, and except for the recent dump of everything, the State cables were published by the newspapers before WL published them.

This continuing game–the persecution of insiders for non-serious leaks while sanctioned leaks to Bob Woodward or General’s kids go un-investigated, the preference for the error and inanity of this CRS report over actual information–is getting really pathetic. It makes us dysfunctional as a country, preventing real discussion and therefore sound decision making, while we’re not doing the bureaucratic things to keep our secrets safe from our actual enemies. And all the while, efforts of people like Van Buren to tell us what a catastrophe our Iraq project really was get punished.

Obama Rejects Senate Advice and Consent Over the Guy Who Data Mines Our Communications

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The Administration has released a veto threat of the Intelligence Authorization that I’m going to deal with in reverse order.

The last objection argues that we can’t require the head of the NSA–the agency that gets to collect and data mine virtually all of America’s telecom metadata, as well as a lot of the actual content–face Senate confirmation because that person might not be confirmed.

Confirmation of Appointment of the Director of the National Security Agency:  The Administration strongly objects to section 421, which would add a requirement that the person nominated for the position of Director of the National Security Agency be confirmed by the Senate.  The Administration believes that if this provision were to become law, a critical national security position would likely remain unfilled for a significant period of time, adversely impacting the management and function of the National Security Agency.

Admittedly, Obama has had problems getting his nominees through Congress, partly because of Republican intransigence, partly because he hung out his most progressive nominees to dry, and partly because he hasn’t gotten nominees in place.

But the solution for that is not to give up! The solution is turn Republican intransigence into a political liability. And there’s no easier area to do that with than National Security. Indeed, the only National Security nominees I’m aware of who got held up (aside from Eric Holder until he promised not to prosecute torture) were TSA nominees who supported TSA workers’ right to organize; with them, Obama made no effort to accuse Republicans for exposing the country to danger over a political spat. And even James Clapper–about whom a number of Senators had concerns–got confirmed unanimously.

Then there’s the Administration’s objection to the requirement for records of diplomatic negotiations about detainees.

Submission of Information on Detainees Held at United States Naval Station, Guantanamo Bay, Cuba: The Administration strongly objects to sections 307 and 309, which would state that the DNI must provide the Intelligence Committees with each Department of State cable, memorandum, or report containing certain information relating to Guantanamo Bay detainees, as well as government-to-government assurances related to the transfer of those detainees. The Administration believes that such disclosure will have a significant adverse impact on the willingness of foreign partners, who often expressly request this information not be disseminated, to communicate frankly on these matters.

The cables and other documents at issue – originated and controlled by the Department of State, not the ODNI – contain deliberative commentary and sensitive diplomatic discussions and negotiations, including commitments made by foreign governments relating to the handling of transferred detainees. The Department of State has accordingly declined to produce these documents to Congress or to U.S. federal courts because of the need to protect diplomatic communications in conducing effective foreign relations. The Administration is concerned that these provisions may conflict with the Executive Branch’s constitutional authority to control the disclosure of information when necessary to preserve the Executive’s ability to perform its constitutional responsibilities.

There’s a deep, deep irony here. If this were Dick Cheney’s Administration, he would have added a “besides, Congress leaks so much we can’t let these sensitive materials circulate.” Except the Executive Branch is here refusing to share with the legislative branch the kinds of cables that were leaked to WikiLeaks, largely because of the incompetence of the Executive Branch.

You see, the Executive Branch may have “constitutional authority to control the disclosure of information,” but not, apparently, the basic competence to do so.

And so Congress can’t know whether the US is letting detainees of certain nationalities–like, say, Saudi Arabia–be released because of diplomatic sensitivities. Congress can’t know whether we release someone like David Hicks to help a political ally win an election. And Congress also can’t know what is probably the greater sensitivity, whether and how the Executive Branch, and allies like the Saudis, believe they’re flipping detainees to work as spies (often mistakenly).

I can see why such a requirement would elicit a veto threat.

But I think the real veto threat comes from stuff we’re not allowed to know about.

The Administration looks forward to reviewing the updated classified annex accompanying H.R. 1892.  In a letter from the Director of National Intelligence dated August 30, 2011, the Administration identified specific provisions in the Senate classified annex that also raised serious concerns.  If H.R. 1892 is presented to the President and includes the issues of concern described below and includes, but does not adequately address, the specific provisions of the Senate classified annex, the President’s senior advisors would recommend a veto.

The fact that much of this veto threat pertains to stuff that is substantive and sensitive enough to appear in the classified annex suggests it might be a real issue (and note that the items to which the Administration objects are in the Senate annex, not the House one, so they’re not something Michele Bachmann dreamt up to be cute). It is very rare that Administrations differ with Congress on such substantive issues (as opposed to, say, GAO review). Which suggests this may well be the really interesting source of the veto threat.

The Inevitable Collapse of Legitimacy Under Secret Law: WikiLeaks Hacks

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

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

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

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

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

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

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

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

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

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

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

And we know they do that.

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

Visa Shuts Down DataCell’s Donation Processing for WikiLeaks Again

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Well, I guess this will add to the evidence that Visa is refusing to accept donations from DataCell because it works with WikiLeaks.

For a few hours on Thursday, credit card donations once again flowed to WikiLeaks through a payment gateway at Icelandic hosting company DataCell. Then Visa shut it down again.

DataCell CEO Andreas Fink said his company had found a new payment acquirer, Valitor, willing to process payments to WikiLeaks, and accepted thousands of donations to the whistle-blowing website before running into problems around 3.30 a.m. Icelandic time.

[snip]

According to Visa representative Amanda Kamin, “An acquirer briefly accepted payments on a merchant site linked to WikiLeaks. As soon as this came to our attention, action was taken with the suspension of Visa payment acceptance to the site remaining in place.”

DataCell’s contract with Valitor contains no terms that forbid DataCell from accepting donations on behalf of WikiLeaks, Fink said.

It’ll be interesting to see whether Valitor’s brief acceptance of DataCell donations will get it in trouble under Visa’s merchant agreements. Or whether they got written threats of trouble.

Because that’s the kind of thing that might make Europe more concerned about this abuse of Visa and MasterCard’s monopoly position.

Credit Card Companies Forestall Legal Trouble by Allowing Donations via DataCell

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Credit card of future

Credit card of future by Robert Scoble

Remember that suit Wikileaks’ hosting company, DataCell was about to file? Today was the day they were planning to do so. And surprise surprise, Visa and MasterCard have suddenly decided to start processing payments from DataCell again.

Late last week, WikiLeaks and DataCell gave me a copy of a legal complaint the group had planned to file Thursday with the European Union Commission, accusing the card companies and their Danish payment processor Teller of abusing their market positions by cutting off WikiLeaks’ financial sources.

Neither Visa nor MasterCard has responded to that threat, and even now a Visa spokesperson merely tells me that the company is “looking into the situation.”

But in the meantime, Visa, MasterCard and American Express payments have all inexplicably opened to DataCell and WikiLeaks through another payment processor, according to DataCell.

“Today we have observed that an alternative payment processor that we have contracted with, has in fact opened the gateway for payments with Visa and Mastercard, and now also for American Express Card payments, which is an option we did not had before,” DataCell wrote in a statement on its website.

We’ll see how long it lasts. But it says something about the due process used here if the mere threat of legal action has opened up the credit processing already.

Rupert Murdoch’s Hacks

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

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

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

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

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

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

[snip]

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

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

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

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

 

The WikiLeaks Suit against Visa and MasterCard

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You may have heard that WikiLeaks is suing Visa and MasterCard for refusing to process donations to it.

That’s not actually the case. Forbes has gotten a copy of the complaint, and as it lays out, an Icelandic company called DataCell is suing, and it’s suing in Europe, not the US. DataCell is basically a hosting service for WikiLeaks and “businesses, NGOs, humanitarian organisations and others.” It had contracted with two payment services companies, Teller and Korta, on October 18, 2010, with the explicit intention of accepting donations for WL. But on December 7 (not long after the WL cables started coming out), they terminated those services. But that affects both WL and any other clients DataCell might have. And according to an explanation from Teller, no payment services company will contract with DataCell, even if it doesn’t work with WL.

[A]ccording to Teller’s explanations acquiring firms in Europe are not about to be allowed by MC and Visa to open merchant agreements with DataCell, irrespective of whether the company would service Sunshine press/Wikileaks as a payment facilitator or not.

And that’s true even though DataCell has nothing more than business relationship with WL.

There are no ownership or “board or management” connections between DataCell and the Sunshine Press Foundation, the corporate part of Wikileaks. The relationship between DataCell and Sunshine Press/Wikileaks is a pure business relationship.

DataCell also notes that Visa and MasterCard have sustained relationships with other media outlets that have published WL content.

Of note, Teller is also the company that has admitted that WL had broken none of Visa’s rules or Iceland’s laws.

Teller has found no signs indicating that Sunshine Press acts in contravention of Visa rules or national legislation in Iceland. Neither Teller nor Visa licence holders may enter into any agreement with Sunshine Press on the possessing of Visa payments, until this has been approved by Visa Europe. Teller now awaits Visa Europe’s approval.

All of which is the basis for DataCell’s argument that by refusing to let any of its payment services companies in Europe to provide services to DataCell, Visa and MasterCard have violated Europe’s competition laws. It argues that they have used their monopoly position–Visa has 68% of the market and Mastercard has 28%–to prevent DataCell from competing in Europe.

Now, I have no idea how this suit will fare legally.

But I’m interested in what it does rhetorically. Effectively, DataCell has been treated like companies that provide material support for terrorism (without being listed in any list of entities that do so); either through US intervention or via voluntary actions from Visa and MasterCard, they have singled out DataCell to put out of business because of its tie to WL. And it has done so in a market that is none too impressed with US claims about WL’s dangerousness, nor with US bigfooting Europe on data issues.

Effectively, it calls attention to the way that Visa and MasterCard abuse their monopoly position to do the bidding of the US.

We’ll see how that goes over with European consumers.

Did Thomas Drake Get iJustice?

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There’s an interesting discussion at the end of Josh Gerstein’s article on the Drake plea agreement. He points out that after Judge Bennett ruled that the government needed more descriptive substitutions for some of its exhibits, DOJ did not appeal the decision.

Experts said it was unlikely that Bennett’s rulings accounted entirely for the government’s sudden willingness to accept a sharply reduced charge. In a court filing Friday, prosecutors said “the government respectfully disagrees with the Court’s rulings” regarding what information Drake was entitled to use in his defense.

“In light of the Court’s ruling, which would mean that highly classified information would appear, without substitution, in exhibits made publicly available, the NSA has concluded that such disclosure would harm national security,” prosecutors wrote.

In cases involving classified evidence, the government has the right to pursue a pre-trial appeal challenging a judge’s rulings about what evidence the defense can present and any “substitutions” used to camouflage secret information.

Despite its disagreement with Bennett, who was appointed to the bench by Bush, the Justice Department did not challenge the judge’s rulings and instead commenced jury selection for the trial.

He also describes Jesselyn Radack, who in her role at Government Accountability Project, had supported Drake in his whistleblower stance, saying,

Radack told reporters that when [prosecutor William] Welch initiated plea talks a week ago he said he was doing so at [DOJ Criminal Division head Lanny] Breuer’s urging. She attributed the government’s flexible stance in part to sympathetic media coverage Drake received in recent weeks from The New Yorker and “60 Minutes,” among others.

Now, I have no idea whether Radack was close enough to the DOJ side of things to be able to judge their motivation. But I am struck that Lanny Breuer instructed Welch to seek a plea deal. And if Radack’s timing is correct, then DOJ started seeking a plea deal on the same day that Bennett ruled on the CIPA substitutions, but before DOJ actually withdrew its exhibits.

Radack attributes DOJ’s changed stance to reporters’ coverage of Drake’s case (ironically, in fact, to New Yorker and 60 Minutes pieces that almost certainly contained far more classified information in them than Drake was alleged to have kept).

But POGO’s Danielle Brian recalls that she raised Drake’s treatment with President Obama back in March.

I knew my topic was likely to be sensitive. I began by thanking the President for his strong support of whistleblower protections, and noted that it was not for lack of effort on the part of the White House that the legislation didn’t pass at the end of the last Congress.

I noted, however, that the current aggressive prosecution of national security whistleblowers is undermining this legacy. That we need to create safe channels for disclosure of wrongdoing in national security agencies. That we need to work harder to shrink the amount of over-classified materials that unnecessarily prompt leak prosecutions.The President shifted in his seat and leaned forward. He said he wanted to engage on this topic because this may be where we have some differences. He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops. He differentiated these leaks from those whistleblowers exposing a contractor getting paid for work they are not performing. I was careful not to interrupt the President, but waited until he was done. I pointed out that few, if any, in our community would disagree with his distinction—but that in reality the current prosecutions are not of those high-level officials who regularly leak to the press to advance their policy agendas. Instead, the Department of Justice (DOJ) is prosecuting exactly the kind of whistleblower he described, for example one from the National Security Agency.

The President then did something that I think was remarkable. He said this is an incredibly difficult area and he wants to work through how to do a better job in handling it.

And Brian also mentioned something I thought of, too: Thomas Drake’s chance encounter with Eric Holder at the Apple store where he works.

Former National Security Agency (NSA) official Thomas Drake, who is being prosecuted under the Espionage Act for allegedly “retaining” allegedly “classified” information (deemed so AFTER the evidence was seized from his house and subject to a Forced Classification Review), was busy at work at the Apple Store.  Attorney General Eric Holder was at the iPhone table.

Drake said,

Attorney General Holder [Holder looks up]–I’m Thomas Drake, the former National Security Agency official who’s been in the news.

Holder looked directly at him. Drake then asked,

Do you know why they have come after me?

Holder answered,

Yes, I do.

Drake asked,

But do you know the rest of the story?

Holder looked away, and then just left the store with his small entourage, including his security detail.

That encounter appears to have happened in late May.

Mind you, it shouldn’t take personal encounters like this for the Administration to realize it was going to look really stupid trying to convict a guy for keeping two unclassified documents in his email archive. But in the same way that it took PJ Crowley asking the President about Bradley Manning, did it take Thomas Drake asking Eric Holder about his own case to make that case to the Administration?

ACLU FOIAs WikiLeaks Cables

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Back in April, the ACLU FOIAed a bunch of State Department cables that had been released via WikiLeaks. The State Department made no response. So now the ACLU is suing to get the cables.

The suit is interesting for several reasons. First, check out which cables ACLU has FOIAed:

The requested cables relate to the United States’ diplomatic response to foreign investigations of United States abduction, interrogation, detention, and rendition practices; efforts by the Federal government to prosecute or release former and current Guantanamo detainees; the United States’ use of unmanned aerial vehicles; and the diplomatic efforts surrounding President Obama’s decision to oppose the release of photographs depicting U.S. interrogations of persons suspected of terrorism.

The ACLU is focusing on cables that cut to the heart of America’s hypocrisy on human rights and international law.

As the suit suggests, it wants the government to have to confirm or deny whether the discussions depicted in the cables actually happened.

In spite of the urgent national interest and extensive media coverage surrounding the alleged diplomatic cables, at the time this FOIA request was made, DOS had not yet informed the American people whether the disclosed documents referred to actual federal government activity. Nor has it done so to date.

Mind you, we know they really happened–but by releasing the cables through FOIA, the State Department will have to admit it. And if they have to admit it, it will become harder to keep quashing these investigations.

(As luck would have it, the European Parliament yesterday just passed a resolution that “Calls on the EU and Member States authorities, as well as the US authorities, to ensure that full, fair, effective, independent and impartial inquiries and investigations are carried out into human rights violations and crimes under international, European and national law, and to bring to justice those responsible, including in the framework of the CIA extraordinary renditions and secret prisons programme;”)

Plus, this suit will be an interesting parallel proceeding to the government’s plodding formulation of guidelines that will allow Gitmo defense lawyers some access to the Gitmo Documents that describe their clients.

Finally, there’s one other interesting wrinkle here. Many of these documents seemingly should have been turned over in the ACLU’s (and CCR’s) previous FOIAs on torture and rendition. So will this FOIA suit force the State Department to admit whether it was blowing off a FOIA in the past?

Here’s the actual request from April. The cables they’ve requested are below:

SPAIN STILL INTERESTED IN GUANTANAMO DETAINEES, BUT NOT OPTIMISTIC ABOUT CONVICTION

SPAIN: PROSECUTOR WEIGHS GTMO CRIMINAL CASE VS. FORMER USG OFFICIALS

SPAIN: ATTORNEY GENERAL RECOMMENDS COURT NOT PURSUE GTMO CRIMINAL CASE VS. FORMER USG OFFICIALS

GARZON OPENS SECOND INVESTIGATION INTO ALLEGED U.S. TORTURE OF TERRORISM DETAINEES

GOT ASKS EUROPEANS NOT TO TAKE TUNISIAN GUANTANAMO DETAINEES

SUBJECT: REQUEST FOR EXPLANATION OF RETURNED DETAINEE ARM DISABILITY

COUNSELOR, CSIS DIRECTOR DISCUSS CT THREATS, PAKISTAN, AFGHANISTAN, IRAN

TO HELL AND BACK: GITMO EX-DETAINEE STUMPS IN LUXEMBOURG

FRENCH JUDGE SAYS C/T FOCUS IS ON “JIHADISTS TO IRAQ”

TWO EX-GTMO DETAINEES CHARGED WITH TERRORIST CONSPIRACY BUT ONE ORDERED RELEASED ON BAIL

DOD INTEL FLIGHTS: FCO CLARIFIES

EMERGING CONSTRAINTS ON U.S. MILITARY TRANSITS AT SHANNON

PORTUGUESE FM OFFERS TO RESIGN IF CIA FLIGHT ALLEGATIONS PROVE TRUE

GENERAL PETRAEUS’ MEETING WITH SALEH ON SECURITY ASSISTANCE, AQAP STRIKES

GILANI TO CODEL SNOWE: HELP US HIT TARGETS

USDP EDELMAN’S OCTOBER 15 MEETINGS IN LONDON

SPECIAL ADVISOR HOLBROOKE’S MEETING WITH SAUDI ASSISTANT INTERIOR MINISTER PRINCE MOHAMMED BIN NAYEF

SWISS COUNTERTERRORISM OVERVIEW – SCENESETTER FOR FBI DIRECTOR MUELLER

GOS “HEADS UP”: SWISS FEDERAL PROSECUTOR TO ANNOUNCE FINDINGS ON OVERFLIGHT INVESTIGATION

SECDEF MEETING WITH ITALIAN PRIME MINISTER SILVIO BERLUSCONI, FEBRUARY 6, 201…

NETHERLANDS: TOUR D’HORIZON WITH FOREIGN MINISTER BOT

AL-MASRI CASE — CHANCELLERY AWARE OF USG CONCERNS

Have WSJ and Al Jazeera Already Ceded the Espionage Debate?

/in , /by

EFF has a report on the terms of service WSJ and AJ offer leakers using their WikiLeaks competitor sites. I had already heard that WSJ offered almost no technical security (which EFF describes), but it turns out neither offer much in the way of confidentiality guarantees.

Despite promising anonymity, security and confidentiality, [Al Jazeera Transparency Unit] can “share personally identifiable information in response to a law enforcement agency’s request, or where we believe it is necessary.” [WSJ’s] SafeHouse’s terms of service reserve the right “to disclose any information about you to law enforcement authorities” without notice, then goes even further, reserving the right to disclose information to any “requesting third party,” not only to comply with the law but also to “protect the property or rights of Dow Jones or any affiliated companies” or to “safeguard the interests of others.” As one commentator put it bluntly, this is “insanely broad.” Neither SafeHouse or AJTU bother telling users how they determine when they’ll disclose information, or who’s in charge of the decision.

[snip]

By uploading to SafeHouse, you represent that your actions “will not violate any law, or the rights of any person.” By uploading to AJTU, you represent that you “have the full legal right, power and authority” to give them ownership of the material, and that the material doesn’t “infringe upon or violate the right of privacy or right of publicity of, or constitute a libel or slander against, or violate any common law or any other right of, any person or entity.”

[snip]

SafeHouse offers users three upload options: standard, anonymous, and confidential. The “standard” SafeHouse upload “makes no representations regarding confidentiality.” Neither does the “anonymous” upload which, as Appelbaum pointed out, couldn’t technically provide it anyway. For “confidential” submissions, a user must first send the WSJ a confidentiality request. The request itself, unsurprisingly, is neither confidential nor anonymous. And until the individual user works out a specific agreement with the paper, nothing is confidential.

Similarly, AJTU makes clear that “AJTU has no obligation to maintain the confidentiality of any information, in whatever form, contained in any submission.” Worse, AJTU’s website by default plants a trackable cookie on your web browser which allows them “to provide restricted information to third parties.” So much for anonymity!

I’m fascinated by this not just because they obviously won’t provide a real alternative to WL, but because of what they say about the evolving gatekeeper relationship of news outlets.

Keep in mind that both these outlets make curious candidates for a WL competitor.

For its part, WSJ would be unable to sustain its unique market position if it routinely offered corporate whistleblowers–particularly from the finance industry–a way to leak confidentially. Its demand that leakers represent that they have not violated the rights of any person, its warning that it might share information on leakers with requesting third parties, and its intent to safeguard the interests of others all sounds like WSJ is more interested in its corporate advertisers and the security of their information than protecting whistleblowers. Indeed, you might even say this is more of an ambivalent information service WSJ offers, potentially luring (say) Bank of America leakers who might otherwise leak to WL, possibly for stories, but possibly also to share with BoA.

Then there’s al Jazeera. Particularly since it is not US-based, and given its tie with the Qatari government, one would assume that they such a site would be closely monitored. The US has a long history of persecution of AJ, including imprisoning and killing journalists. Perhaps it’s not surprising how few protections it offers.

And all that’s before you consider the fact that the US government is trying to prosecute WL for espionage. Murdoch is in the middle of a spying scandal in the UK; AJ journalists have been treated, unfairly, as terrorists. That makes both somewhat vulnerable. And the USG has declared an entity that publishes anonymous leakers to be spy organizations, not something either WSJ or AJ need.

Which is why I find it so interesting that these two outlets, while claiming to do the same thing as WL did, fall so far short of attempting to offer true anonymity to their sources. Here, the protection accorded leakers is actually less than a traditional journalist would offer. It’s as if they’re ceding the US government argument that anonymous leaks are so much worse than the leaks from the powerful so often featured in outlets like WSJ.

Or perhaps they’re just trying to reinforce their traditional gatekeeper role while attempting to undercut the competition?

Updated for syntax and to fix WSJ/Murdoch conflation.