Why hasn’t the U.S. government arrested WaPo journalist Shane Harris for publishing highly classified documents related to the war in Ukraine and U.S. spying on its allies? The ones leaked by Air national Guardsman Jack Teixeira?
The documents contain significant revelations. Among other secrets, they show the CIA recruited human agents privy to the closed-door conversations of world leaders, reveal eavesdropping that shows a Russian mercenary outfit tried to acquire weapons from NATO ally Turkey to use against Ukraine, explained what kind of satellite imagery the United States uses to track Russian forces, and made clear U.S. and NATO have special forces on the ground inside Ukraine.
Why Shane Harris is not in jail has a long history, and a complex answer. In 1971, Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act (the same law under which Jack Teixeira is charged.) A federal court ordered the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper via prior restraint. In the end, the Supreme Court reversed the lower courts and handed down a victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ever since media have published national security secrets as they found them.
Law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause. The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
The Supreme Court left the door open for the prosecution of journalists who publish classified documents by focusing narrowly on prohibiting prior restraint. Politics and public opinion, not law, has since kept the feds exercising discretion in not prosecuting the press, a delicate dance around an 800-pound gorilla loose in the halls of democracy.
The closest an American journalist ever came to being thrown in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. They then accused former CIA officer Jeffrey Sterling of passing classified information to Risen. After a lower court ordered Risen to testify and disclose his source under threat of jail, the Supreme Court turned down his appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether the First Amendment implied a “reporter’s privilege,” an undocumented protection beneath the handful of words in the Free Press Clause.
In the end, the Obama administration, fearful of public opinion, punted on Risen and set precedent extra-judicially. Waving a patriotic flag over a messy situation, then-attorney general Eric Holder announced that “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and wasn’t punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into prison for three and a half years. To avoid creating a precedent that might have granted some form of reporter’s privilege under the Constitution, the government set a different precedent and stepped away from the fight. That’s why Shane Harris of the Washington Post isn’t under arrest right now. For traditional media American journalists like Shane Harris, the Risen case was a turning point.
Meanwhile Wikileaks’ Julian Assange is under arrest, rotting away in his fifth year in a UK prison fighting extradition to the United States. There are complex legal questions to be answered about who is a journalist and what is publishing in the digital world — is Assange himself a journalist like Risen or a source for journalists like Sterling was alleged to be? There is no debate over whether James Risen is a journalist and whether a book is publishing. Glenn Greenwald has written about and published online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher.
Assange isn’t an American, so he is vulnerable. He is unpopular, drawn into America’s 21st-century Red Scare for revealing the DNC emails. He has written nothing alongside the primary source documents on Wikileaks, has apparently done little curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied. The government would argue Assange is not entitled to First Amendment protections simply by claiming that a mouse click and some web code isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) of the Espionage Act, that Assange willfully transmitted information relating to national defense without authorization, would apply. He would be guilty, same as the other canaries in the deep mine shaft of Washington before him, no messy balancing questions to be addressed. And with that, a unique form of online primary source journalism would be made extinct.
And that really, really matters. Wikileaks sidestepped the restraints of traditional journalism to bring the raw material of history to the people. Never mind whether or not a court determined disclosure of secret NSA programs which spied on Americans disclosure was truly in the public interest. Never mind the New York Times gets a phone call from the President and decides not to publish something. Never mind how senior government officials are allowed to selectively leak information helpful to themselves. Never mind what parts of an anonymous technical disclosure a reporter understood well enough to write about, here are the cables, the memos, the emails, the archives themselves. Others can write summaries and interpretations if they wish (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange and his sources traitors), or you as an individual can simply read the stuff yourself and make up your own damn mind about what the government is doing. Fact checks? There are the facts themselves in front of you. That is the root of an informed public, through a set of tools and freedoms never before available until the internet created them.
Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all of what’s left of the press. If Assange becomes the first successful prosecution of a third party under the Espionage Act, the government can then turn that precedent into a weapon to aggressively attack the media’s role in national security leaks. Is a reporter, for example, publishing a Signal number in fact soliciting people to commit national security felonies? Will media employees have to weigh for themselves the potential public interest, hoping to avoid prosecution if they differ from the government’s opinion? The Assange case may prove to be the topper in a long-running war of attrition against free speech.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The weird days are the ones where Iran is more honest and just than America.
The Iranian Model
Mahafarid Amir Khosravi, an Iranian billionaire businessman at the heart of a $2.6 billion state bank scam, the largest fraud case since the country’s 1979 Islamic Revolution, was executed Saturday, Iranian state television reported.
Authorities put the swindler to death after Iran’s Supreme Court upheld his death sentence. The fraud involved using forged documents to get credit at one of Iran’s top financial institutions, Bank Saderat, to purchase assets including state-owned companies.
A total of 39 defendants were convicted in the case. Four received death sentences, two got life sentences and the rest received sentences of up to 25 years in prison.
That’d be one way to enforce financial laws and protect against wealthy people misusing the system for their own personal gain, never mind the consequences for the greater society. Here’s another way.
The American Way
How many executives have been convicted of criminal wrongdoing related to the crushing U.S. financial crisis of 2008?
The Department of Justice doesn’t know. That’s because the Department doesn’t keep count of the numbers of board-level prosecutions. In a response to a March request from Senator Charles Grassley, the Justice Department said it doesn’t hold information on defendants’ business titles. “Consequently, we are unable to generate the comprehensive list of Wall Street convictions stemming from the 2008 meltdown.”
Quick aside: The Department of Justice not only keeps exact track of the number of terrorists it prosecutes, it lists them in detail on a publically available “fact sheet” on its web site. No need for a Senator to even ask.
Not a Big Number
Back to America’s financial “terrorists.” C’mon, really, how many were prosecuted? “It’s not a big number to count, that’s for sure,” said Chris Swecker, who ran the Federal Bureau of Investigation’s criminal division from 2004 to 2006. A spokeswoman for the Justice Department said the numbers of financial-fraud cases being brought has increased since the crisis, though it is of course unclear how she could know that since apparently no one at DOJ keeps a count. “I can tell you why you wouldn’t keep the data,” William Black, a former bank regulator, said. “Because it would be really embarrassing.”
Still, credit where credit is due (get it?). DOJ did prosecute one known case of alleged wrongdoing directly related to the financial crisis: criminal charges filed against all of three former Credit Suisse employees for allegedly inflating mortgage-bond values and tax evasion. Credit Suisse is of course not an American company. Nobody went to jail or was executed, but the company did pay a hefty fine. Even then, the Credit Suisse prosecutors were instructed to consult the Federal Reserve about the potential fallout from the case.
More prosecutions to follow? Maybe not. Head of the Department of Justice Eric Holder said he understands “the public desire to, as one pundit put it, ’see the handcuffs come to Wall Street.’ We’ve found that much of the conduct that led to the financial crisis was unethical and irresponsible. But we also have discovered that some of this behavior, while morally reprehensible, may not necessarily have been criminal.”
OK, It’s Zero
While the Department of Justice can’t seem to figure out how many prosecutions it has pursued following the financial crisis of 2008, Reuters can. They report “In the United States, home to Lehman Brothers, no top executives at large Wall Street or commercial banks have been convicted of criminal charges relating to the 2008 crisis.”
Why is that? Reuters also knows that. Basically it is just so gosh darn hard to do. “At issue is the difficulty in pinning the blame on any one person for risks and decisions taken throughout a firm – one of the main obstacles to building such cases so far. ‘It’s a case of the confused lines of responsibility and accountability,’ said Judith Seddon, director in law firm Clifford Chance’s business crime and regulatory enforcement unit in London. ‘When you’re pursuing an individual, if they’ve delegated responsibilities… it’s much more difficult in a big organization.'” They add: “U.S. regulators’ approach since the crisis has reflected some of these challenges.”
Execute the Rich
So, for those keeping track of these things where the Department of Justice is not, here’s a quick tally from the crisis of 2008:
Credit Suisse: Three people prosecuted, company paid a fine.
Bank of America: No officers prosecuted.
Bear Stearns: No senior officers prosecuted.
Citigroup: No officers prosecuted.
Goldman Sachs: No senior officers prosecuted.
J.P. Morgan Securities: No officers prosecuted.
UBS Securities: No officers prosecuted.
Wachovia Capital Markets: No officers prosecuted.
Wells Fargo: No senior officers prosecuted.
We’ll give this round on points to the Iranians.
(No bankers were harmed in writing this blog post)
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
With income tax season in the U.S. in full swing, all thoughts turn to cheating.
It has been said that perhaps some Americans are not fully honest on their tax reporting. Some may “forget” to report cash payments here and there, and more than a few will likely exaggerate business and other expenses to score a deduction. It’s a kind of tradition, one that lessens how much tax money the government gets from us Citizens.
Payback
So I guess in that context Attorney General and head of the Department of Justice Eric Holder, and former FBI Director Robert Mueller taking advantage of a loophole to not report lots of personal travel at taxpayer expense is just some payback on all you cheaters.
The Government Accounting Office (GAO) works directly for the Congress. In a recent report to the Senate Judiciary Committee, the GAO reminds that federal agencies are usually required to report trips taken by senior officials on government aircraft unless the trips are classified. The point of this reporting is to make sure officials are not using taxpayer money to fly government planes for personal travel (“non-mission purposes.”)
Exemptions
But wouldn’t you know it, the General Services Administration, the executive branch’s kind of one-stop administrative and office manager, created a handy reporting exemption that covers intelligence agencies, even in cases of unclassified personal travel. A CIA official, even if using a government airplane to visit her son at college, would not have to report that misuse to the supposed watchdog agency because of that exemption. The exemption as written by the executive branch never defined what constitutes an “intelligence agency” for this purpose.
The GAO learned that Holder and Mueller decided on their own, again without oversight, that the intelligence agency exemption also applied to them. They never reported their personal use of government aircraft. GAO investigators, however, pried loose enough information to show Holder, Mueller and other Justice Department executives took 395 unclassified, non-mission flights between fiscal years 2009 and 2010, at a cost to taxpayers $7.8 million. Maybe that’s chump change dollar-wise in the overall flood of government waste and fraud, but it certainly does not set a good example when two of the nation’s top law enforcement officials cheat over chump change.
Worse yet, the GAO found Holder’s use of FBI aircraft, which are supposed to be reserved for the agency’s own operations, could hinder the agency’s operations. Since the FBI always has to have a plane on standby for emergency purposes, the agency has had to lease another aircraft while theirs was being used to ferry Justice Department officials.
It’s OK
Anyway, after having been caught red-handed abetting stealing from the public trough, the General Services Administration promised to eliminate the intelligence exemption applying to non-mission, unclassified travel sometime soon. The Department of Justice made no comments on the matter.
BONUS: Secretary of State John F. Kerry, headed to the Ukraine for some effective diplomacy in early March, had his government aircraft detour on his way, stopping in New York so he could meet his just-born granddaughter. State Department officials later characterized the detour as a “refueling stop.” It is unclear what State Department officials called the taxpayer motorcade from the airport to the hospital as.
BONUS BONUS: Senior executives at the Internal Revenue Service were spending hundreds of thousands of tax dollars commuting to Washington from their homes across the country, instead of living in D.C. Many then skirted the law by not paying income tax on their hefty travel reimbursements, as ordinary Americans are required to do. An IRS source told The Atlanta Journal-Constitution that the most frequent travelers were officials who work in Washington but live in Dallas, Minneapolis and Atlanta, and have been flying to work on the taxpayers’ dime for years.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Attorney General Eric Holder told Congress that U.S. drone strikes since 2009 have killed four Americans — three of whom were “not specifically targeted.”
As Dangeroom reports, for all the effort that Obama has gone to in asserting that its drones only kill the people that the administration selects to kill, Holder wrote in a letter to Senator Patrick Leahy that Samir Khan, 16-year-old Abdulrahman Awlaki and Jude Kenan Mohammad were “not specifically targeted by the United States.” The fourth American to die in a drone strike since 2009 was Abdulrahman’s father Anwar Awlaki, an al Qaeda propagandist who never fired a shot in anger, but whom the U.S. killed in Yemen in 2011.
I have re-read the Constitution and it says nothing about the Bill of Rights not applying to Americans who join terror groups. The Fifth Amendment to the Constitution guarantees “no person shall be deprived of life without due process of law” and include no exceptions for war, terrorism, or being a really bad human being.
I don’t like terrorists, but I do love our Rights as Citizens. If you support rights such as the Second Amendment’s right to bear arms for example, you gotta also take the rest. It is not a menu.
Well, some say, the police shoot criminals who pose an imminent threat without due process all the time. True enough, but the police shootings are often unjustified, but when they are the event happens spontaneously and the cop has to make a life-or-death decision in a split second. The drone killings are planned and well-thought out– premeditated murder.
Drones are surgical strikes, precision smiting of only America’s worst enemies? Then how come the White House admits that three of the four Americans it killed were “not specifically targeted.” In other words, fatal mistakes, collateral damage. Same dead Citizens.
The actual acknowledged death count of Americans killed by their own government is five. Prior to the Obama administration, Kamal Derwish died in a strike launched in Yemen in 2002 under George W. Bush.
We have survived as a nation a very long time without having to resort to this. Why now? Are terror groups so uniquely and specially dangerous? No, of course not. What has happened is that a technology– drones– has morphed into a policy. Obama falsely thinks the drones are clean and of little risk. By stepping off the edge and throwing out the Constitutional protections we have enjoyed for so many years, and for which so many have fought and died, he is doing more damage to America than some bomb. The arguments are old, but I guess we need to roll them out once more: once you unleash the authority to kill you do not know where it will stop. Once you start killing to prevent the possibility of a future act, where will it stop? Once you start creating unconstitutional exceptions to the Constitution, where will it stop? Blasting away a slug like Awlaki is not worth this.
Can’t happen here? FBI Director Mueller, appearing before a House subcommittee, said that he simply did not know whether he could order an assassination of his own against an American here in the U.S. “I have to go back. Uh, I’m not certain whether that was addressed or not” and added “I’m going to defer that to others in the Department of Justice.”
The Constitution was drafted to protect especially citizens whose actions were disfavored by the majority. We cannot let terrorism change the very fabric of America. We must stop now and see past the anger and fear to the bigger picture. This is the government assassinating U.S. citizens without even an indictment–much less a trial. We should all be concerned.
And afraid. I don’t like that as an American I must live in fear.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Uberfurher der Obama Reich Eric Holder of course famously announced this week that the Government of the United States now asserts that it has the legal right to kill American Citizens (foreigners were always fair game) abroad when Der Furher determines said Americans are terrorists. If you have not read my renunciation of this horrific turn of events, please do read it on this blog, or at the Huffington Post.
The US-sanctioned assassinations of native-born American Citizen al Zawaki and his 16 year old American Citizen son were the unspoken centerpieces of Uberfurher Holder’s speech. Those murders were carried out using US military drones, bureaucratically assigned to CIA “control” in the air over Yemen. The illusion of CIA (i.e., civilian) control of the drones even though it was likely a pair of rugged military hands on the stick is needed to keep within the letter of the law Obama still wishes to follow, those still-secret naughty post 9/11 decrees that grant the CIA hunting rights to the entire planet. Military actions abroad require more internal US government paperwork, so whenever a drone strike will cross that bureaucratic line, they just say it was a CIA op. Indeed, the kill mission that whacked bin Laden was officially classified as a CIA op, even though the murderers were US military Seal Team 6 members in uniform. Nice to know there are still some rules, right?
Given that there are rules, albeit rules no one outside a very tight group in the Reichstag know, FBI Director Mueller’s remarks on Wednesday are very, very frightening.
Mueller, appearing before a House subcommittee, said that he simply did not know whether he could order an assassination of his own against an American here in the US. “I have to go back. Uh, I’m not certain whether that was addressed or not” and added “I’m going to defer that to others in the Department of Justice.”
Note that Mueller indeed had the option of saying flat-out “No, no, the FBI can’t order an American killed in the US” or maybe “No, even the President can’t order a hit on an American here in the US where the full judicial system, Constitution and other protections apply.”
Nope, Mueller did not say those things.
Instead, in 2012 under oath before Congress, the senior G-man of the United States, who to get his job had had to swear an oath to uphold the Constitution, was so worried about perjury that he was unable to say whether or not the US government can indeed kill, murder and otherwise assassinate one of its own Citizens inside the United States without trial.
Now, who’s ahead on Idol? You guys think Snooki is really preggers or is that just a PR stunt? She is sooo hawt!
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
(This post also appeared on the Huffington Post on March 6, 2012)
Historians of the future, if they are not imprisoned for saying so, will trace the end of America’s democratic experiment to the fearful days immediately after 9/11, what Bruce Springsteen called the days of the empty sky, when frightened, small men named Bush and Cheney made the first decisions to abandon the Constitution in the name of freedom and created a new version of the security state with the Patriot Act, Guantanamo, secret prisons and sanctioned torture by the US government. They proceeded carefully, making sure that lawyers in their employ sanctioned each dark act, much as kings in old Europe used the church to justify their own actions.
Those same historians will remark from exile on the irony that such horrendous policies were not only upheld by Obama, a Nobel Peace Prize winner and professor of Constitutional law, but added to until we came to the place we sadly occupy today: the Attorney General of the United States, Eric Holder, publicly stating that the American Government may murder one of its own citizens when it wishes to do so, and that the requirements of due process enshrined in the Constitution’s Fifth Amendment, itself drawn from the Magna Carta that was the first reflowering of basic human rights since the Greeks, can be satisfied simply by a decision by that same President.
Today will thus be remembered as the day we gave up. No more clever wordplay (enhanced interrogations, “patriot” act, targeted killing, kinetic operations) but a simple declaration that the US Government will kill its own citizens when it wishes to, via a secret process we, and our victims, are not allowed to know or contest.
Brevity in Our Freedom
Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity and clarity. When you are saying something true, pure, clean and right, you often do not need many words: “…nor be deprived of life, liberty, or property, without due process of law.”
There are no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for war, terrorism, mass rape, creation of concentration camps, acts of genocide, child torture or any evil. Those things are unnecessary, because in the beauty of what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government would be made up of us, the purpose of government was to serve us, and the government would be beholden to us. Such a government would be incapable of killing its own citizens without care and debate and open trial.
With the excuse all tyrants proclaim, protecting the nation, on or about September 30, 2011 a US drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States and tragically devoted to al Qaeda. A few days later the US also killed al Zawaki’s 16 year old American Citizen son. The US had shot at the elder al Awlaki before, on May 7, 2011 under Obama’s orders, and under the Bush administration. Before the US government killed his son, attorneys for al Awlaki’s father tried to persuade a US District Court to issue an injunction preventing the government killing of al Awlaki. A judge dismissed the case, ruling the father did not have standing to sue. This was the first time in our nation’s history that a father sought to sue to prevent the government from extra-legally killing his son. The judge in the case surrendered to his post-9/11 fear and wrote that it was up to the elected branches of government, not the courts, to determine whether the United States has the authority to murder its own citizens by decree.
Fear Shaped by Lies to Compel Compliance
In his speech, Attorney General Holder said things no honest man would ever believe would be said by the highest law officer in the United States.
Holder said “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’”
Holder thus also declaimed that the victim also has no right to a defense, no right to speak on his behalf, no right to examine and refute the evidence against him and no right even to know his life will be taken under the decision of a few men in Washington. Indeed, Holder made clear that the government’s decision to kill overshadowed the right to self-defense in saying “An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.”
Holder said he rejected any attempt to label such operations assassinations, invoking the same airbrush of lawfulness that fueled the Inquisition, the Salem Witch Trials and the Holocaust. “Assassinations are unlawful killings. The US government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful.”
Sluts All
So while the popular media remembers today as the day Rush apologized for calling someone a slut and Republican candidates ignored the wave of history to carp about birth control, historians will look back on March 5, 2012 as the day America gave up on its experiment with unalienable rights, rights that are natural, not given, rights independent of governments, what our Declaration explained to an unsure forming nation as “Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
America was different. We became a country not based on a common language, or religion or anything else except adherence to a common set of beliefs, our Bill of Rights. When you take that away, there is nothing left in common, and goddammit Eric Holder and Barack Obama know that.
The saddest part of a very sad day: the majority of Americans– the consent of the governed– seemingly do not care what Holder said, and are even now bleating on internet forums and likely in comments below to this article about the need to kill more, adding terrified, empty justifications to Holder’s clever statements. We did not have our freedom taken from us, we gave it away.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Are we doing this again? Exaggerating a minor threat to justify a major war-like response by the US?
I doubt the Iranians planned to blow up stuff in Washington DC.
Now, if you generously include every person employed by or remotely connected to the power structure in Iran, including some rogue nutter, then maybe this a “government plot.”
But if you try to sell this as a state-sponsored action by the Iranian Government, as Eric Holder conveniently is trying to do coincidentally at the same time he is under fast and furious fire, maybe not.
If Iran wishes to (continue) attacking the US and Israel, they need only (continue) to do so through proxy forces in Iraq, Lebanon and elsewhere.
Iran striking so transparently in Washington DC *DEMANDS* a war-like response from the US and Israel. The Iranians have not shown a desire to pick that kind of fight.
Wiring money from Tehran, through New York to Mexico? Making direct voice calls to Iran? This is not cloak and dagger tradecraft. The Iranians might as well have bought commercial time during the MLB playoffs.
And who to fight the fight? Trained Qods commandos? Experienced operatives from the Lebanese battlefields? Nah, how about some used car salesman. Even if Iran was persuaded this American could operate quietly, they would have used him to assist serious bad guys, not do the job.
And for the cartels, $1.5 million bucks is what, a pickup truck full of dope they run across the border six times a day? Why risk the full fury of the US military for pocket change?
Sure, governments can do dumb things. But this just does not add up. Too much theatre, not enough sense.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.