• Barrett Brown Went to Jail for My Sins

    January 23, 2015 // 18 Comments »



    This– THIS LINK— could have sent me to jail. Another link came very, very close to sending Barrett Brown to jail. Brown was just sentenced to five years in jail on other charges that the government could make stick, in another step towards the criminalization of everything.



    The United States v. Barrett Brown

    Brown, pictured, 33-years-old, was arrested in 2012 after his and his mothers’ homes were raided and he used “threatening” language toward FBI officers in a response posted to YouTube. He was subsequently accused of working with hackers, whose efforts yielded a huge tranche of embarrassing and revealing information concerning misbehavior and sleaze at U.S. government contractors, primarily Stratfor.

    Among the secrets exposed were collaborative efforts between the government and private contractors to monitor social networks, and to develop online surveillance systems.

    The charges against Brown included the claim that merely linking to the leaked information was illegal, an alleged crime for which prosecutors sought decades in prison. Brown ultimately signed a plea deal on three lesser charges: transmitting a threat (the YouTube video), trying to hide a laptop computer during a raid, and to being “accessory after the fact in the unauthorized access to a protected computer.” He spent a year awaiting trial in federal prison, and was subject to a six-month gag order prohibiting him from even discussing his case with the media.

    On January 22, a Dallas court sentenced Barrett Brown to 63 months in federal prison, minus time already served. He was also ordered to pay $890,000 in restitution to the Stratfor Corporation.



    Who is Barrett Brown?

    Barrett Brown is an internet guy. He may or may not have been involved with web naughty boys Anonymous (he denies the association) and most certainly was deeply involved with broad free speech issues online. In 2011, Brown posted a link in a chatroom, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence. The link pointed to documents on the Wikileaks site. The docs are still there.

    The government arrested Brown and charged him with a number of offenses, the most significant of which was for posting that link. The link, the government contended, exposed enormous amounts of credit card information, a crime. Not mentioned by the government, the link also documented discussions of assassination, rendition and how to undermine journalists and foreign governments, plus the social media stuff mentioned above.

    To be clear, neither the government nor anyone else accused Brown of stealing the info himself, or misusing the info to use others’ credit cards, physically possessing the information, hosting it on a server he controlled or anything like that. His crime was simply linking to data that already existed on the Internet and which was already available worldwide for viewing.



    Looking for a Test Case

    Prior to Brown pleading guilty to the three lesser counts he was sentenced for January 22, the government dropped the other charges related to linking as a crime. Though the government in its Motion to Dismiss gave no reasons for its decision, the implication is that while they were clearly looking to set a precendent on the Brown case, they did not want that precedent to be a loss. Better to let a small fry like Brown swim away than risk the greater goal.

    What kind of test case? Having failed to find any legal or otherwise effective way to deal with sites like Wikileaks, or the publication of classified materials elsewhere on the Internet such as the Snowden documents, the government is taking a side-step in seeking to punish those that use, view or handle the material itself.

    For example, when the Wikileaks information first started pouring out across the web, most government agencies blocked access to the data via their firewalls, claiming the content was still classified and thus could not be viewed on a government computer even while it could be viewed on any other web-connected computer from Cleveland to Karachi. Similar blocks have been put in place to prevent much of the Snowden material from being viewed at various work sites.



    Before Barrett Brown, Me?

    The attempt by the government to punish people for links to “objectionable” material did not start with Brown. Though I can’t promise I was the first test case, I was certainly an early attempt.

    In 2010 the Department of State suspended the Top Secret security clearance I had held without incident or question for over twenty years because I linked to a supposedly classified document on the Wikileaks site from my blog.

    State referred my linkage to the Department of Justice for prosecution in fall 2010. When Justice declined without reason to pursue the case, State took the non-judicial action of “temporarily” suspending my security clearance indefinitely, because of the link. State claimed that via that link I revealed classified information publicly, a major no-no for cleared personnel and sought to fire me. As in the Brown case, in the end State choose not to pursue charges, again without comment. I was defended by several excellent lawyers, and retired from State on my own terms, including no gag orders.

    There may be other such link cases out there that we do not yet know of. They may be classified, or the parties involved may be under gag orders, as was Brown.

    Who’s Next?

    There appears little question that the government is testing the concept, looking for a case that it can win that would criminalize linking. From the government’s point of view, the win would pay off handsomely:

    — With use of their content criminalized, sites like Wikileaks would slip beneath the world radar. People would be increasingly afraid of reading them, and the crowdsourcing critical to sifting through millions of documents would slow down significantly.

    — In cases the government saw as particularly dangerous, people would disappear into jail. With a precedent set in a “good” test case, winning such prosecutions would be rote work for interns. Is there a link? Did Ms. X create the link? Does the link go to classified information? It’s a slam dunk.

    — Best of all from a control standpoint, prosecuting links will have a chilling affect. Many people will simply be afraid to take the chance of legal trouble and stop creating links or following them. That will certainly be the case among the main stream media, already far too skittish about security matters. One wonders what effect such prosecuting of links will have on search engines like Google, essentially little more than a collection of links.

    Another step toward a post-Constitutionalization of America is the creeping criminalization of everything. If every act is potentially cause for prosecution, the ability of the government to control what people do or say grows.

    So while we still can, better hit these links: Wikileaks, Cryptome, some Snowden.

    Who could have guessed that in 2015 a click of the mouse would be a subversive act?



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    Questions from Ferguson

    November 25, 2014 // 8 Comments »

    photos_of_Darren_Wilson



    I woke up this morning with the worst kind of hangover: anger, confusion, wondering what happened last night. Without a drop of alcohol to explain how I felt. So here are some of the questions I have about Michael Brown, Darren Wilson and Ferguson.


    Why was the Announcement Made as it Was?

    The grand jury made its decision no later than early afternoon on Monday. Why was the announcement held until 9pm EST? That put the announcement at the end of hours of tension allowed to build, after dark, and suspiciously smack in TV prime time. There was nothing more to “get ready” on the streets except to allow crowds to gather and frustration to ramp up. Why not make the announcement as soon as a decision was rendered? Why not hold it until say 7am Tuesday morning when people were asleep and not yet gathered? In daytime? Wouldn’t those actions have reduced somewhat the potential for violence?


    Why was the prosecutor, Robert McCulloch, Seemingly Smirking?

    Why was the prosecutor, Robert McCulloch, whose very title implies his task before a grand jury, seemingly so pleased with the result? Throughout his press conference, he went out of his way to chastise the media and mock discrepancies among the witnesses to Brown’s shooting. This was unprofessional at the very minimum, and did nothing to calm tensions or create the impression of a fair process.

    Every attorney knows that in any situation witnesses will disagree with one another. The shooting occurred within seconds, and each witness saw it from a different location, so of course statements will vary. And indeed it is possible in any criminal situation that some witnesses may lie. McCulloch essentially treated this as some sort of unique facet of the Brown case. He kept referring to the significant gaps between the physical evidence and witness statements, yet the key thing, what initially happened between Michael Brown and Darren Wilson at the window of the police car, was by its nature not able to be supported or refuted by any physical evidence (What was said? Who acted first? At what point did Wilson shoot?)


    Why was the Physical Evidence of Wilson’s Injury Not Seen as More Significant?

    A key element of showing Darren Wilson was justified in his use of deadly force was the claim that Michael Brown punched/attacked him in his police cruiser, causing Wilson to fear for his life and fire his weapon. The law governing this states “An officer may use lethal force only when the officer reasonably believes that the action is in defense of human life, including the officer’s own life.” To a casual observer, the injuries Wilson sustained, which appear to be minor bruises, do not support the criteria necessary to have fired the first shots or Wilson’s statements that his life was in danger. It was the action at the door of the police car precipitated everything that followed.

    Wilson’s injuries were testified to on page 25 of the transcript. The questions appear only to describe for the record what was evident in the hospital photos, nothing more.


    Given McCulloch’s Personal History, Which Creates the Appearance of Bias, Why did He Handle the Case?

    Everyone knew the Brown killing was among the most controversial and sensitive cases Missouri had seen for a long time. Given the racial tensions and violence that both happened and were worried to happen, avoiding even the appearance of bias seemed a key element in helping tamp down concerns that the issue was treated unjustly. So why was McCulloch allowed to shepherd the case?

    McCulloch has a tragic, close, familial connection to violence. In 1964 his father, a police officer, was shot and killed by an African-American man in a public housing complex. In 2000 McCulloch controversially declined to bring charges against two detectives accused of excessive force in the killing of two unarmed black men, who died after 20 shots were fired into their car by police.

    McCulloch made questionable statements in August as protests unfolded in Ferguson. He criticized Missouri Governor Nixon for replacing St. Louis County police control of the Ferguson protests with officers and leadership from the Missouri State Highway Patrol. “It’s shameful what he did today, he had no legal authority to do that,” McCulloch said at the time. “To denigrate the men and women of the county police department is shameful.” He also praised police: “The abuse that they took on that line was incredible,” he said, in reference to the SWAT and riot teams on call in Ferguson in the early days of the protests. “The use of force, while they were doing it under the circumstances, I don’t think was excessive,” he said.

    A formal accusation of bias towards the police on the part of McCulloch is impossible to demonstrate. The appearance of bias is impossible to ignore. Given the controversy and sensitivity of the Brown killing, was there not anyone else in the state of Missouri who could have prosecuted the case? Why didn’t the governor appoint a special prosecutor as he was able to do?


    Why Did the Grand Jury Take it Upon Themselves to Sort Out the Witnesses Conclusively?

    The point of a grand jury is only to determine if probable cause of a crime, a very low legal hurdle, exists. If it does, they return an indictment and the case goes to trial for resolution. There, in open court with all sides publicly testifying, a jury selected for the specific case goes through all the evidence, and decides which witnesses to believe and which to discard. Cross-examination occurs, particularly of critical witnesses such as Darren Wilson.

    The most significant elements of the case could only be accounted for by Wilson, or Brown. One is dead, and one is fighting for his life. The latter point is often a critical one in a criminal trial and a defendant’s statements exonerating themselves are often looked at very closely. One of the key points of even having a trial is for the trial jury to sort out conflicting evidence; absent a confession, every criminal case has some sort of conflicting evidence.

    It appears that the grand jury took it upon itself not just to decide if probable cause existed, but to try Darren Wilson in secret, without the checks and balances of an open trial.


    What was Said by Prosecutors in Front of the Grand Jury?

    Did prosecutors actually ask for the grand jury to indict? If they did not believe the evidence supported an indictment, why did they take the case to the grand jury instead of dismissing the charges themselves as if normal procedure? It is clear that prosecutors went to great efforts to challenge the credibility of outside witnesses, going as far as labeling some as making up their stories to match publicly-available details.

    Were the same standards applied to the ultimate witness, Darren Wilson? Were his conclusive statements, which some could consider to be self-serving, aggressively challenged? If they were, exposing that would help to calm tensions.

    Wilson’s grand jury testimony is here; it does not appear to contain challenging questioning, but have a look yourself.

    The key element in determining whether Wilson was justified in shooting was the the question of whether Wilson thought his own life was in mortal danger. Wilson made the following statements to the grand jury; were they seen by the jury as unbiased or self-serving, or simply truthful?

    Brown had the “crazy” look of a “demon… It looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him,” Wilson told the grand jury

    Wilson described Brown as “very aggressive” and was convinced the teen was “gonna kill me.” “It was just like intense,” the officer said. “I’ve never seen anybody look that, for lack of a better word, crazy.”

    Wilson also stated: “He turned, looked at me, made like a grunting noise and had the most intense aggressive face I’ve ever seen on a person.”

    Wilson was a veteran cop. Did anyone challenge his assertion, after years on the streets, that 18-year-old Michael Brown did indeed display the “most intense aggressive face I’ve ever seen on a person.”

    By the way, Brown, according to Wilson on page 225 of the transcript, only made that aggressive face after Wilson shot him the first time.


    So is This Over?

    This one we pretty much know the answer to. With the grand jury’s decision, Darren Wilson will not be criminally charged for killing Michael Brown by the state of Missouri.

    The Federal Department of Justice can charge Wilson with violating Brown’s civil rights, under the Fifth Amendment of the Bill of Rights, for “depriving him of his life.” Civil rights investigations can drag on for years. The Justice Department’s civil rights investigation into George Zimmerman, the neighborhood watch volunteer who fatally shot unarmed 17-year-old Trayvon Martin in Sanford, Florida, is still active after two years with no results expected, well, for a long time.



    More to Come

    I am not a lawyer, and in the short time since the grand jury’s announcement have obviously not yet waded through all 70 hours of testimony and thousands of pages of written documentation, so it is possible that answers to some of these questions may already exist. I hope so, but I worry they don’t.

    What happened in Ferguson matters to us all as Americans. Are we doomed to remain a nation hopelessly, violently adrift in a swamp of racism? Do we have a justice system that is indeed just? Can everyone expect to receive fair treatment in our system, from the moment police confront an alleged criminal to the moment some sort of final decision is reached? Do our police forces exist to “protect and serve,” or does that only apply to some groups of Americans, while for others the police are deadly enemies?

    Without any disrespect, Michael Browns’ come and go. There have been young black men killed under dubious circumstances by the police before Brown, and God help us, there will be more killed under dubious circumstances by the police after Brown.

    Until the real questions of Ferguson are answered, we will do this over and over and over again.



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    Ferguson Tourist Board Admits Bad Timing (Satire)

    November 22, 2014 // 19 Comments »

    ferguson


    “Yep, we blew it,” said a sheepish spokesperson for the Ferguson, Missouri tourist promotion board. “We really, really picked a bad week to go all in on our ‘urban young people’ tourism promotion campaign– Ferguson, It’ll Be Cray-Cray Ya’ll!

    With a grand jury decision on the shooting of Michael Brown in Ferguson expected Sunday, and with many predicting violence to follow that decision in the racially divided city, the tourism board admitted they had egg on their faces.

    “At first we were kind of excited. The hashtag we had been promoting, #Ferguson, really blew up on Twitter, and we were hearing that media from all over the world were block-booking hotel rooms. We mistakenly took all that as signs that our social media campaign had really caught on, until we read about the whole grand jury thing and Michael Brown. I guess we should get a news app on our phones or something. Really, we checked Instagram three or four times and there was nothing. Awkward!”

    In its own defense, the tourism board did emphasize that the campaign had been in the works for months, and that many of the contracts for advertising, billboards and fake friends on social media had to be lined up quite a while ago. “And besides,” said one anonymous staffer, “nobody at city hall returned a phone call or responded to even one of our emails for like, four months, so we just said to ourselves, better ‘go for it!'”

    “And yes, we have already heard that saying we were specifically ‘targeting’ the African-American community with our promotional campaign is really awkward in so many ways. It’s just that our market research showed that so few African-Americans wanted to come to Ferguson for some reason that we figured they were an underserved demographic for us. Then we heard from two different restaurants in town that they actually don’t serve African-Americans, which we obviously misunderstood the meaning of. And who doesn’t make mistakes? That’s why pencils come with erasers. We feel really bad.”

    “But the saddest part of all is that so many people are going to miss some of the great attractions we have here in Ferguson. We have a movie theatre, which we now hope will not be burned down, and the Rite Aid is still open despite the plywood they now have up. For military buffs, the National Guard is going to hold some sort of parade soon. And we heard the state is considering legalized casino gambling, so keep us on your vacation radar.”

    “But maybe wait a week or so.”



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    Barrett Brown: The Criminalization of Web Links

    March 7, 2014 // 20 Comments »

    This– A LINK— could have sent me to jail. Another link came very, very close to sending Barrett Brown to jail.

    First, a quick recap of how the internet works. People from all over the world put stuff on the web (“posts”). In many cases you the viewer do not know who posted something, when they did it, where they live or where they obtained the information they posted. It is just there on your screen. If the info is of interest, you can link to it, sending instructions via chat, email, HTML, Facebook or whatever to someone else, telling them where to find the information.

    The act of linking is analogous to saying “Hey, did you see that article in the Times on page 4? Check it out.” It is kind of what the internet is about. Here’s how the government seeks to criminalize linking from one article on the web to another.

    The United States v. Barrett Brown

    Barrett Brown is an internet guy. He may or may not have been involved with web naughty boys Anonymous and most certainly was deeply involved with broad free speech issues online. In 2011 Brown posted a link in a chatroom, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence. The link pointed to the Wikileaks site.

    The government arrested Brown and charged him with a number of offenses, the most significant of which was for posting that link. The link, the government contended, exposed enormous amounts of credit card information, a crime. Not mentioned by the government, the link also documented discussions of assassination, rendition and how to undermine journalists and foreign governments.

    To be clear, neither the government nor anyone else accused Brown of stealing the info himself, or misusing the info to use others’ credit cards, physically possessing the information, hosting it on a server he controlled or anything like that. His crime was simply linking to data that already existed on the internet and which was already available worldwide for viewing.

    (To be further clear, Brown is no choirboy. He was once addicted to heroin, is accused of threatening an FBI agent on YouTube and who knows, may be mean to strangers. And so what. What matters is his actions, not his Match.com profile.)

    Browns Wins, Though Broader Issues Remain

    The Electronic Freedom Foundation (EFF) supported Brown throughout his arrest. Because the government imposed a gag order on Brown speaking publicly about his situation, friends such as the EFF were critical in keeping the case in the public eye. The significance of Brown’s case was made quite clear by the EFF:

    The U.S. Attorney for the Northern District of Texas today [March 5, 2014] filed a motion to dismiss eleven charges against Barrett Brown in a criminal prosecution that would have had massive implications for journalism and the right of ordinary people to share links. EFF has written extensively about the case and had planned to file an amicus brief on Monday on behalf of several reporters groups arguing for the dismissal of the indictment.

    Brown, an independent journalist, was prosecuted after he shared a link to thousands of pages of stolen documents in an attempt to crowdsource the review of those documents—a common technique for many journalists. The records came from the US government contractor, Stratfor Global Intelligence and documented discussions of assassination, rendition and how to undermine journalists and foreign governments. They also included thousands of stolen credit card numbers. Brown had no involvement in the hack, but was charged nonetheless with identity theft.


    Looking for a Test Case

    Though the government in its Motion to Dismiss gave no reasons for its decision, the implication is that while the government was clearly looking to set a precendent on the Brown case, it did not want that precedent to be a loss. Better to let a small fry like Brown swim away than risk the greater principle the government seeks.

    Having failed to find any legal or otherwise effective way to deal with sites like Wikileaks, or the publication of classified materials elsewhere on the internet, the government is taking a side-step in seeking to punish those that use, view or handle the material itself.

    U.S. Government Orders its Employees to Not Look at Wikileaks and Others

    For example, when the Wikileaks information first started pouring out across the web, most government agencies blocked access to the data via their firewalls, claiming the content was still classified and thus could not be viewed on a government computer even while it could be viewed on any other web-connected computer from Cleveland to Karachi. Similar blocks have been put in place to prevent much of the Snowden material from being viewed at work.

    Before Barrett Brown, Me

    The attempt by the government to punish people for links to “objectionable” material did not start with Brown. Though I can’t promise I was the first test case, I was certainly an early attempt.

    In 2010 the Department of State suspended the Top Secret security clearance I had held without incident or question for over twenty years because I linked to a supposedly classified document on the Wikileaks site from this blog.

    State referred my linkage to the Department of Justice for prosecution in fall 2010. When Justice declined without reason to pursue the case, State took the non-judicial action of “temporarily” suspending my security clearance indefinitely, because of the link. State claimed that via that link I revealed classified information publicly, a major no-no for cleared personnel and sought to fire me. As in the Brown case, in the end State choose not to pursue charges, again without comment.

    There may be other such link cases out there that we do not yet know of. They may be classified, or the parties involved may be under gag orders as was Brown.



    Who’s Next?

    There appears little question that the government is testing the concept, looking for a case that it can win that would criminalize linking. From the government’s point of view, the win would pay off handsomely:

    — With use of their content criminalized, sites like Wikileaks would slip beneath the world radar. People would be increasingly afraid of reading them, and the crowdsourcing critical to sifting through millions of documents would slow down significantly.

    — In cases the government saw as particularly dangerous, people would disappear into jail. With a precedent set in a “good” test case, winning such prosecutions would be rote work for interns. Is there a link? Did Ms. X create the link? Does the link go to classified information? It’s a slam dunk.

    — Best of all from a control standpoint, prosecuting links will have a chilling affect. Many people will simply be afraid to take the chance of legal trouble and stop creating links or following them. That will certainly be the case among the main stream media, already far too skittish about security matters. One wonders what effect such prosecuting of links will have on search engines like Google, essentially little more than a collection of links.

    Another step toward a post-Constitutionalization of America is the creeping criminalization of everything. If every act is potentially cause for prosecution, the ability of the government to control what people do or say grows.

    So while we still can, better hit these links: Wikileaks, Cryptome, some Snowden. Who could have guessed that in 2014 a click of the mouse would be a subversive act?



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    Qaddafi: Mission Accomplished

    October 21, 2011 // Comments Off on Qaddafi: Mission Accomplished

    It is always sad when friends depart. Qaddafi was hated, then loved, the hated once again by the West. But, for that brief shining moment, we have our… memories.








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